contact@immigrationgroup.com

How the H1B Transfer Process Works

Glen D. Wasserstein, Managing Partner of ILG, specializes in immigration law, focusing on E-2 Investor Visas, L-1 visas, H-1B visas, and federal litigation. With a background in international relations, he founded ILG in 1996 and has addressed human trafficking at the United Nations Convention on Crime.

Table of Contents

The H1B visa is a crucial nonimmigrant visa that allows U.S. companies to hire foreign workers in specialty occupations, which require specialized knowledge and a minimum of a bachelor’s degree. This visa is vital for U.S. businesses seeking to attract and retain global talent in fields such as technology, engineering, and healthcare. For foreign workers, the H1B visa provides an opportunity to work in the U.S. and contribute their expertise to the American economy.

An H1B transfer allows a visa holder to change employers without having to go through the H1B lottery again. This process is essential for foreign workers who seek new employment opportunities or need to switch employers while maintaining their lawful status. Understanding the H1B transfer process is crucial for ensuring a smooth transition and continued legal employment in the U.S.

This blog will guide you through the entire H1B transfer process, from eligibility criteria to required documentation, and provide tips for a successful transition to your new employer.

What is an H1B Transfer?

An H1B transfer refers to the process by which an H1B visa holder changes employers while maintaining their current visa status. This process allows foreign workers to accept a new job offer without the need to go through the H1B lottery again. Instead, it involves a series of steps that ensure the continuity of their lawful status under the same H1B visa classification.

Definition and Key Points

  • H1B Transfer: It is essentially a change in the employer of the H1B visa holder without the need for a new H1B visa application. This means the foreign worker can transition from their current employer to a new employer while still under the same visa status.
  • Continuation Under a New Employer: The H1B transfer is not about obtaining a new H1B visa but rather about transferring the existing H1B status to a new employer. This ensures that the worker can begin working with the new employer as soon as the transfer petition is filed with the U.S. Citizenship and Immigration Services (USCIS).

Key Steps in the H1B Transfer Process

  1. Job Offer: The foreign worker must first secure a job offer from a new employer who is willing to sponsor their H1B transfer.
  2. Employer Filing: The new employer must file a Labor Condition Application(LCA) with the Department of Labor and then file Form I-129, Petition for a Nonimmigrant Worker, along with supporting documents to USCIS.
  3. Supporting Documents: This includes financial and tax documents, employment eligibility verification form (I-9), job description detailing the specialty occupation, and evidence of the prevailing wage for the position.
  4. Maintaining Lawful Status: The H1B visa holder must maintain their lawful status throughout the transfer process. This means not violating immigration laws or the terms of their H1B status while transitioning to the new employer.
  5. Begin Working: Once the transfer petition is filed, the worker can typically begin working for the new employer immediately, even before USCIS approves the transfer, thanks to the portability provision under immigration regulations.

Consulting an Immigration Attorney

  • Engaging an experienced immigration attorney is highly recommended to navigate the complexities of the H1B transfer process. They can ensure all documentation is properly prepared, prevent unnecessary delays, and increase the chances of a successful outcome.

By understanding the H1B transfer process and working closely with immigration services and legal counsel, foreign workers can successfully change employers and continue their employment in the U.S. under the same visa status.

Eligibility for H1B Transfer

To qualify for an H1B transfer, foreign workers must meet several eligibility criteria, ensuring their lawful status and capability to contribute to a specialty occupation under a new employer. Below are the key criteria:

  1. Current H1B Status:
    • The foreign worker must be in valid H1B visa status at the time of the transfer request. This means they must be currently employed by their existing H1B employer and not have violated any immigration laws.
  2. Job Offer from a New Employer:
    • The foreign worker must have a bona fide job offer from a new employer. The new employer must be willing to sponsor the H1B transfer and file the necessary documentation with the USCIS.
  3. Specialty Occupation:
    • The new position must qualify as a specialty occupation, requiring specialized knowledge and at least a bachelor’s degree or its equivalent in a specific field.
  4. Maintaining Lawful Status:
    • The applicant must maintain their lawful immigration status throughout the transfer process. This involves adhering to the terms of the H1B visa, including employment and residency requirements.
  5. Proper Documentation:
    • The applicant and the new employer must provide comprehensive documentation to USCIS. This includes a detailed job description, proof of the prevailing wage, and financial and tax documents.

