Getting an H1B Visa to work in the US is subject to a lot of luck as the demand is extremely high. To give you a perspective, we had H1B Visa Lottery every year since 2013 for the last 10 years. No one wants to go through the process again. The reality after getting an H1B visa and working for a company for some time can be different. You may want to change companies as you do not like them or the culture. This is where the concept of H1B Transfer comes in.
Depending on your situation, you may want to transfer H1B when you are in the US or even before you enter the US. There are multiple scenarios. As part of this article, we will look at various scenarios, look at the overall process, and the documents required, and understand the cost, timelines, and common FAQs.
What is H1B Visa Transfer?
First of all, there is no official term that is called “H1B transfer“. It is a term coined for our convenience and that’s what everyone calls it. The official option that corresponds to the H1B transfer is called “Change of Employer“. When you fill I-129 Form, which is filed with USCIS when you file an H1B transfer petition, you would choose that option in Part 2.
Below is the screenshot of the I-129 form, where you see the option “Change of Employer” in Part 2, which is on Page 2 of the form.
Technically, the H1B transfer process is nothing but filing a new H1B visa petition with USCIS that is done using the above “Change Employer” option, but that does not have through go through the H1B Registration process or the H1B Visa lottery because the applicant has already been counted in the H1B visa quota cap.
Also, there is nothing really transferred from your old employer to your new employer or even your visa-related stuff. All they are using is your previous employer’s approval notice to ensure that you are cap-exempt and do not have to go through the H1B visa lottery again.
H1B Visa Transfer Eligibility Scenarios, Requirements
Depending on where the H1B visa applicant is during the time of the H1B transfer process, USCIS would look at various requirements related to the applicant, including the visa status of the individual. Below are the various common scenarios :
- H1B Transfer Applicant outside of the US and never visited America.
- H1B Transfer after entering the US, but in a short time.
- H1B Transfer after working in the US and the applicant is in the US
- H1B Transfer after working in the US, and the applicant outside of the US
- H1B Transfer with I-140 Approved
Importance of H1B Transfer Applicant’s Status in the US for H1B Transfer
USCIS looks at the H1B transfer applicant’s status in the US and verifies if the applicant has maintained proper status in the US, in order to approve the petition. It is important to understand this because, applicants have to provide relevant documents like Pay Stubs, Tax Documents, etc for H1B transfer to prove that they were in status at the time of filing. You may read the article US Visa vs Status to understand the difference.
Now, let us look at the above-listed four scenarios in the context of the applicant’s ‘status’ in the US.
Scenario 1: H1B Transfer Applicant outside of the US and never visited America
Usually, this situation arrives, when you, as an applicant, are living outside of the US and a Company in the US applies for your H1B Petition. Imagine, you got an H1B petition approved by a company, and also got your H1B Visa stamping done in your passport based on that company’s job details. Now for some reason, your old employer is not able to get you to the US, and you want to transfer to another company.
In the above scenario, USCIS usually looks at two aspects, one is the applicant’s current status and the second is cap exempt situation.
- Applicant Status:
- The concept of status in the US is not relevant as the applicant is outside of the US and will not have any US visa status.
- So, you as an applicant do not have to prove your visa status. So, there is no need to submit I-94 Arrival Departure Card or any relevant documentation to say that you are in any legal US Visa status
- Cap Exempt Qualification:
- The second part is the cap-exempt situation. This is the tricky part and a slightly grey area. In the past, USCIS used to consider a petition as cap exempt, if you had an H1B petition approved from the employer.
- But, in recent years, USCIS guidance says that you must have got H1B Visa Stamping done as well, to be counted towards the cap for an H1B transfer. What they are saying is, when you go for stamping, you get H1B status on paper and that’s when your H1B cap slots is technically counted.
- If you do not get stamping, they say that you never had H1B status, so cannot use your just petition approval for transfer to another employer.
- So, for you to be cap-exempt for transfer, you must have had H1B Visa stamping done as well after your H1B petition approval.
