I'm on an H-1B visa but got another job offer. Can I transfer my H-1B to the new company?

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Question:

I am an Indian national working for a U.S. company on an H-1B visa, but I am unhappy at my job. Recently, I began looking for a new position. One company has expressed interest in hiring me, but I’m worried that I’ll have to apply for a new visa. Is there any way to transfer my current H-1B to my new employer?

Answer:

Yes. It’s known as “H-1B portability” and it is one of the newer (and most welcome) updates to business immigration law.

Under old rules, nonimmigrants authorized to work on an H-1B visa had to wait until their new employer’s H-1B application on their behalf was approved before switching employers. Now, although the new employer will still need to file Form I-129, Petition for Immigrant Worker, with U.S. Citizenship and Immigration Services (USCIS), and to include all necessary documentation and pay the required fees, the process is much more streamlined.

Thanks to the American Competitiveness in the 21st Century Act (also known as “AC21”), once the employee receives a I-797C receipt notice that the petition has been received by USCIS, he or she can begin working for the new employer.

One of the most attractive benefits of H-1B portability is that those workers who were subject to “the cap” the first time around won’t have to worry about it again. Because they received their H-1B visa in a previous year, their H-1B transfer petition will not be subject to the dreaded numerical limitation. Another plus is that because you will be authorized to work as soon as the petition is filed, your new employer won’t have to pay any premium processing fees to get you on the job more quickly.

You are eligible for H-1B portability if your new employer submits a “non-frivolous” petition (one that has a reasonable chance of being approved) prior to the expiration of your authorized stay, and you:

  1. were lawfully admitted to the United States
  2. are in current (unexpired) H-1B status, and
  3. haven’t accepted any unauthorized employment since your date of U.S. admittance.

If the company that expressed interest in hiring you makes a firm job offer, make sure to require that it agrees to submit your H-1B transfer petition as a condition of your employment.

Be aware that H-1B portability does involve some risk. If the new H-1B petition is denied by USCIS, you will fall out of status and must stop working and leave the U.S. immediately. You may be denied for a poorly prepared application, your new company’s failure to meet the program requirements, or your own failure to meet the specialized knowledge requirement for your new position. Therefore, if your new employer does not already have competent immigration counsel, you should retain your own attorney who can make sure that you are receiving a job offer from an established company and that you are offered a salary that is at or above the prevailing wage before submitting the H-1B transfer petition.

To learn more about who is eligible for an H-1B visa and the application process, see Nolo’s topic section, “H-1B Visas for Temporary Specialty Workers.”

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