An H1B transfer allows holders of H1B visas to change employers without losing their H1B status. As with most immigration-related procedures, the H1B transfer does require very specific actions. Here’s how the process works.
H1B Holders Must Still Work for Current Employer or Are Within Grace Period
For an H1B employee to switch employers, the process must start while the employee still works for their current employer. The employee does not need permission from their current employer to seek a transfer to a new employer. However, the employee must still honor any contractual obligations they have to their current employer.
It’s also possible to initiate the process within the grace period that occurs after the cessation of employment. H1B holders have 60 days after the end of employment to find new employment, change their visa status, or leave the country.
H1B holders will need the following documents:
1. Your originally issued H1B visa.
2. A valid passport.
3. Most Recent I-94 Arrival/Departure form.
4. An I-797 Notice of Action document issued and certified by the USCIS.
5. Copies of all issued University diplomas.
6. Complete transcripts of your university diploma(s) from the attended academic institutions.
7. A copy of your Academic Evaluation concerning any foreign degrees, if applicable.
8. A current curriculum vitae (CV) or resume.
9. Proof of employment which can be proved via a letter from your employer, a leave of absence letter, or copies of your previous three pay stubs or checks.
10. Your employer will also have to provide a support letter and detailed copy of your job offer (including title and salary), a description of said job, financial statements or business plans, associated marketing materials, and if applicable articles of incorporation.
If the employee has family or other immigration statuses, such as F1, J1, H4, etc., the employee should gather the pertaining documentation for those things as well.
New Employers Will Submit the H1B Visa Transfer Petition
A “transfer petition” is really just an H1B petition. The new employer will effectively go through the H1B process. They must make complete filings, and establish their eligibility to hire the H1B worker. They must also show the employee still has all the requirements for maintaining their H1B status.
The new employer will have to complete and submit the following:
- Form I-129 (Petition for a Nonimmigrant Worker)
- Form I-9 (Employment Eligibility Verification)
- Labor Condition Application
The employer should also have a letter of position, which lists the job title and salary. A description of the job and the duties associated is also necessary. The employer may also need to submit information related to the business, such as annual reports.
H1B Employee Can Start Working for New Employer Immediately
Once the USCIS sends notice they received the application, the employee may start working. It’s not necessary to wait for approval of the filings before starting the new position.
It’s sometimes advisable to wait until the approval comes in from the USCIS. If the USCIS denies the application, the H1B worker must cease their employment immediately. This can also cause them to fall “out of status.” If there’s any doubt about the employee’s status, it’s advisable to wait for the decision from the USCIS and to consult with an experienced H1B attorney.
Additional Information About H1B Transfers
As stated, the transfer process is very much a rehash of the H1B application process. One of the major differences is the H1B cap does not affect the transfer.
H1B visas have portability, so a foreign national can repeat this process each time her or she changes employer. Each new employer can seek to extend the H1B status when submitting the application.
Many things can hinder the H1B transfer process. Very complex issues can arise that make the process very difficult. That’s why it’s important for those seeking an H1B transfer to speak to an immigration attorney who knows the process.
Immigration policies change all the time. It’s important to speak with someone who can guide H1B employees and their families through the process. H1B holders making a job change, and employers seeking to hire them, should start with a free consultation from a qualified immigration attorney.