Scenario 2: H1B Transfer after entering the US in a short time
Usually, this situation arises when the H1B holder after arriving in the US, realizes that the employer is not the right fit or they have a better offer from another employer and they want to transfer immediately. When we say a short time, it means less than two weeks or 15 days.
If someone wants to transfer within 15 days or less after they enter the US, similar to above, USCIS would look at the applicant’s current status in the US and the cap-exempt situation.
- Applicant Status:
- As the H1B transfer applicant has arrived in the US, they have a status, which is H1B given to them at port of entry in a Stamp and I-94 reflects the status as well. The applicant can go online and download the electronic I-94 copy to get the status details.
- The applicant has to prove status, but there is no additional information, except the I-94 copy and the copy of the CBP Stamp on the passport that they need to submit to prove status.
- They do not have to submit any pay stubs or other tax documents to prove that they have maintained their status. This is because the duration is less than 15 days and most employers do not run payroll before 15 days.
- Cap Exempt Qualification: The applicant is cap exempt as they have both H1B stamping and entered inside the US on H1B visa status. If the applicant had H1B status at least once, they are counted towards the cap and are considered cap-exempt.
In the above situation, as the applicant meets both of these, they can do an H1B transfer to a new employer, if someone is willing to file a new H1B petition on their behalf. They do not have to exit the country, they can do an H1B transfer within the US.
Scenario 3: H1B Transfer after working in the US, the applicant in the US
This is the most common scenario of the three as many are in the US on H1B Visa working for a company and they get a better offer outside and they plan to move. Typically, this could be anytime after 15 days or a few months. Similar to the above situation, USCIS looks at the status and cap-exempt situations for transfer.
- Applicant Status:
- As the H1B transfer applicant is working in the US for some time, they need to submit additional documents like pay stubs, Tax returns from previous employers, including approval notice to prove that they maintained proper status all along.
- If an applicant does not submit the most recent pay stubs or tax documents, ( if over a year), USCIS may question the transfer and they may not approve the H1B Transfer with I-94.
- In such cases, the employee has to leave the US and get the stamping done at a US consulate and re-enter the US to work for the new employer.
- Cap Exempt Qualification: The applicant is considered cap-exempt as they worked on H1B before. So, this is implicit and the applicant needs to share the approval notice from the previous employer.
Scenario 4: H1B Transfer after working in the US, applicant outside of the US
This situation arises, when someone left the US after a few years of working on H1B, for whatever reason, and plans to come back to the US as they have not used all 6 years available for H1B. In general, you can recapture unused H1B Time, if you have not used up all the 6 years duration. Now, even in this situation, USCIS typically looks at the status and cap-exempt situations for transfer.
- Applicant Status: As the H1B transfer applicant is not in the US, the concept of status is not relevant, so the applicant does not have to prove his visa status.
- Cap Exempt Qualification:
- The applicant is considered cap-exempt as they worked in the US on H1B before and had H1B status at least once.
- Usually, applicants need to submit a copy of the approval notice of their previous employer. Optionally, the applicant may even submit payslips from his previous H1B employer, Bank statements, and W2 tax forms, in order to prove that legal status was maintained while the applicant was in the US.
- No proof is required for the period of time spent outside of the US. You can even submit your I-94 Travel History
So, applicants in the above scenario can transfer as long as they worked in the past and have not used up all 6 years.
Scenario 5: H1B Transfer with I-140 Approved
One more common situation is when someone has Form I-140 Approved. Usually, I-140 is applied as part of the Green Card process steps, with USCIS, where you wait for the priority date to become current.
In the context of H1B transfers, you can continue to work in the US even after 6 years on H1B, if you have I-140 approved. It also applies to H1B Transfers too. If you have an I-140 approved for over 180 days and is not withdrawn during that 180 days, you can use it to apply for an H1B transfer as long as you want without any time limit of 6 years. You can do these transfers until the priority date becomes current. To avail of this option, USCIS looks at the below
- Applicant Status: If the applicant is in the US, they need to submit status-related documents like I-94, Current Pay stubs, tax documents, etc.. If the applicant is not in the US, then it is not relevant.
