Understanding H-1B Transfers in 2024
The H-1B visa is one of the most sought-after U.S. visas, offering a pathway to work in specialized occupations within the United States. However, once on an H-1B visa, many professionals encounter the concept of an H-1B transfer, whether for better career opportunities, company changes, or other reasons. This article will provide a thorough understanding of the H-1B transfer process in 2024, including eligibility, key steps, and important considerations.
What is an H-1B Transfer?
An H-1B transfer allows a visa holder to change employers while maintaining their H-1B status. Unlike the initial H-1B application, an H-1B transfer does not require the employee to be selected in the H-1B lottery again. The process involves the new employer filing a new petition with the U.S. Citizenship and Immigration Services (USCIS). Once the petition is filed, the employee can begin working for the new employer as soon as the transfer case is filed, although some employers wish to take a more conservative approach and wait for a receipt notice or an approval.
Eligibility for H-1B Transfers
To be eligible for an H-1B transfer, the foreign national must:
- Be Currently in Valid H-1B Status: The individual must hold a valid H-1B visa and be working under the terms and conditions of the original H-1B petition.
- Have a Job Offer from a New Employer: A new U.S. employer must offer a position that qualifies as a specialty occupation, requiring specialized knowledge and a bachelor's degree or higher.
- File a New H-1B Petition: The new employer must file an H-1B petition (Form I-129) with the USCIS, including the required supporting documents and filing fees.
- Comply with Prevailing Wage Requirements: The new position must meet prevailing wage requirements, ensuring the salary is appropriate for the job and location.
- Will need to have enough time left on their existing H-1B Visa to file for a new petition.
H-1B Transfer Process: Step by Step
- Job Offer and Acceptance: The process begins with the foreign national receiving a job offer from a new employer.
- Labor Condition Application (LCA): The new employer must file an LCA with the Department of Labor, outlining the job details and affirming compliance with wage requirements.
- Filing Form I-129: The new employer submits Form I-129 to USCIS, including proof of the employee's qualifications, job description, and LCA approval.
- Receipt Notice: Once USCIS receives the petition, they issue a receipt notice. The foreign national can start working for the new employer upon receiving this notice, even if the transfer is still pending.
- USCIS Processing: USCIS will review the petition and issue a decision. If approved, the H-1B visa holder can continue working under the new petition. If denied, the employee must cease employment and explore other visa options or legal advice.
Important Considerations
Grace Period: H-1B visa holders have a 60-day grace period after leaving a job to find new employment and have a new H-1B petition filed.
Travel Restrictions: Traveling outside the U.S. during the transfer process can complicate the application. It's advisable to consult an immigration attorney before making travel plans.
Premium Processing: Employers can opt for premium processing, which expedites the USCIS decision process, usually within 15 calendar days.
FAQ
Can I start working with the new employer before the H-1B transfer is approved?
You can begin working for the new employer once USCIS issues a receipt notice for the H-1B transfer petition.
Does the H-1B transfer count against the annual cap?
No, the H-1B transfer does not count against the annual cap, as you have already been counted when your initial H-1B visa was issued.
What happens if my H-1B transfer is denied?
If your H-1B transfer is denied, you may need to explore other visa options or consult an immigration attorney for guidance on next steps.
Is there a limit to the number of H-1B transfers I can make?
There is no limit on the number of H-1B transfers you can make, as long as each transfer meets all legal requirements and your total time in H-1B status does not exceed six years.
Can I travel outside the U.S. while my H-1B transfer is pending?
Traveling outside the U.S. while your H-1B transfer is pending can be risky and may affect the approval process. It's best to consult with an immigration attorney before making travel plans.