The H1B visa, the professional work-sponsored visa, provides an opportunity for skilled professionals to work in the United States, but circumstances often arise where visa holders may need to change employers. H1B visa holders can change employers while residing in the United States through a process commonly referred to as an H1B transfer. Understanding its primary process, key materials required, and helpful tips can greatly simplify the transition to a new company while ensuring compliance with immigration regulations.
阅读中文版: H1B签证持有者怎么换工作：关键材料准备及注意事项
This guide will give you an overview of transferring your H1B visa. Documented interviewed two immigration lawyers, co-founding partner of Lepore Taylor Fox LLP Rosanna M. Fox and co-founding partner of Sun & Ren, PLLC Wenjie Sun, to provide valuable insights and practical advice to assist you in making a smooth transition.
What is the H1B visa transfer process, and how does it differ from the initial H1B visa application?
According to Sun and Fox, the H1B visa transfer process and the initial H1B visa application are quite similar. An H1B visa holder’s new employer must first submit a Labor Certification Application to the U.S. Department of Labor. Once the LCA is approved, the applicant can file a petition letter (Form I-129) with the USCIS and wait for USCIS to review the petition before making a decision.
Also Read: What Can H1B Visa Holders Do After Being Laid Off?
The main difference in the transfer process of an H1B visa is based on whether the individual has previously held an H1B visa. “If an individual was selected in the lottery and their initial H1B visa was activated, subsequent transfers would no longer be subject to the cap,” said Wenjie Sun, adding that this means that the person who submits a petition for H1B Visa Transfer would not have to go through the lottery again.
Due to the high demand for H1B visas, a lottery system is conducted to determine the recipients of H1B visas with an annual cap of 65,000 new visas, with an additional 20,000 reserved for graduates of U.S. Master’s degree programs.
However, there is a narrow exception to this rule. Fox pointed out that if the initial H1B visa was for a cap-exempt employer, such as a non-profit organization or an institution of higher education, then transferring to a cap-subject employer would still require going through the lottery process.
Additionally, Sun explained that if an individual’s initial H1B visa was obtained through a cap-exempt employer, they could work for a for-profit organization simultaneously by applying for a concurrent H1B. They do not need to go through the H1B lottery in this scenario. However, it is crucial to understand that maintaining the non-profit job is necessary to continue working for the for-profit organization. Sun recommended exploring options such as coordinating with both employers to adjust working hours.
Can you provide tips on how to ensure a smooth H1B visa transfer process, such as preparing supporting documents?
“I would recommend waiting until the H1B visa transfer petition has been approved before giving notice to your current employer,” said Fox. This ensures best practice and minimizes the risk of complications. If the candidate’s petition is denied or the new employer withdraws their offer, they may be left without a job as they have already left their previous employer. Having the approval in hand provides confidence and assurance before notifying the current employer.
Fox and Sun recommend that applicants prepare the necessary documents to demonstrate their eligibility and immigration status history, if applicable. The documents include but are not limited to:
- Basic identity documents: copy of the passport
- Copies of educational documents
- Copy of academic or technical degrees
- Copy of the transcripts
- Copies of prior and current immigration status documents, with updates as needed:
- Form I-94 (Arrival/Departure Record). It is available on the Customs and Border Protection website and determines the individual’s immigration status and the authorized period of stay.
- Form 1-797 (Notice of Action). It is issued to communicate receipt or approval of an application or petition.
- Form I-20. It proves that international students are legally enrolled in a program of study in the United States.
- DS-2019. It is the controlled document the Department of State uses to administer the Exchange Visitor (J-1) Program.
- Prior employment authorization documents
Also Read: How to Find Your Form I-94 Arrival/Departure Record for U.S. Visitors
Fox noted that it is important to keep copies of previous filings, such as copies of all previous approval notices or prior receipts. This allows the new employer to see the information recorded with the government and the arguments made regarding your qualifications for the position. Additionally, having a record of past representations helps address any potential issues or discrepancies that may arise.
