Certain immigration matters may seem to complicate the transfer from one employer to another, but individuals with the status of an H1B visa still possess the ability to make the change. In fact, an individual who holds an H1B visa does not need permission from a former employer to transfer; however, non-compete agreements and contracts are still enforceable. The first requirement for an H1B visa holder to change employers is to submit a document called an H1B Visa Transfer petition. However, the visa holder is unable to file the document with USCIS on their own behalf.
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Choosing to Work with a New Employer
Once the new employer submits a petition to the USCIS, acceptance comes in the form of the I-797 C Notice of Action. Until complete approval is granted, it is wise for the H1B holder not to begin working for the new employer. In the meantime, the option to expedite the transfer is available via premium processing. The result is an official decision within 15 days of submitting the paperwork. Additionally, employers should be aware of all I-9 procedures and ensure that they have multiple copies of the employee’s I-94 and petition receipt.
If the employee receives notice that the H1B Visa Transfer has been denied, he or she must stop working immediately. The employee is then considered to be out of status. In order to avoid this, employees should always wait for approval before transferring in the future. Premium processing can help to reduce any potential gap in employment. Upon approval by the USCIS, the individual may begin working immediately.
H1B Visa Transfer Requirements
First, it is important that the individual has not committed any crimes in the United States, lest the petition be denied. Additionally, employees must ensure that they only begin working on the date indicated in the petition and continue working under H1B status. The employee is required to maintain pay stubs as evidence of their work, and a letter from the individual’s employer may be required as well. Adhering to these requirements may seem difficult, especially if you aren’t exactly sure what they are. If you are not sure, contact our firm to speak with an H1B visa attorney who can provide details about your requirements.
Required Documentation for an H1B Visa Transfer
Different documents are required from the visa holder and the employer. The H1B visa holder must provide a U.S. visa, I-797 and I-94. Employees should also submit a resume, evidence of university degree or transcripts, an academic evaluation, a letter of recommendation and either pay stubs, letter from an employer or a letter stating a leave of absence. The employer also needs to submit some documentation, including a letter of position that also includes the employee’s job title and salary. The H1B visa holder must sign the document, which should also detail the responsibilities and duties associated with the position. The employer should also include some of the company’s marketing materials, financial statements and a business plan.
Qualifying as a Spouse or Minor
The spouse and minor children (under 21) of the employee will also submit their own documentation for an H4 visa. In applying and being admitted, they are eligible for the same amount of time as the visa holder. Benefits of the H4 visa include being able to study in the United States, the ability to stay in the United States and the opportunity to travel in and out of the country while holding the status. Spouses and minors may also receive authorization to seek employment within the country as well.
Frequently Asked Questions about H1B Transfers
These questions are those frequently asked of our firm’s H1B transfer attorneys. The answers may help you make smart decisions.
Q: Do I need to tell my current employer that I’m going to apply for a transfer?
A: No, you are not required to do so. You may reveal your H1B transfer to whoever you see fit.
Q: How many times am I allowed to apply for a transfer?
A: No limits are put in place to prevent you from applying for as many transfers as you wish.
Q: Can I apply for an H1 transfer with multiple employers at once?
A: Yes. You can apply for a transfer with multiple employers.
Q: Do I need a new H1 visa stamp on my passport if I already have one from a previous employer?
A: No. The visa stamp was used as a means of entering the country; however, the stamp is not necessary unless it is no longer valid. The stamp and the H1 employer status are not the same thing.
Q: My H1 transfer was approved, but I decided to continue working with my current employer instead. What do I need to do?
A: Even if your transfer has been approved, you can continue working with your current employer.
Q: How many pay stubs should I submit?
A: Two to three pay stubs should be adequate.
Q: My H1B was approved but not used. Can I transfer it from outside the United States?
A: If you have the ability to show evidence that you were previously approved (via a copy of I-797 or a receipt number), a new employer can transfer the H1B. This is the case even if you have not yet entered the United States.
Q: What steps should I take if my transfer is approved but I don’t receive a new I-94?
A: Transfers do not always come alongside new I-94s unless the previous one has expired. Your old I-94 is still valid.
Q: Is my H1B subject to a cap?
A: No, your H1B transfer is not subject to a cap.
Q: How long does it take to receive approval of my transfer?
A: Each case differs from the last, but most H1B transfers take less than eight weeks once the application has been submitted to USCIS. The location of the employer and USCIS processing center may also have something to do with the amount of time the process takes.
We Are Ready to Assist You!
If you currently maintain an H1B visa and you are looking to change employers – call KPPB Law or contact us online. Our immigration attorneys have extensive experience managing H1B visa cases for both employers and employees. Our operations have been designed to eliminate application errors and to expedite the process as much as possible. We offer consultations so that you can understand your options and make the best decision moving forward. Contact us to schedule your consultation today!