What is the H1-B Visa Transfer?

H-1B visa holders can change their employer while in USA with a H1-B visa transfer

H-1B Transfer 2019-08-16T16:33:03+00:00

The H1B visa is a US non-immigrant visa in the work visa USA category. Within the work visa category, the H-1 visa is for people who have specialty occupations. This means that they have completed advanced education degrees or have extensive training. The most popular type of the H-1 visa is the H1B or sponsorship visa.

The H1B visa allows people to work in the U.S temporarily, so within a specified period of time. The process of getting an H1B visa is initiated by the employer. This means that you have to find a job and the employer will agree to sponsor you for the U.S government.

When you get to the U.S on an H1B visa you have already found a job, and you will work for a certain employer. However, for different reasons, people sometimes want to change their employer. This is where the H1B visa transfer process begins, which is detailed below.

What is the H1B Transfer?

H1B visa holders can change their employer while in the US under a process which is known as the H1B transfer. To be able to apply for an H1B transfer, they must first accept the new job offer is that you still have a valid H1B visa. They can then initiate the H1B transfer status, which could take several months.

H1B Transfer Process

The H1B transfer process is similar to applying for the H1B visa initially. One difference between the initial H1B visa and the H1B visa transfer is the lack of a visa cap. The H1B visa has a cap of 65,000 people annually that can get this visa. But the H1B transfer has no visa cap. So if you already have an H1B visa, you do not go through the H1B lottery.  This means that you do not count towards the visa cap to get the transfer.

The process of applying for an H1B transfer visa is as follows:

Get a new employment offer

If you are currently working for employer A, you will need a job offer from employer B in the U.S to initiate the H1B transfer visa process. You cannot transfer to another employer if you have not yet been offered the job.

The employer needs to get a Labor Condition Application (LCA) from the Department of Labor (DOL)

U.S employers are not allowed to hire foreign workers without an LCA certification. Employers can get this document from the U.S Department of Labor. Employers apply for this certification by filing Form ETA9035E. This certification guarantees foreign workers that the U.S employer will treat them fairly by paying a full wage. It also states that they will get a good work environment. In addition, it tells the U.S government that the employer hires legally admitted foreign workers.

After the employer gets this certification, they can continue with the other steps.

The employer has to file the I-129 form with USCIS

The I-129 form of the H1B petition is used for permission to the employer to hire foreign workers. This form is handed to the United States Citizenship and Immigration Service. USCIS processes the form and either approves or denies the petition.

While it is processing, USCIS sends a receipt number to the employer and employee. Once this receipt number is received, the employee can begin working for the new employer. When the petition is approved, both parties receive the I-797 form. This form proves that the employee is legally allowed to work in the U.S for that specific employer.

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

The U.S employer pays the relevant fees

During the application procedure for the H1B transfer, the fees are similar to initially getting the H1B visa. Since the employer is hiring a new foreign worker, they will have to pay the following H1B transfer fees:

  • I-129 form filling fees
  • The American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) Fee – which is $750 for employers with less than 25 full time employees in the U.S and $1,500 for employers with more than 25 full time employees in the U.S
  • Fraud Prevention and Detection Fee – $500 for each foreign worker
  • The Public Law Fee – $4,000 if the employer has more than 50 employees, and 50% of them are on H1B or L visas.
  • If they want Premium Processing, the extra fee is $1,225 by filing Form I-907 with USCIS

The employee or the applicant has to submit these documents to USCIS:

  • Copy of the offer letter from employer
  • Copy of passport
  • Copy of current H1B visa (visa stamp)
  • Copy of Form I-797
  • Copy of 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
  • If you have medical professions, you will need to submit a copy of your state license

Since you already have an H1B visa, you will not need to go through the entire process of applying for it again. So you will not file a DS-160 Form. You will only submit those documents to USCIS and they will process them. The only condition to apply for a transfer is that your current H1B visa is still valid. If it expires, you cannot apply for a transfer, but you will have to apply for the H1B visa again from the beginning.

H1B Transfer Processing Time

The processing time for the H1B transfer documents is dependent on the method of processing. The processing time of a H1B visa transfer takes 1 to 4 months to process under a regular procedure and 15 to 30 days for premium processing.  The answer from USCIS might be positive or negative.

However, if the applicant wants the processing to go faster, they will have to pay the H1B transfer premium processing. The fee for this service is quite high, around $1,225. But if you choose this method of processing, it will only take 15 to 30 days to process your application. With premium processing you will find out whether you can start working at your new employer or if your petition has been denied.

To get an H1B transfer visa, there are several steps to take and each one of them has an approximate timeline. The H1B transfer time is divided in these three steps:

Applying for the LCA

Since getting the LCA is the first necessary document to get an H1B transfer visa, nothing else can be done until this part is approved. Applying and getting the LCA takes approximately 7 business days.

Gathering and submitting documents and fees to USCIS

Both the employee and the employer need to gather all necessary documents, as well as pay all the applicable fees. The process of submitting the documents takes around 10 days.

Why Was Your H1B Transfer Denied?

There are instances where the H1B visa transfer is denied by USCIS. However, there might be a step before the denial. USCIS might send you a Request for Evidence (RFE). The RFE does not mean that your H1B transfer is denied, but it means that USCIS needs more documents to make a decision.

These documents can be different depending on the case, but in general there are four types of RFEs:

  • Educational Qualifications – which means that the employee needs to prove that they have the qualifications they claim to have. This includes additional diplomas and certificates.
  • Determination of a specialty occupation – the employee has to prove that they fit the definition of a specialty education through advanced educational degrees or extensive training
  • Proof of employer/employee relationship – both parties need to prove to USCIS that they have a valid working relationship and the job offer is not fake
  • Financial documents – the employer has to prove that they can afford to hire a new employee and that they can pay them correspondingly

After the RFE documents are submitted by either the employer or employee, USCIS will make a decision. But what if the transfer is denied?

H1B transfers could be denied, but USCIS will provide some sort of reason as to why this happened. You can then reapply and get premium processing so that you get a response faster. But to understand USCIS H1B transfer visa denials, here are some of the most common reasons why it happens:

Not paying the right fees

USCIS fees change sometimes and applicants do not regularly check. If you or your employer mistakenly submit insufficient fees or you completely forget to pay one of the fees, USCIS will deny the H1B transfer

Employee lacks proof of specialty occupation

The H1B visa is a specialty occupation, work visa. If you apply for an H1B transfer for a job offer that you got, but cannot prove you have the qualifications for it, your transfer will be denied. This happens because you might not have an advanced degree or maybe your diploma is not the right fit for the position.

Failing to prove the employer / employee relationship

USCIS wants to make sure that your job offer is not fake. They want proof that there is an employment relationship. If they believe that there is not enough proof of such a relationship, they will deny the H1B transfer. To make sure this doesn’t happen, 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 you

If your employer has not submitted enough financial documents to prove that they can afford to pay your salary, USCIS will deny the H1B transfer. To avoid this, the employer should submit all financial and tax documents that are required and make sure that there is no reason why USCIS would believe that their financial situation is insufficient to hire foreign workers.

Besides these reasons, there could also be others such as:

  • You did not deliver the documents to the right entity
  • Your employer did not fill the documents accordingly
  • You have committed a crime or violated immigration laws

Any one of these would give USCIS reason enough to deny your H1B transfer. Therefore, make sure to collect all the right documents and fulfill all the requirements so that you can get your H1B transfer approved.

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