How long does the H1B visa transfer process usually take? Are there any specific timelines or deadlines that applicants need to be aware of during the H1B visa transfer process?
Each employer has a different process and timeline for H1B visa petitions. The speed of the process depends on factors such as the attorney involved and whether premium processing is utilized for expedited application. Fox suggested that candidates inquire about the employer’s intention to use premium processing and may offer to cover the associated fee for faster decision-making within 15 days.
According to Fox, regular processing can take three weeks to six months or more. Premium processing can accelerate the process but it typically takes about four weeks. This is because H1B petitions require filing a labor condition application, which takes around five to eight business days to obtain. Considering giving two weeks’ notice to your current employer, the whole transfer process can take at least six weeks. However, the timeline may vary depending on the specific circumstances and employer processes.
Can you explain the potential risks or challenges of transferring an H1B visa from one employer to another? What factors should applicants consider when selecting a new employer for an H1B visa transfer?
According to Sun, when considering an H1B visa transfer, the candidate needs to assess the new company’s size, ability to pay the required salary, and alignment between the candidate’s major and the position they seek. These factors greatly influence the chances of a successful H1B application.
“There are special considerations to keep in mind,” said Sun, explaining that if an individual leaves their current company without a new job offer, they should apply for an H1B visa within the 60-day grace period after leaving their previous job. A special portability policy allows individuals already on an H1B visa to begin working with a new employer as soon as the transfer petition is filed. They can continue working until the petition is approved, and if it gets denied, they must stop working. Sun advised the candidates to wait until the H1B visa transfer is approved before leaving their current job.
Are there any common mistakes or pitfalls that applicants should avoid during the H1B visa transfer process?
To successfully navigate the H1B visa process, Fox advised the candidates to exercise caution and vigilance. It is crucial to ensure that the employer is legitimate and to work with experienced immigration attorneys well-versed in H1B processes. Fox mentioned that recent cases had highlighted the importance of verifying the authenticity of employers, as some fraudulent companies have misled applicants.
Instances have occurred where the initial H1B petition filed by an employer was deemed fraudulent, impacting subsequent transfers for the candidate. “It may work the first time around and may seem like a great idea, but years down the road, all of these companies may face legal consequences and be prosecuted for fraud,” said Fox, “which can directly impact the candidate.”
Fox also pointed out that individuals on an H1B visa for an extended period should be aware of any potential issues stemming from past petitions. It is essential to minimize risk and seek employment with reputable companies. Furthermore, H1B workers must adhere to the terms outlined in their petition, as any deviation may result in a violation of immigration regulations.
According to the regulations, it is not permissible for the individual, as a foreign national, to bear any expenses related to the H1B petition, except for the premium processing fee, which the employee can pay upon agreement. “If you have an employer that says, ‘Oh, sure, we’ll hire you, but we’ll be taking out money from your salary to cover the costs of this.’ That should be a red flag,” added Fox.
Are there any recent changes or updates to the H1B visa transfer process that applicants should be aware of?
Sun mentioned that she has observed a new change since last year. “Previously, when transferring H1B visas, individuals only needed to provide the pay stubs of the last two months,” said Sun. Now, USCIS has required some of her clients to provide all W-2 forms and pay stubs from the past three years.
“This situation happens more often now,” added Sun. She believes the change aims to prevent fraud, specifically related to the H1B visa’s minimum wage standard. Sun noted that some employers might adjust the last two pay stubs to meet the standard salary, leading to fraudulent practices. As a result, USCIS now reviews all wage records to address this issue. She suggested that applicants should be prepared to provide additional materials to ensure a smoother application process.
Sun also mentioned that since President Biden took office, the H1B visa approval rate has significantly increased, and the overall application difficulty has decreased compared to the previous Trump administration.
Both Sun and Fox advise applicants to seek guidance from legal professionals as each individual’s situation may vary. Consulting with an immigration attorney or expert can provide personalized advice and support throughout the application process, taking into account specific circumstances and recent policy changes.
