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Your Comprehensive Guide to H1B Transfer
April 26, 2022
13 mins
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This article deals with the following points in detail:

  • H1B transfer - definition and eligibility requirements
  • H1B transfer - the process in detail
  • FAQs answered

As we get ready to explore the H-1B portability, we also recommend you to spend a little time to get familiarized with the H-1B visa.

Defining H1B Portability or H1B Transfer

H1B Transfer, also called H1B portability, is an option for employment transfer available to H1B visa holders who wish to change their employment situation. For the H1B transfer status to be implemented, the individual, who is already holding a valid H1B visa, must accept a new position under a new employer. Once these conditions are met, the lengthy transfer process can begin.

Eligibility Criteria for H1B Visa Transfer

Here are the criteria to be fulfilled for an H1B transfer to take place:

  • The applicant for the transfer must hold a valid H1-B visa at the time of application.
  • The applicant must be available to work on the day stipulated in the transfer application submitted to the USCIS. The working date can be set to the day the new employer receives the USCIS approval receipt.
  • Proof of employment will be necessary documentation that the applicant must produce. Paystubs are the most acceptable evidence of employment. In the absence of such evidence, the USCIS may also accept a letter from the employer or notice for leave of absence as secondary proof.
  • There may be cases in which the applicant is going through an employment gap in which they have to stop reporting for work at the previous place of work before taking up the duties at the new place of work. It is advisable to file for premium processing on your H1B portability application in such instances.

Many questions about eligibility and documentation may come up during the H1B portability application process. In these instances, it is best to contact and retain a qualified attorney to gain the right understanding of your status as an H1B portability applicant.

The Process of H1B Transfer or H1B Portability

The process for transferring your H1B visa is quite similar to the initial H1B application process. The major difference is that the H1B visa application process involves an H1B lottery system and is subject to a cap of 65,000 visas. Both these factors don't affect the H1B Transfer process. Here is a brief run-down of the steps involved in the visa transfer process:

1.A new employer makes a job offer
An H1B transfer can only be initiated once a new employer makes an offer of employment. It cannot proceed without proof of a valid new job offer.

2. The new employer files for an LCA
Similar to what happens in an H1B application, the new H1B employer has to file for an LCA test with the Department of Labor. This guarantees that the H1B employee will be paid the prevailing wage and that there is no instance of unfair treatment.

3. Filing the new i129 with the USCIS
Once the LCA is approved, the process moves to the USCIS, where the employer files an i-129 for permission to hire a foreign employee. On submission of the form, the USCIS will begin the approval process. Meanwhile, the employer receives a receipt number from USCIS, using which the employee can take up duties at the new place of employment. Processing continues until the USCIS decides to accept or reject the application for the H1B transfer.

4. Paying applicable fees
When employing a new worker under the H1B system, the employer will have to pay a sum towards processing and other mandates, including:

  • i-129 processing fee
  • Premium Processing fee, if applicable
  • The fee for the 1998 Act of American Competitiveness and Workforce Improvement
  • The fee related to Public Law
  • The fee for Fraud Prevention and Detection

5. The H1B holder submits the necessary documentation
Once the necessary fees have been paid, the H1B beneficiary will now have to submit the following documentation to the USCIS:

Copies of:

  • An updated CV
  • Offer letter from the new place of employment
  • Payment proof (two to three previous ones)
  • A valid passport
  • The current H1B visa stamp
  • Original i797 form
  • Original i94 form
  • Social Security Card
  • Educational credentials
  • Proof of tax returns filed, if applicable
  • State licenses or other credentials for specialized professions like those in the medical field.

The documents on the above H1B transfer documents list will have to be submitted to the USCIS, who will take them forward to processing the H1B portability. From the side of the H1B beneficiary, the only condition to be met for initiating an H1B transfer is that the H1B visa is current. In case it has expired, an application for an H1B visa will have to be initiated, and a transfer cannot be affected.