- Cap Exempt Qualification: As the applicant of H1B transfer has used all 6 years, they need to prove that they have an employment-based green card process going on and I-140 is approved. So, you need to submit a copy of the I-140 along with the H1B transfer. If your employer has not shared it, you can get it using an FOIA request with USCIS.
Now that we know the eligibility for an H1B transfer, let’s look at the process involved.
Step-by-Step Process for H1B Visa Transfer
The H1B Visa Transfer process is exactly the same as filing a fresh H1B petition with a new employer. The fundamental difference is that with an H1B transfer, the applicant does not have to go through H1B Registration Lottery again as they are technically counted towards the cap. Depending on your situation, you would fall into one of the above-discussed scenarios, you would need to meet those requirements to prove status and cap-exempt situation.
Below are the steps involved for an H1B Visa transfer:
- Step 1 – Find a Job at H1B Sponsoring Employer: You need to get a job at an H1B sponsoring employer. Once you have the job offer, you need to work with their attorney and indicate that you already went through the H1B cap process and are eligible for cap-exempt petition filing as an H1B transfer.
- Step 2 – Submit all H1B transfer Documents: You need to provide all the required H1B transfer documents to your new employer to start the H1B transfer process. The complete list of documents is listed below in a separate section.
- Step 3 – H1B Sponsoring Employer / Attorney Files LCA with DOL: Once you send all documents, your new employer or their designated attorney will file Labor Condition Application(LCA) with the US Department of Labor (DOL). LCA has the job offered, salary offered, prevailing wage, and other info. For more info, read What is H1B LCA, why file it, and info in it.
- Step 4 – File H1B Transfer Petition with USCIS: After the LCA is approved by US DOL, your new employer will file an H1B transfer petition with USCIS. Basically, they will file form I-129 with USCIS with all the relevant fees, supporting documents regarding the offered job, etc.
- Step 5 – USCIS gives Receipt Notice and Adjudicates: Once the H1B transfer Petition is received by USCIS, they will issue a receipt notice to the employer/ attorney indicating that they have received the H1B petition and for tracking purposes. Depending on the load of the Service Center and filing type either regular or premium processing, the H1B transfer petition is adjudicated by USCIS in a few days to a few months.
- Step 6 – USCIS Approval, RFE: USCIS either gives approval decision or requests for additional information as RFE, depending on the case, and makes a decision of either approval or denial based on the overall petition.
- Step 7 – Employee or Applicant Decision: Once the H1B transfer approval is through, now it is up to the employee or applicant to make the decision to join the company. Unless it is a Change of Status petition, the applicant has a choice to either join or continue with the previous employer…
Let’s look at the documents checklist for the H1B transfer.
H1B Transfer Documents, Checklist
The H1B transfer documents are pretty much the same as the regular H1B petition, but additional details like current status in the US and previous H1B details have to be submitted. Some of the below documents are optional or may not be relevant for the applicant if they are in their home country and have never traveled to the US.
Checklist of H1B Transfer Documents:
- Copy of Job offer letter from New employer, with details of the Job title, Salary offered and signed by both applicant and employer.
- Resume of the applicant.
- Copy of Passport
- Copy of I-94 ( if already in the US)
- Copy of H1B Stamp on passport ( if already in the US or have done stamping)
- Copy of Previous approved H1B petition ( I-797 approval notice)
- Copy of SSN ( if already in the US and worked before)
- Copy of 3 or more most recent Pay stubs/ pay slips ( if already in the US )
- Copy of W2 Tax forms from employer ( if already in the US and filed taxes)
- Copy of Bachelor/ Masters Degrees or any higher education.
- Education-related University Transcripts in a sealed cover.