Discussion on Requirements for Eligibility

  • Financial and Tax Documents: To demonstrate the stability and legitimacy of the employment, the new employer must submit financial and tax documents. These documents help verify that the employer can pay the prevailing wage for the specialty occupation.
  • Employment Eligibility Verification Form (I-9): The new employer must complete an Employment Eligibility Verification Form (I-9) to confirm the foreign worker’s eligibility to work in the U.S.
  • Visa Stamp and Status: The applicant’s current visa stamp and status must be valid. If the visa is close to its expiration date, it’s crucial to address this in the transfer petition.
  • Supporting Documents: The foreign worker needs to provide recent pay stubs, W-2 forms, tax returns, and proof of employment with the current employer to demonstrate continuous lawful status.
  • Filing Fees and Attorney Fees: Both the employer and the foreign worker should be prepared to cover various filing fees and potentially attorney fees for an experienced immigration attorney to handle the transfer process.
  • Prevailing Wage Requirements: The new job must meet the prevailing wage requirements set by the Department of Labor to ensure fair compensation for the specialty occupation.

No Need for H1B Lottery Again

One of the significant advantages of an H1B transfer is that it does not require the applicant to go through the H1B lottery process again. The H1B visa lottery is a highly competitive process that many foreign workers must navigate to secure their initial H1B visa. However, once you hold an H1B visa, transferring to a new employer does not involve re-entering this lottery.

Cap-Exempt Nature of the H1B Transfer

The H1B transfer is cap-exempt, meaning that the application is not subject to the annual numerical limit set by USCIS. This exemption allows for a smoother and often faster process for both the employer and the employee. Since the transfer process does not contribute to the visa cap, it eliminates the uncertainty and delays associated with the lottery system.

Key Points for H1B Transfer

  • Continued Lawful Status: The H1B transfer ensures that the foreign worker maintains their lawful status in the U.S. while changing employers. This is crucial for avoiding any gaps in employment that might violate immigration laws.
  • Required Documentation: The new employer must file the necessary paperwork, including the LCA and Form I-129, Petition for a Nonimmigrant Worker, along with supporting documents such as financial and tax documents, to demonstrate compliance with immigration regulations.
  • Premium Processing: Employers can opt for premium processing to expedite the H1B transfer process. This service ensures that USCIS processes the transfer request within 15 calendar days, reducing the waiting period significantly.
  • Employment Eligibility Verification Form: As part of the transfer process, the new employer must complete an Employment Eligibility Verification Form (I-9) to confirm the foreign worker’s eligibility to work in the U.S.
  • No Interruption in Employment: The H1B transfer allows the worker to begin working for the new employer as soon as USCIS receives the transfer petition, even before it is formally approved. This provision helps maintain a valid working relationship and prevents any disruption in employment status.

The H1B Transfer Process

The H1B transfer process involves several critical steps that both the foreign worker and the new employer must follow to ensure a smooth transition and compliance with U.S. immigration laws.

  1. Securing a Job Offer
    • The first step in the H1B transfer process is for the foreign worker to secure a job offer from a new employer willing to sponsor their H1B visa transfer.
  2. Employer Filing
    • The new employer initiates the transfer process by filing a Labor Condition Application (LCA) with the Department of Labor. This document outlines the job details and confirms that the prevailing wage for the specialty occupation will be paid.
  3. Preparation of Documentation
    • Both the employer and the employee must prepare a comprehensive set of documents. The employer must gather financial and tax documents, a detailed job description, and proof of the prevailing wage. The employee needs to provide recent pay stubs, W-2 forms, a valid passport, and an employment eligibility verification form (I-9).
  4. Filing Form I-129
    • The new employer files Form I-129, Petition for a Nonimmigrant Worker, with USCIS. This petition includes the LCA, supporting documents, and the filing fees.
  5. Premium Processing Option
    • Employers can opt for premium processing by paying an additional fee, which ensures that USCIS processes the H1B transfer petition within 15 calendar days. This can significantly reduce the waiting period and expedite the start of new employment.
  6. USCIS Receipt Notice
    • Once USCIS receives the H1B transfer petition, they will issue a receipt notice. The foreign worker can begin working for the new employer upon receiving this notice, even before the petition is formally approved.
  7. Maintaining Lawful Status
    • Throughout the transfer process, it is essential for the foreign worker to maintain their lawful H1B status. This includes adhering to the terms of their current employment until the transfer is initiated and avoiding any violations of immigration laws.
  8. Approval and Commencement
    • If USCIS approves the H1B transfer petition, the foreign worker receives an approval notice. If they are changing jobs within the U.S., they do not need a new visa stamp unless they travel abroad. In such cases, they will need to obtain a new visa stamp from a U.S. consulate before re-entering the country.