Status check for H1B portability or transfer

When the paperwork has been completed, the petitioning individual - employer, representative, or lawyer - receives a notice of receipt, with the receipt number as an email from the USCIS. The beneficiary can now start working at the new place of employment, and you can track the status online at the USCIS website for Case Status checking. At the end of processing, USCIS will publish one of the following statuses:

  • Status of transfer
  • Notice of Approval
  • Notice of Denial
  • Request for Evidence (RFE)
  • 'Intent to Deny' Notice
  • Notice to open an investigation for misrepresentation or fraud

Fees involved in the H1B transfer process
All mandatory H1B transfer fees will be paid by the employer sponsoring you. Unlike the H1B application, there will be no registration fee. Depending on your circumstances, transfer fees could vary widely, like attorney fees involved, etc. Your employer could be paying anywhere between USD 1,710 and USD 6,460.

H1B transfer processing time
Depending on the method chosen, the processing time for the H1B transfer documents can also vary. Regular processing could take anywhere from one to four months. The applicant could opt for Premium Processing, which could cost a higher fee, but would give you a decision within fifteen working days - just over two weeks. This option would help you decide whether you can start working with your new employer or not.

Visa-transfer eligibility: scenarios to consider
There are several scenarios the USCIS has set as guidance points about the applicant's location and their visa status to help them decide eligibility for transfer. Some of these may include:

  • An applicant who has never visited the US and is currently residing outside the US
  • Application for transfer a short time after entering the US
  • Application for transfer for an applicant in the US who has been working in the US
  • Application for transfer when the applicant is outside the US, after working for a few years in the US
  • Application for transfer with an approved i-140

It is very important that the applicant has maintained their visa status consistently for receiving approval for the H1B transfer.

What H1B transfer means for dependent spouses and minor children?
An approved H1B visa will allow the primary beneficiaries to bring their dependents to the US. Spouses and unmarried children under 21 can be admitted to the U.S. under the H-4 visa. Dependent visas reflect the primary H1-B visas in terms of validity and duration of stay. Employment authorization issued to an H-4 holder will also have validity dependent on the H1B, provided the primary beneficiary has an approved i-140 on hand. If the primary applicant transfers their status or the i-140 is revoked, the H-4 EAD cannot be renewed unless a new i-140 has been approved.

Cap-specific transfers
There are two types of H1B employers you may come across in your H1B journey - the cap-subject employer and the cap-exempt employer. It is commonly believed that one can enter the US under a cap-exempt employer and then transfer to a cap-subject employer without going through the lottery process. Be sure to remember that in this scenario, the new employer will have to file for a new i-129, and as a cap-subject employer, your application will be processed as a cap-subject application.

The most recent rule in the Federal Register
The final rule to be added to the Federal Register brought multiple changes to the H1B transfer process. For instance, H1B holders can change employers within the same occupation without applying for an H1B transfer. Additionally, you will have to fill out the i-485 supplement J form to prove that you have maintained your visa status and are eligible for an H1B transfer.

Understanding the Difference - H1B Transfer Versus Extension

The process for both H1B transfer and H1B extension has many similarities to applying for the H1B visa. Your employer has to initiate and carry forward almost everything to do with H1B.

H1B transfer is the process by which an individual with a valid H1B visa can choose to transfer sponsorship under a new employer who has offered them a new job.

As an H1B holder, you are granted a three-year legal stay period to remain in the US. When you near the end of this period, you will have to intimate to your employer that your H visa is up for an extension, which you may get for another three years.

Also Read: H1B Transfer Vs. H1B Extension: What's the Difference?

Why Was My Transfer Petition Denied?

There may be several reasons why the USCIS would deny your H1B portability petition. But it is important to remember that denials and rejections are rarely the primary courses of action. Most of the time, the applicant receives an RFE, or Request for Information, before a final decision is made. An RFE is not a decisive denial or rejection. It is indicative that the USCIS does not have enough documentation to process your request.

RFEs can differ on a case-by-case basis, but on average, there are four different types of RFEs you may receive:

  • 'Specialty occupation candidature' - The employee has to prove that they qualify as having higher education or extensive training for a specific role.
  • Educational credentials - If the USCIS is not satisfied that you have given enough proof of your credentials, you may be asked to provide additional proof in terms of certificates or diplomas.
  • Financial ability - the sponsoring employer has to give sufficient evidence of financial ability to employ, maintain and competently pay an H1B employee.
  • Employer-employee relationship - this is a crucial point that needs evidence from both the employer and employee that the job offer is valid.

There are chances that H1B transfers could be denied, but USCIS always makes it a point to provide a reason for denial. With reasons for denial clearly stated, you can rectify and re-apply, possibly through premium processing, to get a speedy response.

