Transferring your H-1B Visa [1] to a different employer is a complex process that can have a significant impact on your immigration status. For that reason, many H-1B Visa holders are concerned about whether or not they can start working with a new employer before their application has been approved by USCIS.
Fortunately, pursuant to the American Competitiveness in the Twenty-First Century Act [2] (also known as “the AC21 law [2]”), you can transfer your H-1B Visa to a different employer and begin working for them immediately after the application is filed and accepted by USCIS, and you are not required to wait for the approval of the application.
Your new employer will need to go through the entire H-1B visa application process, as if they were your first employer, except for the Visa Lottery Registration – if you already have been granted a “Capped” H-1B Visa. Therefore, it is important to make sure that the new employer is eligible to sponsor the transfer, before you begin working for them, as a denial of your application could mean the loss of your immigration status in the U.S.
To learn more about transferring your H-1B Visa to a different employer, and when you can start working for the new employer, you may schedule a consultation with our Boston employment immigration attorneys [3] at FitzGerald Law Company, for assistance in assessing your particular situation. Call us today at (617) 303-2600.
How Do I Transfer My H-1B Visa to a Different Employer?
Since the AC21 law allows H-1B Visas to be transferred between employers in many situations, your H-1B Visa may be eligible to be transferred to a new employer by having the new employer file a new H-1B Visa application on your behalf with USCIS.
There is one major limitation which “Non –Capped” H-1B visa holders will face if they want to transfer to a new employer. If you did not receive your H-1B visa through the annual H-1B Lottery, then you likely have a “Non-Capped” H-1B visa. “Non-Capped” H-1B visa holders may only transfer directly to another “Non-Capped” employer in a “Non-Capped” position, otherwise, you must have the new employer apply for your H-1B through the H-1B annual lottery that is held in March of each calendar year. Our immigration attorneys can provide guidance on what your new employer will need to provide the USCIS and the process you can expect if you contact us for a consultation.
The Process to Apply for an H-1B Visa Transfer
Prevailing Wage Determination
There are generally three stages for submitting a complete H-1B visa application. First, you must retrieve the prevailing wage from the Bureau of Labor Statistics for the position offered in the location(s) where it will be performed. The prevailing wage for a position can generally be obtained from the Foreign Labor Certification Data Center’s Online Wage Library [4] for prevailing wage determinations. Remember to include your address as a potential work site if you will be working remotely.
Labor Condition Application (LCA)
The next stage is to obtain approval of the Labor Condition Application (LCA), Form ETA 9035, from the U.S. Department of Labor, attesting to compliance with the requirements of the H-1B program. This can take approximately one to four weeks to be completed. In order to file an LCA, the employer must be registered with the Foreign Labor Application Gateway System, or FLAG System [5], of the U.S. Department of Labor. Note that LCA’s may not be submitted more than six months before the beginning date of the period of employment.
H-1B Petition, Form I-129
The final stage is to file and obtain approval for your H-1B visa application, consisting of Form I-129, Form I-129H Supplement and the I-129 ACWIA fee Form. This phase can take approximately 90-180 days. These forms have to be supported with proper documentation about the job offered including responsibilities, education and experienced required, evidence of the employee’s education and preparation, as well as business records from the petitioning company (Click here for a complete list of documentation required for H-1B visa petition [1]).
It is important to appreciate the importance of listing accurate job sites with the Department of Labor applications as well as the H-1B petition, this may include listing your residence as a potential work site if the new employer utilizes a “hybrid” or a “work from home” model.
In certain circumstances, the USCIS may issue a request for further evidence (RFE), requesting additional documentation to support the application. An RFE would generally increase the amount of time required for USCIS to complete the process and may incur additional legal fees, depending on the additional work required. If an RFE is issued, it is important to work with an experienced immigration attorneys to provide the additional information to USCIS and to prepare a response with the appropriate analysis and legal arguments. Our Boston business immigration attorneys have successfully represented small and medium employers to obtain H-1B visas for their professional immigrant employees and specialty workers, and they can assist you and your new employer in reviewing and evaluating the documentation to make sure it is appropriate and sufficient for the USCIS to approve your H-1B transfer without unnecessary delays. Call 617-303-2600 to schedule your consultation today.
Keep in mind that time estimates vary depending on the volume and processing times of the different U.S. Immigration Service centers and estimates can be accessed from USCIS at https://egov.uscis.gov/processing-times/ [6] . During a consultation, our immigration attorneys can review your case to help determine an approximate timeline for your application’s approval.
Do I Need to Wait for the H-1B Visa Transfer to be Approved Before I Start Working with a New Employer?
No, generally you do not need to wait for the transfer of your H-1B Visa to be approved by USCIS, in order to begin working with the new employer, unless you have a “Non-Capped” H-1B Visa and you are transferring to a “Capped” position with the new employer. In most circumstances an H-1B Visa holder can begin working for the new employer as soon as the application has been filed (and accepted by USCIS), rather than waiting to receive approval of the application. However, if you begin working with the new employer prior to the approval of the application and your H-1B transfer application is denied, you may be left out of lawful status or “illegal,” making it much more difficult to return to legal status in the future.
What Fees Must Be Paid to Transfer My H-1B Visa to a Different Employer?
For the filing of an H-1B Petition, the Form I-129, requires the payment of a filing fee of $460.00, the employment fund fee depends on the size of the company, and it is $750.00 for companies with 25 or fewer employees and $1,500.00 for companies with more than 25 employees, with some exceptions for universities and a non-profit research institutions. The visa fraud fee of $500.00 is generally not required for a transfer, but there is usually a public law 111-230 fee of $2,000 for companies with more than 50 employees, with more than 50% of the employees in H-1B status. Lastly, there is a fee of $2,500 if filing an I-907 to request premium processing if the option is available. It is always a good idea to double-check the USCIS filing fees [7] online before applying, as these fees are subject to change.
What Happens If My H-1B Visa Transfer Application is Denied?
The impact of a denial of an H-1B visa transfer would depend on the situation. In some situations, if the H-1B transfer is not approved, then the individual’s original H-1B Visa status may be lost. This can seriously affect the person’s immigration status and whether they can stay in the United States. There are other circumstances that if you are currently in the United States with a valid non-immigrant H-1B visa, you may be allowed to continue to remain in that status. Our immigration attorneys can help explore your options if your H-1B transfer application is denied during a consultation.
Our Boston Employment and H-1B Immigration Attorneys Can Help
If you want to transfer your H-1B Visa to a different employer, our employment immigration lawyers can help you determine your legal options and to thoroughly prepare your immigration applications for the best chance of success. For a case consultation, contact FitzGerald Law Company at (617) 303-2600 of fill out our online consultation request [8].