Role of the New Employer

  • Employer Sponsorship: The new employer must sponsor the H1B transfer by providing a valid job offer and filing the necessary documentation with USCIS.
  • Compliance with Immigration Regulations: The employer must ensure that all filings comply with immigration regulations, including submitting proper documentation and paying the required filing fees.
  • Supporting Documents: The employer must provide detailed job descriptions, financial statements, and tax documents to demonstrate the legitimacy and financial stability of the business.
  • Legal Assistance: Engaging experienced immigration attorneys can help navigate the complexities of the transfer process, ensuring all documentation is accurate and complete.

Starting Work with a New Employer

An H1B visa holder can legally start working for their new employer as soon as the new employer files the H1B transfer petition with U.S. Citizenship and Immigration Services (USCIS). This provision allows the foreign worker to begin working without waiting for the final approval of the transfer petition, ensuring continuity in employment and compliance with immigration laws.

Immediate Work Start Post-Filing

  1. USCIS Receipt Notice:
    • Once the new employer submits the H1B transfer petition, USCIS will issue a receipt notice. This notice includes the receipt number, confirming that USCIS has received the petition. The foreign worker can begin working for the new employer upon receiving this receipt notice.
  2. Premium Processing Option:
    • For faster processing, employers can opt for premium processing, which guarantees that USCIS will process the petition within 15 calendar days. This option can reduce any waiting period and expedite the start of employment with the new employer.

Waiting Periods and Valid Working Relationship

  • No Waiting Period Post-Filing:
    • There is typically no waiting period once the petition is filed. The ability to begin working immediately upon the filing of the transfer petition helps maintain a valid working relationship and lawful status in the U.S.
  • Maintaining Lawful Status:
    • The H1B visa holder must maintain their lawful status throughout the transfer process. This includes continuing to work for the current employer until the new employer files the transfer petition. Any violation of immigration laws during this period can jeopardize the transfer and future employment.

Ensuring Proper Documentation

  • Supporting Documents:
    • Both the employer and the employee must ensure all supporting documents are properly prepared and submitted. This includes financial and tax documents, employment eligibility verification form (I-9), job description, and recent pay stubs from the current employer.
    By understanding these guidelines and ensuring that all steps are properly followed, H1B visa holders can smoothly transition to their new employment, maintaining their lawful status and ensuring a valid working relationship with their new employer. This streamlined process helps both employers and foreign workers manage the complexities of the H1B visa transfer efficiently.

Documents to Prepare for Your H1B Transfer

Forms Required by the New Employer

  1. Labor Condition Application (LCA)
    • Filed with the Department of Labor to attest that the new employer will pay the prevailing wage for the specialty occupation.
  2. Form I-129, Petition for a Nonimmigrant Worker
    • Filed with USCIS, including the LCA and supporting documents.
  3. Supporting Documents
    • Job Offer Letter: Detailed job description, employment terms, and conditions.
    • Company’s Financial and Tax Documents: To prove the company’s ability to hire foreign workers.
    • Employment Eligibility Verification Form (I-9): To verify the employee’s authorization to work in the U.S.
    • Filing Fees: Including the detection fee and any premium processing fees if applicable.

Forms You Need to Provide to USCIS

  1. Current Passport
    • A valid passport with your current H1B visa stamp.
  2. Proof of Current H1B Status
    • Recent pay stubs, W-2 forms, and employment verification letters from the current employer.
  3. Educational Qualifications
    • Copies of degrees and transcripts demonstrating your qualifications for the specialty occupation.
  4. Detailed Job Description
    • Specific duties and responsibilities of the new job to ensure it qualifies as a specialty occupation.
  5. Supporting Documents
    • Financial and Tax Documents: Personal financial documents to support your lawful status.
    • Prevailing Wage Documentation: Proof that the new job meets the prevailing wage requirements.
    • FedEx or UPS Confirmation: Proof of submission of the transfer petition to USCIS.

