H1B Transfer: How To Change Jobs on an H1B Visa

Posted by in Immigrants | Updated on November 23, 2022
At a Glance: H1B visa holders have the right to transfer to another employer. An H1B visa status employee isn’t required to seek permission from their employer. However, the employee does need to fulfill their contractual and non-compete obligations.

H1B visa status is provided to immigrants in the U.S. seeking professional work. It enables employers to hire foreign professionals in the U.S. temporarily.

Both of the parties, i.e., the U.S. employer and the potential employee, should comply with the Department of Labor Standards’ regulations to obtain it. But what happens if an H1B visa holder wants to transfer or change employers?

Can an H1B Be Transferred To Another Employer?

Yes, H1B visa holders have the right to transfer to another employer. Furthermore, the HIB visa status employee isn’t required to seek permission from their employer.

However, the employee does need to fulfill their contractual and non-compete obligations before transferring to another employer.

To transfer an H1B visa to another employer, the employee must first file an LCA, i.e., a Labor Condition Application. Secondly, they should gather all necessary documents (mentioned below), complete Form I-129, the USCIS petition letter. Finally, the petition letter is to be filed with the USCIS.

After that, the USCIS, after due consideration, will either approve or reject the petition.

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H1B Transfer Requirements

For an H1B visa transfer, the H1B status holder must comply with certain transfer requirements. These are:

  • The H1B visa holder’s new employer will have to submit an H1B visa transfer petition to the USCIS. The employee cannot do so on his/her behalf.
  • The employee must not have violated any of his visa statuses or conducted any unlawful act in the U.S.
  • The petition with the USCIS should be filed before the current employment period expires.
  • The employee can start working at their new workplace from the date mentioned in the H1B transfer petition submitted to the USCIS. The employee can begin working as soon as the new employer receives the USCIS receipt.
  • However, it is in the employee’s best interest to begin working at their new company only after approval of transfer is received in writing.
  • Premium processing must be filed if the employee ceased working with the old employer before the H1B visa transfer.
  • Various supporting documents have to be submitted by the employee seeking an H1B visa transfer.

H1B Transfer Documents

All immigration actions require the concerned parties to submit certain supporting documents for the bureaucratic process to start. Transferring the H1B visa status is no exception. Both the new employer and the employee seeking an H1B visa transfer have to submit certain transfer documents specified below:

Documents To Be Submitted by H1B Visa Holder

  • U.S. visa, and, in certain cases, Forms I-797 and I-94
  • Employee resume
  • Pay stubs to prove employment status (or a letter from the employer)
  • University degree and transcript
  • Letter of recommendation
  • Academic evaluation

Documents To Be Submitted by New Employer

  • A letter detailing the new position, job title, and salary, signed by both the employer and the H1B visa transfer holder
  • Marketing documents of the company
  • Financial statements, annual reports, and business plans of the company
  • Documents supporting an in-depth description of the responsibilities and duties of the employer

Cap-Exempt to Cap-Subject Employer

Employees who previously had an H1B visa and are currently outside of the U.S. can ask their employer to file a cap-exempt H1B petition. They must prove they held H1B status in the U.S. within the past six years to qualify.

So, if they transfer from a cap-exempt to a cap-subject employer, they must enter the H1B cap lottery that the USCIS carries out if it receives more than 65,000 petitions for an H1B cap visa within the first five days.

Most people believe they can avoid going through the lottery process if they enter the U.S. first through a cap-exempt employer and then later transfer to a cap-subject employer. However, this is not the case as the new employer is required to file Form I-129. The petition to transfer the H1B visa will be submitted as cap-subject if your new employer is not cap-exempt.

Documents for H4 Visa Spouse or Minor

If they have a spouse and/or minor children under the age of 21, they would have to get an H4 visa to be admitted to the United States. With an H4 visa, the holders are granted admission into the U.S. for the same period as the principal visa holder (i.e., the employee or worker in this case).

H4 visa holders are given various benefits like the ability to study in the U.S., not necessarily being required to have a foreign residence, no restrictions on leaving and returning to the U.S., and the advantage of an EAD, i.e., Employment Authorization Document.

To qualify for the EAD card, the principal H1B holder must file Form I-140 and get it approved by the USCIS. If the H1B holder transfers employers in this period, the H4 EAD visa will not be renewed until I-140 is approved.

H1B Visa Transfer Cost

Apart from any attorney fees, there are other mandatory transfer costs imposed by the USCIS on employers, once per beneficiary. These include:

  • A basic filing fee for Form I-129 of $460
  • Fraud detection and prevention fee of $500
  • ACWIA training fee from $750 to $1,500 depending on the number of employees
  • Public law fee of $4,000 if the number of employees is more than 50
  • Premium processing fee of $1,225 (subject to suspension)

H-1B Visa Transfer Premium Processing

The H1B visa transfer process can be sped up through premium processing; an extra fee of $1,225 for premium processing will expedite the USCIS decision to within 15 days of filing.

However, premium processing doesn’t guarantee the H1B visa transfer will be authorized. It can still be rejected if discrepancies are found. If the worker transfers from a cap-exempt employer to a cap-subject employer, they will have to undergo the H1B lottery process.

Premium processing can’t help subvert the H1B lottery process, nor does it guarantee a petition will be chosen in the lottery selection process.

It should also be noted that premium processing won’t allow the employee to change their employment date.

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Final Thoughts

In short, H1B visa transfers allow an employee to transfer from one employer to another if the proper procedures are followed, and the transfer petition is filed with the USCIS.

You should not resign from your current position until the petition for transfer is approved. You will have to wait at least four to eight weeks after submitting your application for the USCIS to process your petition. The H1B transfer process is also affected by the location of your employment and the USCIS processing center closest to it.

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