In some instances, an H-1B visa holder may encounter complications when they wish to transfer from one employer to another due to their immigration status. However, even though complications may arise, it does not hinder the visa holder from changing employers. An H-1B visa holder does not need permission from an employer to move jobs, however if they signed a non-compete or non-disclosure contract, these stipulations still apply. The first requirement for an H-1B visa holder to transfer to another employer is the submission of the H-1B Visa Transfer petition. This document, however, cannot be submitted to the USCIS by the visa holder themselves; the form requires that it be submitted by the H-1B visa holder’s new employer.
Working With a New Employer
After the new employer petitions to the USCIS for the employee to transfer employment and the petition is accepted, it will be received on an I-797C Notice of Action. It is suggested that the H-1B visa holder not begin working for their new employer until their employer receives a complete approval from the USCIS. In the intermediate period of pending approval, the H-1B visa transfer may be expedited through a premium processing procedure. An official decision may result within 15 days of the paperwork submission. Employers should also be cautious to follow all I-9 rules and procedures to ensure a correct submission. They should make certain that they retain multiple copies of the employee’s petition receipt and I-94 file.
If the employee’s H-1B visa transfer is rejected, he or she is legally mandated to cease working. The employee is labeled out of status, and must immediately comply with this designation. To avoid this situation, an employee should be sure that they have been officially approved of a transfer before beginning their work at a new employer. Undergoing premium processing can help avoid any employment gaps. Once the H-1B employee receives official approval of a transfer from the USCIS, they can begin their employment transfer.
H-1B Visa Transfer Requirements
In order to successfully transfer employers, an H-1B visa holder must have a clean record, having not committed any crimes in the U.S. If they have broken the law, their petition will be immediately denied. The employee must also comply with the regulation that they may only begin working on the date that the petition approves their transfer while still retaining their position under the H-1B specialty status. The employee must also retain evidence of their work by presenting pay stubs. In addition, a letter from the H-1B visa holder’s employer may also be required. If these requirements seem too difficult to understand and comply with, then it is highly suggested to seek the professional help of an H-1B Visa attorney. They can guide you every step of the way through the petition process and provide more details so you feel comfortable being armed with all the information and a good understanding of your responsibilities as an H-1B visa holder.
Required H-1B Visa Transfer Documentation
Two separate documents must be provided by the H-1B visa holder and their employer. The H-1B visa holder must provide a U.S. visa, and Forms I-797 and I-94. The employer must also submit their employee’s resume, their university degree/transcripts, academic evaluations, a letter of recommendation and either their employee’s pay stubs, a letter from the employer themselves, or a letter confirming their leave of absence. Additionally, the employer need also submit documentation that states their employee’s position title, salary and duties/responsibilities required for their position. The employer should also submit copies of the company’s marketing materials, financial statements, and business plan. The process concludes by the employee then signing the document.
Minors and Spouse Qualifications
The spouse and minors (children under 21 years of age) of the employee must also submit their own documentation to be eligible for an H4 visa designation in addition to the employee’s H-1B visa. Once accepted they are eligible to remain in the U.S. for the same maximum six year duration of the employee H-1B visa holder. The H4 visa holder may enjoy the benefits of studying in the U.S., residing in the U.S., and being free to travel internationally. Additionally, minors and spouses are also able to receive authorization for employment in the U.S.
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.
Duration Of Transfer Process
Though some cases differ, most H-1B transfers are completed within eight weeks of submitting a transfer application to the USCIS. The employer’s location and the schedule of the USCIS processing center may also affect the duration of the transfer process
H-1B Visa Transfer Assistance
If you are an H-1B visa holder and you are eager to change jobs, call Johnson & Masumi at 703-506-1470 or contact us online. Our attorneys are highly experienced in guiding those seeking an H-1B visa through the entire detailed petition process, along with assisting visa-holders’ in their understanding of their responsibilities under the H-1B visa and the regulations they must remain compliant with. Contact us to schedule a detailed consultation so you are aware of your options under the H-1B visa.