H-1B Transfer Process Explained

Navigating the complexities of transferring an H-1B visa requires a thorough understanding of the process, eligibility criteria, and necessary documentation. Whether you’re considering changing employers within the United States or exploring new opportunities, a clear grasp of the steps involved will facilitate a smooth transition. This comprehensive guide provides insights into the H-1B transfer process, including eligibility requirements, documentation, timelines, legal considerations, and frequently asked questions. Understanding these intricacies is essential for both employers and H-1B visa holders to ensure compliance with regulations and facilitate a seamless transfer.

Understanding H-1B Transfer

When considering an H-1B transfer, it is essential to understand the intricacies of the process, the eligibility criteria, and the documentation required. A clear grasp of the timeline and steps involved will equip you for a smooth transition.

H-1B Transfer Overview

An H-1B transfer allows you, a current H-1B visa holder, to change employers within the United States while maintaining your H-1B status. Unlike the name suggests, it is not a simple transfer; your prospective employer must file a new H-1B petition on your behalf, which is not subject to the annual H-1B cap. This petition involves submitting a Labor Condition Application (LCA) to the Department of Labor (DOL) to affirm that your employment conditions meet standard regulations.

Eligibility and Documentation

To be eligible for an H-1B transfer, you must have a job offer from a U.S. employer for a specialty occupation that requires the theoretical and practical application of a body of highly specialized knowledge. Your qualifications must include at least a bachelor’s degree or its equivalent in the specific specialty. Required documents often include your:

• Resume
• Current H-1B visa documentation
• Passport
• Recent pay stubs
• Receipt number from your current H-1B petition

Transfer Process and Timeline

To initiate the H-1B transfer process, your new employer must file Form I-129, Petition for a Nonimmigrant Worker, with the United States Citizenship and Immigration Services (USCIS). Here is a brief overview of the process:

1. Job Offer: Secure a valid job offer for a specialty occupation.
2. Employer Submits LCA: The new employer files an LCA with the DOL.
3. Petition Filing: Upon LCA approval, the employer submits Form I-129 to the USCIS along with the LCA and supporting documents, including evidence of your qualifications.
4. Payment of Fees: The employer pays the required fees, which may include the premium processing fee if expedited service is desired.
5. Receipt Notice: After filing, you receive a receipt number as confirmation.
6. Processing Time: The standard processing time can vary from 1 to 6 months. With premium processing, a response may be received within 15 calendar days.

Premium Processing is an optional service available for an additional fee, providing expedited processing for certain employment-based petitions and applications. With the receipt notice, a foreign worker may begin employment with the new employer upon receiving the notice of receipt from the USCIS.

Tips for a Smooth H-1B Transfer to a New Employer

For H-1B visa holders looking to switch jobs, transferring their H-1B petition to the new employer is required to maintain valid status. However, the logistics around timing resignation, initiating the transfer, and understanding processing timelines can be confusing.

One person outlined their situation: “This will be the first time I am moving to a different employer while on H-1B status. When is the best time for me to submit resignation from my current job, knowing I’ll give the standard 2-3 week notice period? And how long is the H-1B transfer process currently taking?”

According to the responses, here are some key recommendations for managing the transfer process smoothly:

Give Yourself a Buffer Before Resigning

“I wouldn’t resign from your current employer until you have received a receipt notice from USCIS for the H-1B transfer petition filed by your new employer.” This receipt notice indicating petition was properly filed allows you to lawfully remain in status.

Understand Current Transfer Timelines

“For H-1B transfers nowadays, if you do standard processing it is taking around 2-3 months from petition filing to approval. With premium processing, you can get approval within 2 weeks after submission.”

Request Premium Processing if Needed

Based on your start date with the new employer, your immigration lawyers may advise requesting premium processing for the transfer, despite the $2,500 fee, to ensure it is approved in time.

Be Prepared for a “Bendover” Period

“There is often a ‘bendover’ period of 1-2 weeks where you have resigned from your old job but can’t start the new one until the transfer goes through.” Have enough savings to cover this period.

Don’t Travel Outside the U.S.

“Under no circumstances should you leave the U.S. once you resign from your current employer, until the H-1B transfer has been approved.” Doing so can technically invalidate your status.

