Under your initial H1B visa, you will only be permitted to work for a specific employer in the United States. This means if you change jobs, your new employer will need to file a fresh petition on your behalf prior to the expiry of your existing status. This is known as an H1B visa transfer.

It is a prerequisite to transferring to a new employer that you have an existing H1B visa still in place when you accept your new job offer. Equally, you will need a job offer from a new US employer to initiate the H1B transfer visa process. You cannot transfer to another employer if you have not yet been offered the job.

You won’t need your current H1B sponsor’s permission to change your job, but you will need to ensure you comply with any other employment contractual obligations that may apply, such as non-compete clauses.

 

How to change employer under an H1B visa

 

Your new employer will be required to file a new H1B petition on your behalf, prior to the expiry of your existing H1B visa status. Your new employer will also have to file a Labor Certification Application with DOL, prior to filing the necessary petition.

You will have to submit various supporting documents to USCIS, including, for example, a copy of the offer letter from your new employer, a copy of your degree and any other certificates, as well as your updated resume.

 

H1B change of employer transfer process

 

The H1B visa is what’s known as a petition-based visa. As such, your prospective U.S. employer will need to file on your behalf Form I-129, Petition for a Nonimmigrant Worker, with U.S. Citizenship and Immigration Services (USCIS).

Once the petition is approved, USCIS will send your sponsor Form I-797, Notice of Action. Only once approval has been granted by USCIS can you submit your online application and attend an interview with your local Embassy or Consulate for your H1B visa.

Please note, however, that the approval of a petition does not guarantee that you will be issued a visa.

Your U.S. employer will also be required to obtain what’s known as labor certification from the Department of Labor (DOL) before filing the petition, and only once approval has been granted by DOL can your prospective employer petition to USCIS.

The Labor Certificate Application requires the employer to attest, amongst other things, that it will comply with the following labor requirements:

 

• The employer will pay you, as the beneficiary, a wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for your position in the geographic area in which you will be working.
• The employer will provide working conditions that will not adversely affect the working conditions of similarly employed US workers.

 

As an H1B visa holder, you may be initially admitted to the US for a period of up to three years. However, if you continue to meet all the relevant conditions, this time period can be extended, although generally speaking the maximum permissible period will not go beyond a total of six years.

Please note, however, the validity period of your actual visa relates only to the time in which you may travel to the US and apply for admission. It does not indicate how long you may remain, although it may allow for multiple separate admissions over a period of time.

Having been granted entry to the US by a customs official at the port of entry, typically they will provide an electronic record of your arrival date, the class of admission and advise you of the permitted duration of your stay.

 

H1B transfer costs

 

An H-1B transfer will incur several mandatory fees that the new employer is typically required to pay:

 

• Base Filing Fee:$460, applicable to all H-1B petitions.
• Fraud Prevention and Detection Fee: $500, required for new and transfer H-1B petitions; not required for H-1B extensions.
• American Competitiveness and Workforce Improvement Act (ACWIA) Fee:$750 for employers with 1-25 full-time employees; $1,500 for those with more than 25 employees ​
• Asylum Program Fee: $600 for employers with more than 25 full-time equivalent employees; $300 for small entities with 25 or fewer full-time equivalent employees; nonprofit entities are exempt.​

 

 

Key considerations when changing employer under an H1B visa

 

Changing employers can be costly, complex and time-consuming, although you can commence working for your new employer whilst USCIS is processing the new petition filed on your behalf, so long as they have been issued with an I-797C Notice of Action receipt.

That said, even if you have already commenced your new job role, this does not mean that the H1B transfer process is a foregone conclusion. By way of example, in determining the speciality occupation for which the H1B transfer visa is sought, USCIS may not be satisfied that you have the requisite qualifications and/or experience.

Alternatively, if you are found to have conducted any unlawful acts during your time in the US, or otherwise violated your immigration status, your petition for an H1B visa with a new employer will again probably be denied.

As such, it is recommended that you do not start working for any new employer until you have received H-1B visa transfer approval from USCIS, not least because you must cease working with that employer if the H-1B visa transfer petition is denied. You may then be considered “out of status.”

The H1B visa is a nonimmigrant work visa for overseas graduate level workers, including experienced professionals, wanting to travel to the United States to work in a speciality occupation that requires theoretical or technical expertise, such as engineering and computer science.