Here are some of the most common reasons why H1B transfer denials happen:

1.Incomplete or wrong fee payment - USCIS fees is constantly subject to change. It is the responsibility of the applicant to keep themselves updated and follow up on the right amount to pay as fees. There are instances where incomplete fees have been paid, or fees were not included in the application. Both these instances can become causes for denial of H1B transfers.

2. Insufficient evidence of the petitioner's validity - The acting sponsor's employer must be able to establish their identity as a valid US employer who can hire, maintain, pay, and provide sufficient specialty roles to engage an H1B candidate. This may involve a large amount of documentation and remains a crucial step in any H1B process. Insufficient evidence could lead to a denial or rejection.

3. Incorrect delivery methods - Many H1B transfer requests get rejected or denied because of incorrect delivery methods chosen by the applicant. Information about official delivery methods, including bonded delivery service agents and delivery to the right USCIS center, are easily available to applicants. Delivery of the H1B transfer petition file by hand is unacceptable. It has to go through the official bonded delivery agents like USPS, UPS, or FedEx.

4. Evidence of prior violations or anomalies - Any evidence of a violation of the law by the applicant or the beneficiary could result in a rejection or denial. Failure to maintain visa status, the required qualifications to maintain H1B status, or any evidence of a crime by either party while in the US could lead to outright rejection.

Differentiating between a Rejection and a Denial

Every application that reaches the USCIS office goes through a thorough evaluation process. Officers check for sufficient evidence and documentation for all points of eligibility. If anything is found missing, you may receive a notice of rejection.

There will be deeper scrutiny of both the applicant and the sponsor on supplying further documentation. At this stage, any lack of documentation or sufficient evidence will lead to a denial.

Frequently Asked Questions Answered

Can multiple employers sponsor H1B transfers for one employee simultaneously?
Since H1-B visas allow for part-time work, this scenario is possible. You can simultaneously work for different employers who can sponsor your transfer, provided they meet the H1B visas and transfer eligibility requirements.

Is there a limit to the number of times I can apply for an H1B transfer?
There is no limit. You can apply multiple times within a month or year. Portability or the freedom to transfer is one of several advantages the H1B has over other visa categories, like the L1 visa.

Should my current employer be intimated about an H1B transfer to a new employer?
This is not a requirement in H1B transfers. Information you reveal about your employment and visa status to your current or former colleagues or employers is completely within your discretion.

What are my options if I have received a Notice of Denial on my H1B transfer application?
Your options after a denial may be found within the reasons stated in the Notice of Denial. Filing with a new i-129 or with stronger supporting evidence for points that were found lacking may be one of your options. Appealing your H1B transfer denial may also be an option. To pursue legal actions like an appeal, it is advised that you seek professional help from a qualified attorney who can give you the right advice about your options. Professional help will also be warranted if there are special clauses in your Denial Letter that you are unsure about that make appeals difficult.

Will I have to stop working if my H1B transfer is denied?
Some clauses allow employees to start working for the new employer on the date they receive the USCIS notice of receipt. However, it may be wiser to wait until you receive a positive response about your H1B transfer in case there is a chance of denial.

A denial will warrant that you stop working immediately. If your H1B is current, you could either appeal the denial, re-apply for transfer, or return to your previous employer.

Do I have to leave the US immediately after H1B transfer denial?
Your stay in the US after an H1B transfer denial will depend on your H1B visa status or the expiry date on your i-94 card. If there is sufficient time available, you can seek new employment. In any case, it is not advisable to remain past your visa validity as any unlawful activity can result in serious consequences on your future in the US.

Conclusion

H1B visa portability is a great advantage for the H1B holder over other visas. Following the right procedures and submitting the right documentation will have you successfully transferred to a new employer in a matter of weeks.

For all intents and purposes, it may be wise to remain with your current employer until you get a favorable ruling on your H1B transfer application. Also, remember that a denial should not be a stopping point. You have a lot of options to consider in moving for a new application or an appeal. For best results, consult a professional.

H1B is a visa category that affords the holder many advantages over other visa categories. But, getting it done right is of the highest importance. As one of the largest databases of H1B information, TechFetch H1B will give you the right information for all your queries on H1B Visa.

**Disclaimer: H1B rules and regulations keep changing from time to time. For updated information, always refer to the USCIS official website.

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