Communicate Expectations Clearly

Ensure both employers and yourself are aligned on details like start dates, termination timeline with current employer, and responsibilities during the “bendover” period to avoid surprises.

While stressful, being organized and having proper documentation ready for the new employer can help make an H-1B transfer go as smoothly as possible. Working closely with experienced immigration attorneys is highly recommended to ensure no status lapses.

Employment and Legal Considerations

When undertaking an H-1B transfer, it is imperative to understand the responsibilities and obligations that come with a change in employment. Compliance with legal requirements is crucial for both the new employer and you, the H-1B visa holder.

New Employer Responsibilities

Your new employer must ensure that the job qualifies as a specialty occupation—a role that typically requires specialized knowledge and a bachelor’s degree or higher. On making you an offer letter, they are required to file a Labor Condition Application (LCA) for you and obtain certification. The LCA confirms the job’s wage meets or exceeds the prevailing wage for the occupation.

Furthermore, your prospective employer is responsible for submitting an H-1B transfer petition to USCIS. This includes payment of the Public Law Fee and the Fraud Prevention and Detection Fee when necessary. They should maintain proper documentation, including tax returns and proof of the ability to pay the offered salary.

Employee Rights and Obligations

As an H-1B visa holder seeking a transfer, you have the right to change employers while maintaining your visa status. However, you must:

• Hold a valid H-1B visa and not violate any of your visa conditions.
• Provide your new employer with all necessary supporting documents, such as copies of your current visa, prior H-1B approval notices, social security card, resume, and proof that you have maintained legal status (like recent pay stubs and tax returns).
• Verify the start date with your new employer is either the date approved by USCIS or within 60 days of your employment authorization document (EAD) expiration.

Legal Assistance and Compliance

To navigate the intricacies of an H-1B transfer, consulting an immigration attorney can be a strategic move to ensure all legal procedures are correctly followed. The attorney can help with:

• Ensuring the transfer requirements are met.
• Advising on any state license requirements relevant to your specialty occupation.
• Reviewing the strength of your H-1B petition including your job offer, supporting documents, and salary.
• Explaining any potential attorney fees associated with the petition and transfer process.

Staying informed on the employment and legal considerations during an H-1B transfer is paramount. Ensuring you and your new employer comply with all regulations will facilitate a smooth transition.

Frequently Asked Questions

In this section, you’ll find detailed responses to some of the most common inquiries regarding the H-1B visa transfer process to guide you through your transition.

What is the timeline for an H-1B visa transfer?

The timeline for an H-1B transfer varies, but it usually takes 1 to 4 months. To expedite the process, you can opt for premium processing which shortens the timeframe to about 15 calendar days.

What are the steps involved in the H-1B visa transfer process?

You’ll begin by obtaining a job offer from the new employer, who will then file an H-1B visa petition on your behalf. Your new employer must file Form I-129, and you needn’t leave the U.S. during this process. This is a crucial step in transferring your H-1B visa.

From when can an individual start working after initiating an H-1B transfer?

You may start working for your new employer as soon as they receive the receipt notice of the new H-1B petition from USCIS, due to the portability provisions of the American Competitiveness in the Twenty-First Century Act (AC21).

What are the associated fees with transferring an H-1B visa?

There are several fees associated with an H-1B transfer, including the basic filing fee for Form I-129 and potentially the American Competitiveness and Workforce Improvement Act (ACWIA) fee. Your new employer will typically cover these H-1B transfer fees.

What is the status tracking procedure for an H-1B visa transfer?

Once your application has been submitted, you can track the status of your H-1B visa transfer through the USCIS online case status tracking tool.

How often are H-1B visa transfers denied, and what are the common reasons?

The denial rate for H-1B visa transfers isn’t shared publicly. However, transfers may be denied due to incomplete applications, violations of status or the terms of employment, or if USCIS deems the new job doesn’t qualify as a specialty occupation.

Frank Gogol

I’m a firm believer that information is the key to financial freedom. On the Stilt Blog, I write about the complex topics — like finance, immigration, and technology — to help immigrants make the most of their lives in the U.S. Our content and brand have been featured in Forbes, TechCrunch, VentureBeat, and more.

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