This visa is held by people with high educational degrees or have a high skill set in a particular subject and is one of the U.S nonimmigrant work visas. The H1-B visa is for people who have specialty occupations. One of the most popular H-1 visas is the H1-B known as sponsorship visa.
This H1B allows it’s holders to work in the U.S for a specified period of time, temporarily. In order to be eligible for this visa, you must find an employer who is willing to sponsor you. All the details on how to obtain this visa can be found on the H1B visa article.
The maximum amount of time you can stay and work in the U.S with this visa is six years. However, this visa when granted you can only work for three years, but you can file for an extension on this visa. Even so, these visa holders usually find better job opportunities and this makes them want to change their jobs and transfer their visa.
When you go to the U.S on this visa you already have a job, and will work for that particular employer. Nevertheless, for many reasons a change of job is sometimes wanted. And the visa transfer process begins, which we go into detail below.
What is H1B Transfer?
As far as this transfer process concerned, it is a change of employer while you are still on a valid H1B visa. To accept a new job, you must still have a valid H1B visa. The transfer process can start but can take a few months at least.
H1B Transfer Process
The transfer is very similar to initially applying for an H1B visa. However, the main difference is that there is no cap on how many applicants can apply for this transfer process. When applying for this visa, there is a 65,000 cap for the number of people who get this visa. Most importantly, you don’t have to go through the visa lottery with this transfer process.
The process of applying for a visa transfer is the following:
Get a New Employment Offer
Firstly, you must be offered a job with another employer, while you still work for a certain employer. This process cannot be initiated if you don’t have a job offer.
Employers from the U.S cannot employ foreign citizens without LCA certification. This document can be obtained from the Department of Labor. Form ETA9035E is used by employers when applying for this certification. LCA certification is in some ways a guarantee that the employer will treat the foreign employee accordingly and fairly and be paid a full wage. It states that the worker will work in a good work environment. Also, this way, the U.S government is sure that the employer hires legally admitted foreign citizens.
After this certification is obtained, the process can continue to the next step.
The Employer Has to File the I-129 Form with USCIS
Form I-129 is filed by the employer, and it serves as a petition for permission to hire foreign citizens. This is sent to the United States Citizenship and Immigration Service. After that, USCIS either denies or approves the petition.
While being processed, a receipt number is sent by USCIS to the employee and employer. After this receipt number is obtained the employee can start working for the employer. Form I-797 is sent to both parties after the petition is approved. This is proof that this is a legal employee of the specific employer.
Furthermore, Form I-9 also needs to be sent by the employer to USCIS, and it is otherwise known as the Employment Eligibility Verification form.
The U.S Employer Pays the Relevant Fees
The fees for this transfer process procedure are similar to those when initially getting the H1B visa. In order for the employer to hire new foreign worker, the following fees need to be paid:
- I-129 form filing fees
- The American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) Fee – which is $750 for employers with less than 25 full-time employees in the U.S and $1,500 for employers with more than 25 full-time employees in the U.S
- Fraud Prevention and Detection Fee – $500 for each foreign worker
- The Public Law Fee – $4,000 if the employer has more than 50 employees, and 50% of them are on H1B or L visas.
- If they want Premium Processing, the extra fee is $1,225 by filing Form I-907 with USCIS
These documents need to be sent to USCIS, by the applicant:
- Copy of the offer letter from employer
- Copy of passport
- Copy of current H1B visa (visa stamp)
- Copy of Form I-797
- Copy of Form I-94
- Copy of social security card
- Copy of qualifications (degrees and certificates)
- Recent paystubs (2 or 3 previous pay stubs)
- Copy of tax returns (if applicable)
- Updated resume
- If you have medical professions, you will need to submit a copy of your state license
Since you have an H1B visa already, you don’t need to go through the whole process of applying for it again. So there is no need to file DS-160 Form. Only the above-mentioned documents need to be sent to USCIS for processing. The one condition is granted that your visa is still valid. If it has expired, you cannot apply for a transfer, rather apply for a new visa from the beginning.
H1B Transfer Processing Time
To obtain a visa transfer, each of the process steps takes a considerable amount of time. And so, it is divided into three steps:
Applying for the LCA
For the process to start and continue this step is obligatory, nothing else can be done until this is approved. And applying for the LCA certification takes approximately 7 business days.
Submitting the Supporting Documents and Fees to USCIS
Both parties need to gather the needed supporting documents and pay all the obligatory fees. Submitting the documents takes up to 10 days.
H1B Transfer Processing Time
The processing time is dependent on the type of processing is initiated. With the regular type of processing, it takes anywhere from 1 to 4 months and with premium processing, it takes from 15 to 30 days. The decision from USCIS can be positive or negative.
If the applicant wants this process to go faster, then it’s necessary to get the premium processing time. The fee for this type of processing is about $1,225. This only changes the amount of time it takes to process this request so the answer can be positive or negative.
Why Was Your H1b Transfer Denied?
In some cases, the request can be denied. Usually, before this happens USCIS sends you a Request for Evidence (RFE). This doesn’t particularly mean that your request is denied, it only means that further evidence is needed by the USCIS to finalize a decision.
Depending on a particular case, these documents can be different. However, there are four types of RFEs:
- Educational Qualifications – which means that the employee needs to prove that they have the qualifications they claim to have. This includes additional diplomas and certificates.
- Determination of a specialty occupation – the employee has to prove that they fit the definition of a specialty education through advanced educational degrees or extensive training
- Proof of employer/employee relationship – both parties need to prove to USCIS that they have a valid working relationship and the job offer is not fake
- Financial documents – the employer has to prove that they can afford to hire a new employee and that they can pay them correspondingly
Finally, after the RFE documents are sent by the employee or employer, USCIS can finally make a decision. But your request can still be denied. So what then?
The transfer could be denied. Even so, USCIS will always provide an explanation to why the request had received that decision. However, you can reapply for a transfer and get premium processing so you can get a decision much faster. To know why denials of transfer happen, the following are the most common reasons why it happens:
Not Paying the Right Fees
The fees needed for this transfer constantly change, and applicants do not check this. If for some reason the fees aren’t paid in full, or one of the fees is not paid, the transfer will be denied.
Employee Lacks Proof of Specialty Occupation
As mentioned above, this visa is a specialty work visa. So if you lack the needed evidence to prove that you are qualified for the particular job position, your request will be denied. This can happen if you do not have the right fit of diploma for that position or an advanced degree.
Failing to Prove the Employer/employee Relationship
To know that your job offer is not fake, USCIS wants evidence to know that there is an employment relationship. If they consider that your evidence is not enough they will deny your transfer. So make sure that all the needed supporting documents are sent, as well as the work contract. The contract should highlight the job description, responsibilities, location of work, and salary.
The Employer Is Unable to Pay You
If USCIS finds that your employer is not able to pay your salary your request is automatically denied. They need to provide the needed financial documents and tax documents to prove that the employer is sufficient to pay your salary in full.
Take into consideration the following reasons, because that might occur as well:
- You did not deliver the documents to the right entity
- Your employer did not file the documents accordingly
- You have committed a crime or violated immigration laws
All of these can be a reason that your request could be denied by USCIS. To make sure this doesn’t happen, be sure to collect the right supporting documents and fulfill the needed requirements, to get your transfer approved.