Any professional level job that usually requires a bachelors degree or higher as a minimum entry requirement can potentially qualify as a specialty occupation. That said, if you do not hold a bachelors degree you can still show degree equivalence through work experience and/or other qualifications.

In other words, the nature of the specific duties you will be required to undertake for your U.S. employer will be so specialised and complex that the knowledge required to perform these duties is usually associated with the attainment of a bachelor’s or higher degree.

You must also be able to demonstrate that you are uniquely qualified for the position in question because of your field of study or work experience. Needless to say, you will also need the offer of a job from a US employer who is prepared to sponsor you, and who can then petition for a H1B visa on your behalf.

 

H1B to Green Card

 

Having established yourself in your new job role, you may decide that you would like to live in the US on a more permanent basis. Under an H1B it is possible to petition for permanent residency in the United States, ie; obtain a green card, once you satisfy the minimum residence requirement, among other Green Card criteria.

 

Need assistance?

 

NNU Immigration are US attorneys specializing in American visa and citizenship applications. For expert advice on how to safeguard your lawful status in the US, contact us.

 

H1B transfer and change of employer FAQs

 

What is an H-1B transfer?

An H-1B transfer allows a foreign national already holding H-1B status to change employers without being subject to the H-1B cap again.

 

Do I need a new visa stamp for an H-1B transfer?

If your current visa stamp is still valid, you do not need a new one to begin working for the new employer, although a new petition must be approved or filed.

 

Can I start working for the new employer immediately after filing?

Once the new employer files a valid H-1B petition and receives a USCIS receipt notice, you may begin working for them under portability provisions.

 

Is the H-1B transfer subject to the lottery?

No. As long as you already hold H-1B status and were previously counted against the cap, a transfer is not subject to the lottery.

 

Does the H-1B transfer extend my stay in the US?

A new petition typically requests an extension of stay, often up to three years, depending on eligibility.

 

Do I have to inform my current employer before filing a transfer?

No legal obligation exists to notify your current employer before filing, but resigning should be done professionally and in accordance with your employment contract.

 

Can I apply for a transfer while outside the US?

A new employer can file an H-1B petition on your behalf while you are abroad, but you must wait for approval before reentering.

 

What happens if the H-1B transfer is denied?

If denied after you began working for the new employer, your H-1B status may be affected. You may need to stop working immediately and explore other options.

 

Can multiple employers file H-1B transfers at the same time?

You may have multiple H-1B transfer petitions filed simultaneously and choose whom to work for once a petition is approved.

 

Does the transfer affect my green card process?

If your green card sponsorship was tied to your former employer, you may need to restart or amend the process through your new employer.

 

When can H-1B employer change start?

An H-1B employee tranferring to a new H-1B employer is allowed to start work in their role once the new employer files Form I-129 petition, which must be before the employee’s period of authorized stay expires, and USCIS has issued a receipt number.

 

What is the grace period for H-1B change of employer?

H1B Visa Holders have a grace period of either 60 days or the end date of the visa for which the employment ceased before they must leave the US.

 

Can I transfer my H-1B before October 1 to a different employer I already have the H-1B approved?

It is possible to transfer to a new employer if you have an approved H-1B petition, provided you meet the visa requirements and the new employer has filed form I-139 on your behalf.

 

 

Glossary

 

Term	Definition
H-1B Transfer	The process by which an H-1B visa holder changes employers in the US without being subject to the H-1B cap again.
Portability	A provision allowing H-1B workers to begin working for a new employer once a transfer petition is filed and a receipt notice is issued by USCIS.
Receipt Notice	A formal acknowledgment from USCIS that a petition has been received and is being processed.
USCIS	United States Citizenship and Immigration Services, the agency responsible for processing immigration applications and petitions.
H-1B Cap	The annual numerical limit on the number of new H-1B visas issued each fiscal year.
Petition	A formal application submitted by a US employer to sponsor a foreign worker under the H-1B visa category.
Extension of Stay	A request to continue H-1B employment in the US beyond the original authorized period.
Visa Stamp	An endorsement placed in a foreign national’s passport allowing entry into the US in a specific visa category.
Green Card	A common term for lawful permanent resident status in the US, often pursued after holding H-1B status.
Concurrent Filing	The act of submitting more than one H-1B transfer petition with different employers at the same time.