Timeline for the H1B Transfer

The timeline for an H1B transfer can vary depending on several factors, including the processing method chosen and the specific circumstances of the case. Generally, the transfer process can take anywhere from 1 to 4 months for regular processing. Here’s a more detailed breakdown:

  • Regular Processing: Typically takes between 1 and 4 months. The exact time frame can depend on the caseload of the USCIS service center handling the petition.
  • Premium Processing: Offers a faster alternative, with USCIS guaranteeing a response within 15 to 30 days for an additional fee.

Factors Affecting Processing Time

  1. Service Center Workload:
    • Different USCIS service centers (e.g., California, Texas, Vermont) have varying processing times based on their current workload.
  2. Completeness and Accuracy of Documentation:
    • Ensuring all required forms and supporting documents, such as financial and tax documents, employment eligibility verification form (I-9), and detailed job descriptions, are accurately prepared can prevent delays. Engaging experienced immigration attorneys can help ensure proper documentation.
  3. Premium Processing:
    • Opting for premium processing can significantly expedite the H1B transfer. This service, while more costly, ensures a quicker response from USCIS, usually within 15 to 30 days.
  4. Requests for Evidence (RFE):
    • If USCIS requires additional information or documentation, they will issue an RFE. Responding promptly and thoroughly to an RFE is crucial to avoid further delays.
  5. Employer’s Preparedness:
    • The new employer’s readiness to file the necessary forms, including the Labor Condition Application (LCA) and Form I-129, along with the supporting documentation, can impact the overall processing time. Proper preparation by the employer, including gathering financial and tax documents, is essential.

Cost Involved in the H1B Transfer

When filing for an H1B transfer, both the employer and the foreign worker should be aware of the various costs involved. These costs can vary but generally include the following:

Overview of Fees Associated with Filing for an H1B Transfer

Overview of Fees Associated with Filing for an H1B Transfer

Possible Additional Costs

Possible Additional Costs

Understanding these costs helps both employers and foreign workers to budget appropriately for the H1B transfer process and avoid unexpected expenses. Consulting with an experienced H1B visa attorney can also help in managing these costs effectively while ensuring compliance with all immigration regulations.

Challenges in the H1B Transfer Process

Potential for USCIS Denials

H1B transfer petitions can be denied for several reasons, including:

  • Insufficient Documentation: Failure to provide necessary financial and tax documents, detailed job description, or proof of the specialty occupation.
  • Non-Compliance with Prevailing Wage: The offered salary does not meet the prevailing wage requirements.
  • Immigration Status Issues: The applicant has violated immigration laws or does not maintain lawful status.
  • Employer’s Ineligibility: The new employer does not meet the criteria set by USCIS, such as financial instability or failure to comply with previous immigration regulations.

Request for Evidence (RFE)

An RFE may be issued by USCIS if additional information is required to make a decision on the H1B transfer petition. Common scenarios include:

  • Clarification on Job Description: USCIS may need more details on how the position qualifies as a specialty occupation.
  • Proof of Employment Relationship: Additional evidence may be required to demonstrate a valid working relationship between the employer and the foreign worker.
  • Verification of Educational Qualifications: Further evidence might be needed to confirm the worker’s educational background and its relevance to the job.

How to Address an RFE

  • Timely Response: Respond promptly within the specified timeframe provided by USCIS.
  • Detailed and Comprehensive Documentation: Provide clear and thorough documentation addressing each point raised in the RFE.
  • Consult an Immigration Attorney: An experienced immigration attorney can help prepare a strong response to increase the chances of approval.

Understanding these challenges and preparing adequately can help mitigate the risks and ensure a smoother H1B transfer process.

Conclusion

The H1B transfer process allows foreign workers to change employers while maintaining their H1B visa status, providing flexibility and new opportunities. The process does not require re-entering the H1B lottery, making it a straightforward continuation under a new employer. Ensuring eligibility, preparing necessary documentation, and understanding the costs and timeline are crucial for a smooth transfer. Potential challenges, such as USCIS denials and requests for evidence, must be addressed promptly and thoroughly. Proper preparation and thorough documentation are vital for success.

Engaging with an experienced immigration attorney in DC can provide valuable guidance, ensuring all criteria are met and the process is handled efficiently. This professional assistance can help navigate the complexities of the H1B transfer, avoiding unnecessary delays and increasing the likelihood of a successful outcome.

For informed, tailored legal assistance on immigration that is unique to your situation, you can also consult with our immigration attorney in New Orleans.