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The H-1B visa is a non-immigrant work visa designed for specialty occupations and allows you to work only for a specific employer.
So what if you have a new job offer, and wish to work for a different employer? In this case, you will need to transfer your H-1B visa. Keep reading to learn more about the H1B transfer process.
What is an H-1B Visa Transfer?
Transferring an H-1B visa means starting to work for a new employer while holding an H-1B status with a current employer. It is important to ensure that the new job offer and employer meet the eligibility requirements for an H1B visa, just as in the initial H-1B application.
How Can I Change My Employer While Maintaining H-1B Status?
It is crucial that you do not violate your current status when transferring your H-1B. Therefore, continue to work for your current employer until your transfer process is completed. If this is not possible, at least try not to violate your 60-day grace period.
What are the Requirements for the H-1B Visa Transfer?
- Secure a new job offer from a different U.S. employer.
- Make sure the job you are being offered is still a professional occupation that requires at least a bachelor’s degree.
- Ensure the employer will and can pay at least the prevailing wage paid to similar workers in that geographic area. The company’s financial documents must prove that the employer is able to pay the prevailing wage.
- Verify that the required fees are paid in full and accurately by your employer on the application.
- Do not violate your current H-1B status until your case is approved.
Do I Need Permission from My Previous Employer?
You do not need any permission from your current employer to transfer your H-1B visa. However, be careful not to lose your status, if your current employer terminates your employment agreement due to any conflict.
Can My Current Employer Prevent H-1B Visa Transfer?
As stated above, employer permission is not required for the H-1B transfer. However, to transfer your H-1B visa, you need to maintain your current H-1B status. Once your employer terminates your employment agreement, your H-1B status becomes invalid. This does not mean that you have lost your status. The United States Citizenship and Immigration Services (USCIS) allows a 60-day grace period after the termination of your employment. Your H-1B transfer application must be submitted before your grace period ends.
What are the Steps in the H-1B Visa Transfer Process?
The H-1B visa transfer process can be technically considered a new H-1B petition. Therefore, it is not much different from your first H-1B application. Except for the lottery part. You do not need to register a lottery again for an H-1B visa transfer and have that lottery result in your favor. The steps to be taken are as follows.
Step 1
Secure a new job offer from a different US employer.
Step 2
The new employer submits Labor Conditions Approval LCA through the FLAG system to the Department of Labor (DOL). LCA certification typically takes 7 business days.
Step 3
Once the LCA is approved, the new employer can submit the Form I-129 package, including the supporting documents.
Step 4
You can start working for the new employer as soon as the employer files the Form I-129 petition, and wait for your approval while working.
What Documents Are Required For an H-1B Visa Transfer?
Documents Requested from the Sponsor Employer:
- Current financial documents to prove the company’s financial adequacy to cover the specified wage for the job (e.g., recent tax return documents, financial statements, annual reports, etc.)
- Printed promotional materials or brochures of the company
- A copy of the detailed job description, including minimum requirements for the position
- A copy of the employment contract and/or job offer letter
- If the company has not previously filed an LCA application, a document issued by the IRS for the company
Documents Requested from the Employee:
- Copy of passport (including all U.S. visas);
- Copy of I-94 (if currently in the United States)
- Copy of university transcript for each university attended
- Relevant university diplomas
- Copy of license necessary to practice in the specialty occupation (if applicable)
- A current resume or CV
- Copy of any previously obtained I-797 approval notices
- SSN (Social Security Number) card
- Copy of I-140 Immigrant Visa Petition approval (if applicable);
- Copies of the last 3 pay stubs for your current employer.
Who Pays the Filing Fees for the H-1B Visa Transfer?
All fees must be paid by the employer, except for the premium processing fee. This fee is allowed to be paid by both the employer and the employee.
What is a Request for Evidence (RFE)?
USCIS may sometimes request more detailed clarification on certain issues in an application. In short, an RFE is a request for more documentation on certain issues.
What are Some Common Scenarios Where Requests for Evidence (RFEs) are Issued by the USCIS?
RFEs can typically be about the following topics:
- Whether the job position is a specialty occupation
- Whether the applicant employee has the necessary qualifications for the position
- Whether the employer-employee relationship has been established
- The company’s ability to pay the specified wage
- Whether the applicant employee is maintaining his/her status
- Missing documents have not been submitted in the application
How Should I Respond to a Request for Evidence (RFE)?
- Read the RFE carefully and make sure you understand each issue and document requested.
- Explain in detail the issues requested and, if necessary, describe the content of the documents you will submit and what they prove.
- Make sure you mail the RFE response to the correct address.
- Be sure to adhere to the deadline specified in the RFE.
How Long Does the H-1B Visa Transfer Process Take?
The processing time for an H-1B transfer is between 1 and 5 months on average. This can vary depending on your case details or the processing backlogs. If you file premium processing your application will be adjudicated in 15 calendar days.
What is the Premium Processing of H-1B Transfer?
Premium Processing guarantees that the application will be reviewed and adjudicated within 15 calendar days. To request Premium Processing the employer or the employee must complete and sign Form I-907.
What Happens to H-4 When H-1B Transfers to a New Employer?
If an H-4 visa holder maintains their status, they do not need to be included in the H-1B transfer. However, if the H-4 visa is close to expiring, it may be beneficial to include them in the application to save time. When an H-4 is filed with an H-1B, both applications are evaluated together and a decision is made simultaneously.
Does H-1B Visa Transfer Get Denied?
If there are some deficiencies in your file, your application may receive an RFE or it may be denied outright.
The employer’s lack of evidence that they meet the financial requirements, along with the insufficient explanation that the position is a specialty occupation, and the employee’s failure to meet the position requirements may be reasons for your application to be denied. Failure to provide adequate information regarding the employer-employee relationship may also be considered another reason for denial.
Inaccurate payment of application fees and the applicant employee violating his or her status may also result in denial.
What Should I Do If My H-1B Transfer Application Is Denied?
If your H-1B visa transfer is denied, you can remain in the country until the departure date on your I-94. However, if your previous employment agreement was terminated, you have a 60-day grace period to leave the country or find another way. During this period, you can resolve the reasons for the denial and apply for a new H-1B transfer, you can find a new employer, or file a motion for reconsideration.
Work with Oguz Law’s H-1B Visa Lawyers
The U.S. immigration law and the H-1B visa transfer process are subject to strict rules and procedures. Each application is evaluated and decided on its own merits and conditions. In this regard, we offer personalized legal support with our team that is well-versed in all regulations and follows current practices.
Frequently Asked Questions About the H-1B Visa Transfer Process
Can I Transfer My H-1B Visa Immediately After Approval?
Yes, it is possible to change employers right after your H-1B is approved.
Is It Difficult to Transfer H-1B Visa?
H-1B transfer is technically a new H-1B application. Therefore, it is recommended to get support from an immigration attorney.
Can H-1B Transfer Without Stamping?
Yes, stamping is not required whether you transfer or remain on your H-1B unless you want to travel outside of the U.S.
Can I Start Working Before the H-1B Visa Transfer?
No, you can start working for the new employer once the transfer petition has been filed – not before. Also, you do not need to wait for approval.
Can I Resign Before an H-1B Visa Transfer?
Yes, you can resign before the transfer petition is filed but make sure you do not violate your current status.
Can an H-1B Visa Transfer Be Filed Online?
Yes, USCIS is now accepting the H-1B petitions online, for more information you can visit the USCIS website.
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