What Happens When a Cap-Exempt H-1B Worker Wants to Move to a Non-Cap-Exempt Job?

Foreign specialty workers who come to the United States on an H-1B visa for a job that doesn't fall under the annual cap might have a rude surprise when seeking to switch to a different employer.

By , Attorney · Capital University Law School

Foreign specialty workers who come to the United States on an H-1B visa for a job that doesn't fall under the annual cap, such as working at a nonprofit research institute, do not have to face one of the challenging aspects of H-1B visas: Annual limits on the number of visas that can be allotted to people in most types of jobs mean that not everyone who qualifies for an H-1B on paper will actually get one. As long as the person in this situation is happy in their current job, they will never face the registration and lottery system that most H-1B applicants do. But what if they want to take a different job in the United States, perhaps with a private company to which the annual cap applies? Can they transfer their H-1B visa to work there?

This article will:

  • discuss how the annual cap will affect you if you're in this situation, and
  • give an overview of the procedure for switching to a new employer.

You might also wish to learn about How to Find a Cap-Exempt H-1B Job.

Dealing With the H-1B Cap for the First Time

If your only H-1B employer has been cap-exempt, you have not been counted against the annual H-1B cap or limited annual allotment. Universities and affiliated nonprofits are not subject to the annual quota for H-1B visas (65,000 base amount; 20,000 additional for U.S. graduate degree holders).

This means that if and when a private company files an H-1B petition for you (on Form I-129), success will depend on you being allotted one of the 85,000 visas—and the visas tend to run out fast. If the quota already has been exhausted for the current federal fiscal year (which runs from October 1 to September 30 of the following year), you would not be able to change employers until October 1. Therefore, you would want to check the H-1B quota usage and evaluate the timing for when the employer files the petition and when you can start the new job.

Procedures for Going From One H-1B Employer to the Next

The second thing to consider is that there really is no such thing as an "H-1B transfer." Each new employer must file a petition to sponsor you, and a prior H-1B approval does not guarantee that the next employer's H-1B petition will be approved.

Sometimes the word "H-1B transfer" is used to refer to someone who has H-1B status to work at one U.S. company and who is "transferring" to work at another company. If the H-1B worker already has been counted against the annual quota, then their allocation in the prior year's quota is "transferred." So it just means the person is not subject to the annual quota. But for someone going from a cap-exempt to a cap-subject employer, not even an H-1B visa allocation/prior year quota is being transferred.

Getting More Information or Legal Help

For more information, see Nolo's articles on Life in the U.S. on an H-1B Visa or consult an experienced immigration attorney, who can advise you on the possibilities to switch H-1B jobs before you bring it up with your current or possibly future employer.

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