The H1-B visa program allows U.S. employers to hire foreign workers for certain specialty occupations. In order to receive an H1-B visa, the employee is required to have a post-secondary education or certification in a field that requires some high-level expertise, such as medicine, research, or information technology. H1-B visa holders can stay in the United States for up to six years and apply for permanent residency during that time.
If you’re currently working under an H-1B visa for an employer in the United States, you may be wondering how to go about changing jobs. Attorneys typically call this an H-1B transfer, however, it’s important to note you’re not really transferring anything. Legally speaking, you’re just switching employer-sponsors. That’s why this process is not subject to the normal caps associated with an H-1B visa application.
It is also important to note that the Trump administration will be placing a temporary suspension on H-1B Visa Premium Processing on April 3, 2017. Premium Processing is used to expedite the application process to around 15 days in the event of an extreme emergency. You can still apply for the H-1B Visa Transfer Process under standard processing, which typically takes several months.
There are strict rules governing the H-1B visa transfer process. Completing the following steps will help you change employers when you’re working in the U.S. under an H-1B visa.
H-1B Visa Transfer Process – Steps Necessary to Switch Employers
In the year 2000, the American Competitiveness in the Twenty-First Century Act (AC21) allowed H-1B visa holders to switch employers. This “H-1B portability” enabled employees to begin working for new employers upon filing for the transfer with the U.S. Citizenship and Immigration Services (USCIS), instead of waiting for approval.
As the laws are currently written, if you are the holder of an H-1B visa, you do not fall under the H-1B visa cap that restricts the number of visas issued each year. You may transfer your visa to another employer at any time, and you may start work for the new employer as soon as you see the transfer request has entered the USCIS submission process. You don’t have to wait until the transfer is issued. You can transfer your H-1B visa as many times as you like, however, you can only work for one company at a time. You do not need permission from your existing employer to complete the H-1B Visa Transfer Process.
However, the Trump administration has recently established some broad bans on immigration that are a significant reminder that these rules and regulations are subject to change at any time. This has resulted in a great deal of uncertainty felt by both employees and their employers as to H-1B visa portability and what appears to be a shift in U.S. immigration policy.
It is for this reason that you may decide to wait until the H-1B visa transfer process is approved, before switching jobs. You may also elect to consult an immigration lawyer to help ensure that the forms are completed properly, which will help you avoid unecessary delays.
Keep in mind the following stipulations for applying for the H-1B visa transfer:
- To apply for the transfer, you must be currently employed as an H-1B visa holder on the data that the transfer petition is filed.
- The earliest data that you start work for the new employer is the day that USCIS acknowledges receipt of the I-129 petition.
- Your new employer must pay the fee for the transfer, which is the same fee you paid for the H1-B visa application.
No matter how you proceed, before you switch jobs, you must have the new employer file an H-1B visa transfer petition with USCIS on your behalf. Here are the steps they must follow to start the process:
- The new employer must file a Labor Condition Application (LCA) with the U.S. Department of Labor (DOL) for the location where the H-1B visa holder will be working. This alerts the DOL that the employer is seeking to employ a nonimmigrant worker for not more than three years. This application process takes about seven days.
- While the employer is waiting on the LCA approval, they should be gathering documentation and filling out the I-129, Petition for a Nonimmigrant Worker.
- Each petition must be printed and filled out completely with original signatures and sent with the proper filing fees.
- Note: In Part 2, Item Number 2 of form I-129 select box E. Change of employer.
- The new employer must follow the current I-9 documentation process, and keep a copy of the worker’s I-94 form and a receipt for the H-1B visa transfer.
- Supporting documentation must be included. For an employer, this includes the signed offer and acceptance letter, company financial statement, along with other relevant forms.
- The new employer should send the completed H-1B visa packet to the USCIS as soon as the LCA is approved. It is recommend that you send this via tracked overnight shipping.
The new employer must make a number of legal attestations during this process:
- They will agree to pay, at minimum, the prevailing wage for the role as set by the state employment agency. (If they want to pay a higher rate, which is fine.)
- The employer must agree that hiring the H-1B visa holder will not negatively affect the existing working conditions of currently employed workers.
- If a strike or a work stoppage occurs, the employer agrees that they will notify the DOL.
- They must agree to maintain an on-site physical filing system of records on their H-1B visa employees.
- If the employer is considered “H-1B dependent” they have additional forms to submit. An H-1B dependent employer has less than 25 employers that include more than seven H-1B workers; or, between 26 to 50 workers with more than 12 H-1B visa holders; or more than 50 workers with 15% of them holding H-1B visas.
- The employer must attest that they are not displacing U.S. citizens when hiring the H-1B visa holder. They must also state they’ve made a good faith effort to recruit U.S. citizens for the role.
H-1B Visa Transfer Process – Documentation Checklist
To start the process, you must submit the following application documents:
- Up to three months of your most recent pay stubs. If you don’t have paystubs, you must submit another form of documentation, such as an unpaid leave of absence letter. This isn’t required if the current H-1B visa wasn’t used or you are applying from outside the U.S.
- Form I-797, which is a copy of your existing H1-B Visa approval.
- Copy of all the pages of your passport, including the blank pages.
- Copy of Form I-94. Note that you do not need to send the original document.
- A copy of your most current visa stamp.
- A copy of your resume.
- A copy of your social security card.
- Any approval notices you’ve received.
- Copy of degrees and diplomas you’ve received here.
- Copies of work experience letters, or offer letters with the job title and salary, signed by the employer and H-1B visa holder.
- Marketing material or company brochure, and articles of incorporation, along with an annual report or financial statement, if available.
- W-2’s and tax returns, if this applies.
- Occupational or physical therapists must supply a copy of their state license and visa screen document.
- H-4 documents for the spouse or minor child, if applicable. This would include copies of your spouse's H1 approval, I-94, pay slip and marriage certificate. Copies of your child's passport and visa stamp, I-94 card (front/back), and birth certificate.
This process can take between two months to six months or more. Every H-1B case is different. You can check the status of your application here.
Once your H-1B visa transfer is approved, there is no federal time limit on joining the new company; it is up to you and your employer.
Call an Expert - H-1B Visa Transfer Process
Less than 100,000 H-1B visas are awarded to the skilled workers coming from countries outside the U.S. If you are considering requesting your first H-1B visa, the standard application process opens on April 3, 2017, to apply under the 2018 caps. If you need any help applying, contact Katz Law Office, Ltd.
Technology, biomedical research, and healthcare all depend heavily upon a skilled pool of specialized workers that come from outside the United States to lead our country to innovation in these fields. From start-up companies to established Silicon Valley giants, business leaders have been partnering with H-1B visa holders for years. H-1B visas are the most common way today to bring in outside talent legally and then help them earn a path to citizenship in the United States. If you are an employer considering your first sponsorship of an H-1B visa worker, please don’t hesitate to contact the experienced legal team at Katz Law Office, Ltd.
If you are an H-1B visa holder and would like to switch employers, Katz Law Office, Ltd. can help. We provide free 30-minute consultation that will help you determine your options as you navigate these complicated processes. Contact us today to find out how we can help.