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Last Updated On: September 29, 2023 | Published On: March 6, 2020
An H-1B transfer is intended for individuals who want to change from one employer to another. However, you must have active H-1B status first in order to make the switch. If you’ve selected for an H-1B transfer after October 1st, the good news is that your petition with Company A will either have already been approved or denied. The best-case scenario is still an approval since that will permit you to transfer to Company B shortly thereafter.
In order to file an H-1B transfer, you must be able to provide proof (verifiable) that you were working for your original H-1B employer when the transfer was filed (on October 1st or after). Such verifiable proof may include a letter from Company A indicating that you did start employment on October 1st.
You always run that risk of the USCIS issuing a Request for Evidence (RFE) for additional documentation like pay stubs, etc. On average, the past two to three pay stubs from Employer A usually are sufficient. Here is a simple guide on steps to processing an H-1B transfer:
While you are still working with employer A, you will need to get a job offer from employer B, who will initiate the transfer process. The job offer is crucial, as no transfer can take place without first having a qualifying employment offer that meets H-1B requirements.
Employer B will commence the transfer process by filing an LCA with the Department of Labor (DOL). Then, employer B will need to submit Form ETA9035E to request this certification. This form must be submitted along with relevant supporting evidence showing the employer’s eligibility to hire an H-1B foreign worker and the ability to pay wages.
The new employer will also need to file Form I-129 with USCIS. After receiving the petition, USCIS will send a receipt number to both the petitioner (employer B) and you (the beneficiary). With this receipt, you can transfer to the new employer (employer B) and start working with them.
Warning: While the receipt number gives you legal backing to start working with the new employer, it might be in your best interest to exercise patience and wait until the petition is approved before leaving employer A. This is because if the petition is eventually denied by the USCIS, you will be at the risk of being out of status and will have to leave the United States. Keep in mind that the fact that you have your LCA approved doesn’t mean the I-129 will be approved as well. These two applications are processed by two different independent agencies.
Another excellent option is to use premium processing for the I-129 petition. With that, you will receive a decision (either approval or denial) within 15 calendar days. That will help you make an informed decision on whether to stay with employer A or to move on to employer B. Though the premium processing will cost you an additional fee, it might save you the risk of job loss and being considered out of status.
To avert additional challenges, it’s always advised to work with a qualified H-1B transfer lawyer who knows the process and best ways to secure an H-1B transfer after October 1st approval!
Was your H-1B status revoked before October 1st or are you under consular process before using the petition to apply for admission into the U.S.? If so, then you would not be considered under the H-1B cap. Let’s use an example to further illustrate this point.
Say, for instance, Company X has an approved petition which is withdrawn (for whatever reason) prior to your new petition with Company Y is approved, then you would not be technically counted under the cap.
Subsequently, the new petition would likely receive a denial because it was filed outside the cap window. This example is out of the ordinary, which is why you should consult legal counsel if you find yourself facing these circumstances.
You cannot technically ‘transfer’ if you haven’t started working for Employer A yet (which happens on October 1st) since you won’t be under H-1B status. Should Employer A not be cap-exempt, then Employer B can apply for an H-1B for you, and you won’t have to be concerned with the cap since you would have already been counted against it.
What If I Decide Not to Transfer Employers After An Approval?
If you apply for a transfer with a different employer and it is approved, but you later decide you do not want to work there, you can stay with your current employer, despite the transfer approval.
The employer filing the H-1B transfer will have to pay the following fees:
Immigration Attorney Fee: The right immigration attorney on your side makes all the difference when it comes to an H-1B transfer after October 1st or at any point during your stay in the United States. The H-1B transfer fees and costs required by attorneys can vary. We recommend scheduling your initial consultation to get a general cost estimate.
The processing time for an H-1B transfer will depend on whether you use regular or premium processing. On average, you may spend up to four months if you go through the regular process. However, for premium processing, you could have your petition processed in 15 days.
The processing time also depends on how well the petition is filed from the initial stage. A well-filed LCA, for instance, should take approximately seven business days to process, after which you can go through either regular or premium processing.
It is possible to move from Company A to Company C even if you have a pending H-1B transfer petition Company B. In this scenario, you don’t have to wait for the approval of your pending transfer to Company B before Company C can submit a transfer petition on your behalf. What you need is to file for a transfer using the I-797 approval for Company A, and a few of your last pay stubs.
This type of filing can also work for an “H-1B bridge petition,” which refers to filing successive H-1B transfers when previous H-1B petitions are still pending while the period of stay on the initial Form I-94 has expired. However, for a bridge petition to receive approval, it must qualify as an extension of stay. This requires that each link must be approved for the H-1B transfer submitted later to be approved. If your H-1B status expires while the multiple petitions are still pending, a denial of any one of the multiple petitions will break the bridge between the petitions, leading to the denial of the other(s). If this happens, you will be considered out of status.
There is no limit to how many times you can request for H-1B transfer as long you have a valid status. The only limit is the expiration of your H-1B visa, which you can always renew.
You are not required to inform your current employer before starting your H-1B transfer process with a new employer.
There is no time limit for when you must join the new employer. You can choose to start working with the new employer before the approval, immediately after the approval, or even allow some time to pass before starting. However, you should keep your visa expiration date in mind and request an extension when necessary.
No, the H-1B transfer is a different process – it is not affected by the quota regulations. Only new or first-time H-1B applications get counted towards the quota. Since your case is for an existing H-1B visa, it has nothing to do with the usual cap system.
There is no formal limit concerning the number of times you can apply for an H-1B visa transfer. What’s more, there is nothing that’s preventing you from applying for a transfer with multiple employers should you have that desire.
Be aware that there is no “shortcut” or loophole for an abbreviated transfer process. You need to fully complete the documents and establish that you are eligible in the transfer category. Should you fail to do so, you may be denied and face further delays.
Changing employers while on H-1B requires diligence, as any error in the process could undermine your job authorization and put you at the risk of losing your status. However, with the help of an expert immigration lawyer, you can conveniently scale the hurdles and significantly improve your chances of receiving approval. This is where we can help.
VisaNation Law Group’s highly experienced immigration lawyers have extensive knowledge of H-1B extensions, transfers, and all other issues relating to the visa classification. They can help you prepare your petition and guide you through the process from the beginning to the end. To get in touch and book an appointment with a VisaNation Law Group H-1B lawyer today, simply fill out this consultation form.
Have additional questions related to an H-1B transfer after October 1st or prior? Contact our office to learn more.
Tags: H-1B Transfer
