What is H1B Visa Transfer?
The H1B visa allows foreign workers in specialty occupations to temporarily work within the United States as nonimmigrants for a certain employer who typically helps a foreign worker obtain the H1B visa. However, like any employee, sometimes an H1B worker finds it in their interest to work for an employer other than the one who helped them receive the H1B visa. Fortunately, the H1B visa allows for foreign workers to transfer or change their employer without forfeiting their H1B visa, also referred to as portability.
H1B Transfer Requirements and Qualifications
In order to be eligible to transfer to a new employer, an H1B foreign worker must meet certain qualifications and adhere to certain requirements, including:
- A current and valid H1B visa;
- An employment offer from the new employer;
- A H1B visa transfer petition submitted by the new employer to the USCIS on behalf of the H1B foreign worker;
- Filing of the H1B transfer petition prior to the H1B foreign worker’s current employment ends;
- No violations of U.S. law or visa status by the H1B foreign worker;
- The H1B foreign worker can only begin working for the new employer according to the date listed on the transfer petition and once the new employer receives receipt from the USCIS that the transfer petition was received;
- The transfer petition must be accompanied by various documents that prove eligibility for the H1B transfer;
- Premium processing must be filed in the case the H1B foreign worker ends work with the old employer before beginning H1B transfer to the new employer.
What About the H1B Lottery?
Fortunately, there is no lottery for H1B visa holders who want to transfer to a new employer. This is because the USCIS considers employment with a new employer as a continuation of the H1B visa the foreign worker already holds. Thus, it is not necessary for an H1B visa holder to register for the lottery – the H1B visa they already have is sufficient to transfer employers.
Importantly, if a foreign worker enters the United States under a cap-exempt position that exempted them from the H1B lottery and then wants to transfer to a new employer and position that is not cap-exempt, the foreign worker may be subject to the H1B lottery for the transfer.
How to Transfer Employers Under the H1B Visa?
It is important to keep in mind that H1B visa holders must have their new employer initiate the transfer on their behalf with the United States Citizenship and Immigration Services (USCIS). Thus, the H1B visa holder cannot initiate an employer transfer on his or her own behalf. The process to transfer to a new employer under the H1B visa is very similar to the H1B application process, and is described in detail below.
Step One: Receive New Employment Offer
First and foremost, an H1B foreign worker must have an offer of new employment with an employer that is different from their current employer. It is important for H1B foreign workers to remember that they must fulfill any contractual and non-compete obligations with their current employer even though they will be transferring to a new employer.
Step Two: New Employer Files Labor Condition Application (LCA)
Similar to the regular H1B process, the new employer must first file a Labor Condition Application with the U.S. Department of Labor on the applicant’s behalf. This application requires the new employer to show that it will treat the H1B visa holder the same as other qualified workers in its same geographic area with regard to wage, and that other employees will be unaffected by the H1B visa holder’s working conditions.
Step Three: New Employer Files Form I-129, Petition for a Nonimmigrant Worker
After the Labor Condition Application is certified by the Department of Labor, the new employer must then complete a Form I-129, Petition for a Nonimmigrant Worker to the USCIS. While the Form I-129 petition is processing, the USCIS will send the foreign worker and the new employer a receipt, which allows the foreign worker to work for the new employer while the USCIS reviews the Form I-129 petition.
Once the Form I-129 is approved, the foreign worker and the employer will receive Form I-797, which proves the foreign worker is approved to legally work for the new employer. It is generally advised that the H1B foreign worker waits to receive Form I-797 to begin working with the new employer instead of beginning work based on the receipt of the Form I-129. This is because the Form I-129 may end up being denied, in which case the H1B foreign worker risks being out of status for not having a U.S. employer.
When submitting Form I-129, the foreign worker must provide the USCIS with certain documentation, including:
- Valid passport;
- Copy of the offer letter from the employer;
- Copy of current H1B visa stamp;
- A copy of recent pay stubs;
- A copy of tax returns, if applicable;
- A copy of Form I-94;
- A copy of social security card;
- A copy of your approved form I-129 and I-797 approval (issued to you previously when your form I-129 application was approved);
- Receipts proving you paid your application fees;
- A passport-sized photo of you that conforms with the U.S. Department of State guidelines;
- Degree, certification, and licensure documents;
- Updated Resume and curriculum vitae (CV).
What are the Fees for H1B Transfer?
Similar to the regular H1B application process, the new employer will have to pay fees as part of the H1B transfer. However, some fees and costs won’t apply when transferring employers.
Costs and Fees That Don’t Apply
As mentioned above, registration for the H1B lottery is not necessary when transferring to a new employer. Thus, the $10 lottery registration fee is not necessary. Similarly, costs associated with attending a U.S. Consulate or Embassy interview will not need to be paid because the foreign worker is already in the United States and already has the H1B visa.
Basic Filing Fee for Form I-129, Petition for Nonimmigrant Worker
Any time the Form I-129 is filed, it must be accompanied with a $460 filing fee. The new employer must complete a Form I-129, Petition for a Nonimmigrant Worker after the applicant is selected in the lottery. The $460 fee must also be paid for H1B transfer costs, refiling, amendments, and renewals. The new employer is responsible for paying the filing fee.
American Competitiveness and Workforce Improvement Act Training Fee
Employers with 1-25 full time employees must pay $750 under this act, while employers with 26 or more full time employees must pay $1,500. Nonprofits affiliated with educational institutions, government research organizations, and primary or secondary educational institutions are exempt from this fee.
Fraud Prevention and Detection Fee
New H1B applicants or those changing to a new employer are charged $500 so that the USCIS can better detect fraudulent use of the H1B visa. This fee is not charged if an employee is extending his or her work with the same sponsoring employer.
Public Law 114-113 Fee
This is a $4,000 fee charged to companies that employ more than 50 workers where over half of the employees are on H1B or L1 status. The USCIS may exempt this fee.
Optional Premium Processing Fee
Premium processing speeds up the time it takes the USCIS to come to its decision regarding an applicant’s petition. This is an optional $2,500 fee charged to those who wish to expedite the transfer process. It may be paid by either the employee or the employer. Payment of this fee and completion of form I-907 guarantees a 15-day processing time.