- I-140 Approval copy ( if applicable)
- Academic Evaluation (depending on the country, degree and university awarded it, there may be need for education evaluation and submit that as well, check with your attorney )
- Copies of experience letters, if any from your previous employers
- Any other letters of recommendation ( if any – optional)
H1B Visa Transfer Fees, Cost
The H1B transfer cost for employers includes application fees that are paid to USCIS and other fees such as attorney fees. Depending on the size of the company, the H1B filing fee can vary anywhere from $1,700 USD to $7,900 USD + the attorney fee( if any).
|H1B Transfer Fee Component||Fee in USD||Additional Details|
|Base filing fee for I-129||$460||Standard fee for every H1B petition|
(American Competitiveness and Workforce Improvement Act of 1998)
| $750 – for employers with 1 to 25 full-time employees )|
$1500 – for employers with 26 or more full-time equivalent employees)
|Fraud prevention & detection fee||$500||Needed as there is a change of employers|
|Fee-based on Public Law 114-113||$4000||Applicable, if 50 or more employees and more than 50% of employees are on H1B or L1 Visa status, required for new H1B filing and change of employers.|
Read H1B fee increase $4000 rule to check if it applies to your case
|Premium processing fee (Optional)||$2,500||Applicable only if the H1B Transfer petition is filed under premium processing.|
|Immigration Attorney Fee||Varies from $500 to $3000||Varies by attorney and can be anywhere from $500 to $3000. If the employer has in-house immigration team, this may not be an expense|
H1B Visa Transfer Processing Timeline
H1B transfer includes many steps from filing LCA, to working with an attorney and processing by USCIS. Each of these has its own processing time, so you need to factor in time for all of these below.
- LCA Processing time: As part of the H1B transfer, the employer has to get a New Labor Condition Application (LCA) for the job role at the location of employment. Getting LCA with US Dept of Labor can take anywhere from a few days to 7 business days, it is online and is quite fast.
- Attorney or Employe Processing time to Submit Petition: Depending on the complexity of the petition, both employer and applicant require time to gather documents needed for the H1B transfer petition. It can vary from a few days to a couple of weeks or more depending on the speed to get documents like transcripts, education evaluations, etc. You need to factor in at least a couple of weeks or more for this step.
- USCIS Processing time for H1B petition: After the petition is ready and submitted to USCIS, the processing time with USCIS for an H1B transfer petition can range from a few weeks to a few months or sometimes many months. There is no required SLA for H1B transfer petitions filed under regular processing and USCIS can take their own time based on load. It is recommended to file it under Premium processing if you plan to work soon for new employer after the H1B transfer. If you file in premium processing, you will get a response in 15 calendar days. Check USCIS Premium Processing
Overall, you can expect anywhere from a few weeks to a few months, depending on if you choose premium or regular processing.
H1B Transfer FAQs
You can work for New H1B Employer after USCIS receives the H1B transfer petition and issues a Receipt Notice ( I797C Notice of Receipt). This working provision with USCIS receipt notice is as per AC21 regulation. Unless really needed, it is recommended that you get an H1B approval notice, before you start working to avoid any issues with the transfer.
No, you do not need the permission of your current employer to file an H1B transfer by a new employer. Any H1B Sponsor can file an H1B transfer petition, which is basically a new H1B petition based on your current approval notice, on your behalf without any permission from your current employer.
No, you do not have to inform your current employer that you have applied for an H1B transfer. Having said that you are still governed by your employer contracts for the notice period and other obligations that you need to fulfill when you leave the employer. So, plan the start date at the new employer and other things factoring in these things.
No, you cannot do an H1B transfer from Cap exempt employers like universities or non-profit research institutions to a cap-subject employer like general MNC companies. You will need go through the standard H1B registration and lottery process if you wish to do so.
No, there are no limits. You can have multiple employers apply for an H1B transfer on your behalf of you at the same time. In general, many work full-time for one H1B employer. But, you may work for multiple employers simultaneously, if working part-time. This is called concurrent H1B and you need to apply for the same to work for more than on employer.
No, there are no such limits, you can apply for an H1B transfer as many times as you want in a month or year.
Your H1B visa stamp dates are not fully relevant for the H1B transfer. You are eligible for H1B transfer if you were counted in cap once and have not used up all 6 years of time. Also, you are eligible for transfer, if you have an approved I-140 petition.
What has been your experience with H1B Transfer? Share your thoughts in the comments below.