H-1B transfer: What You Need to Know - Silmi Law Firm


November 6, 2020

H-1B transfer: What You Need to Know

The H-1B is a petition-based nonimmigrant visa that must be sponsored by a US-based employer. However, after getting the visa, the beneficiary (foreign worker) may choose to work for another employer other than the one who sponsored the visa. This can happen either after working for the employer for some time or even before working for the employer at all. So, in essence, H-1B transfer is the process that allows H-1B holders to change employers.

H-1B Transfer Process

Although the process is generally referred to as H-1B transfer, that doesn’t mean you can transfer the H-1B visa sponsored by employer A to employer B. The new employer will have to file a new H-1B petition on your behalf including Labor Condition Application (LCA), following the guidelines below:

  • The employer submits the employment letter containing details of the job offer, including start date, duties, position, and every other necessary information.
  • The employer files an LCA with the Department of Labor (DOL) and waits for approval.
  • The employer submits Form I-129 petition with relevant supporting documents and filing fees.

Required Documents for H-1B Transfer

You, the employee, will also need to provide the following documents for the transfer process:

  • Form I-979, Notice of Action for H-1B visa approval
  • Paystubs (if applicable)
  • Academic records
  • Letter of recommendation
  • Resume
  • Copies of most recent passport, social security number, and I-94 records

What Happens After Filing H-1B Transfer?

Once the employer submits the petition to USCIS, you can start working on the new job without having to wait until the transfer is approved. This is one of the major advantages of H-1b transfer compared to a fresh application.

Differences Between H-1B Transfer and a New H-1B Application

The major differences and advantages lie in the fact that the H-1B transfer is a quicker process and also allows certain flexibilities compared to a fresh application. These include:

Not Subject to H-1B Visa Caps

H-1B is a quota-based visa that has a statutory annual cap of 65,000 visas, with an additional 20,000 for those with higher degrees – making a total of 85,000 visas. Applicants who are not selected will have to reapply another year. The good news is that as an H-1B transfer applicant, the cap does not apply to you. There are unlimited visas for eligible H-1B transfer applicants.

Can Be Processed Anytime

To get a new H-1B, employers will have to register their prospective employees between March 1 and March 20. But in the case of H-1B transfer, applicants aren’t constrained to a timeframe. You can submit your petition at any time of the year.

You Don’t Have to Wait for Approval

You can start working with the new employer immediately upon USCIS receiving the transfer petition. This is also advantageous to the employer, in that they get to fill their vacant position quickly.

H-1B Transfer without Paystubs

Since paystub is one of the common H-1B transfer requirements, some people wonder if they can be eligible if they don’t have it. Some of the common scenarios for these include those considering transfer after just entering the US.

For example, you just received a better offer from someone else or discovered that the employer who sponsored your visa isn’t the right fit for you. In this case, it is possible you haven’t worked for the employer at all or haven’t worked up to a month. This may mean not having paystubs to tender. But it doesn’t make you ineligible to apply for an H-1B transfer.

Paystub is just one of the requirements. The most important thing is whether you have qualifying status and are considered to be cap-exempt. Having your I-94 reflect valid H-1B means you have a valid status and being in the US on an H-1B visa also means you are cap-exempt. Keep in mind, however, that USCIS still has the prerogative to approve or deny any application.

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