H-1B Visa Transfer - The Ultimate Guide

What is the H-1B Visa Transfer?

The H1-B program allows employers to hire nonimmigrant foreign workers in specialty occupations on a temporary basis. Typically, the employee is able to work for an employer on an H1-B visa for up to six years. If the employee later decides to find another employer, H1B visa holders can change their employer while in the US under a process which is known as the H1B transfer. In order to be eligible for an H1B transfer, the employee must have a valid H1B visa before initiating the transfer process.

Applying for an H1B transfer is similar to applying for an initial H1B visa. However, no visa cap applies to H1B transfers.This means that you will NOT go through the H-1B lottery again when you transfer to another employer. For the H1B visa holder, the first step is to receive a job offer from the prospective new employer. The process cannot begin without this offer. Next, the new employer must also get a Labor Condition Application (LCA) certification from the U.S Department of Labor. This document certifies the U.S employer will treat foreign workers fairly by paying a full wage and providing a good work environment.

Once the new employer has the LCA certification, they must also file form I-129. This form serves as permission to hire foreign workers. USCIS processes the form and send a receipt number to both the employer and employee. Once a receipt number is received, the employee can start working for the new employer. The USCIS has confirmed that a FedEx or UPS confirmation is sufficient to confirm “receipt,” so it is not necessary to wait for the official USCIS receipt notice to be issued, but some applicants prefer to wait the 1-2 weeks it takes to receive this receipt notice.

When the petition is approved, both the employer and the employee will receive the I-797 Notice of Action. This receipt proves that the employee is authorized to work in the U.S for a specific employer-sponsor.

Finally, the employer has to file Form I-9 or the Employment Eligibility Verification form to USCIS.

Documents to Prepare for Your H1B Transfer

In addition to the forms the employer is required to file, the employee must provide the following documents to USCIS:

• Copy of the offer letter from employer

• Copy of passport

• Copy of current H1B visa (visa stamp)

• Copy of Latest Form I-797

• Copy of Latest Form I-94

• Copy of social security card

• Copy of qualifications (degrees and certificates)

• Recent pay stubs (2 or 3 previous pay stubs)

• Copy of tax returns (if applicable)

• Updated resume

*Since the employee already has a valid H1B visa, he or she will not need to file a DS-160 Form. The employee only has to submit the above documents to USCIS.

Typically, an H1B transfer takes 1 to 4 months for regular processing and 15 days for premium processing. The fee for premium process is $2,500. You can check approximate current processing times on the USCIS website.

If your H1b petition was not adequately or professionally prepared, the USCIS may not approve the H1B visa transfer initially. Usually, the USCIS will send a Request for Evidence (RFE) if more documents are needed for a final determination.

Common Scenarios where RFEs are Issued:

·      Educational Qualifications – in this case, the employee needs to prove that they have the qualifications they claim to have. Documents include additional diplomas and certificates, for example.

·      Determination of a specialty occupation – the employee has to prove that they fit the definition of a specialty education.

·      Proof of employer/employee relationship – both parties need to prove to USCIS that they have a valid working relationship and that the job is legitimate.

·      Financial documents – the employer has to prove that they can afford to hire a new employee and that they can pay them.

After the additional RFE documents are submitted, USCIS will make a decision. If denied, USCIS will provide a reason as to why. Some of the most common reasons for denial are:

·      Not paying the correct fees – USCIS fees can change, so it’s possible to submit insufficient fees if the applicant does not check.

·      Employee lacks proof of specialty occupation – if the applicant cannot prove he or she has the qualifications for the position, the transfer will be denied.

·      Failing to prove the employer / employee relationship – USCIS wants proof that there is an valid employment relationship. It is important to submit all documents, especially the work contract. The contract should be specific enough, detailing job description and responsibilities, salary, as well as location of work.

·      The employer is unable to pay the employee - to avoid this, the employer should submit all financial and tax documents that are required and make sure that there is no reason for  USCIS to doubt their financial situation is insufficient to hire foreign workers.

·      The documents were not delivered to the right entity.

·      The documents were not filled out correctly.

·      The applicant committed a crime or violated immigration laws.

If the H1B transfer is denied, the applicant can reapply, but it is important to gather the correct supporting documents and fulfill the necessary requirements to get the transfer approved as expeditiously as possible.

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