A basic overview of the visa is provided here. If you have further inquiries as to the application process or whether or not this is the correct route for your needs, please don't hesitate to contact us.
Individuals with current or previous H-1B visa status may apply for the ability to transfer to a different employer. While the beneficiary must follow non-compete laws and/or any other contractual agreements that he or she might have agreed to with the current employer in the transfer, the individual does not have to receive the current employer's permission.
In order for the H-1B visa holder to change employers, the new employer is required to submit an H-1B Visa Transfer Petition with USCIS. The beneficiary cannot do this on his or her own behalf. It is of course also important that the individual has not conducted any unlawful acts in the U.S. or violated his or her status, for in these cases the petition will likely be denied.
When work is allowed to commence
The American Competitiveness in the 21st Century Act (AC21) allows H-1B individuals to begin their new employment as soon as the new employer has submitted the H-1B petition to USCIS and received an I-797C Notice of Action receipt. However, it should be advised that the beneficiary wait until receiving an H-1B Visa Transfer approval from USCIS. This is for reasons that the individual is required to immediately cease working for the new employer if the petition is denied, and may be considered “out of status.” To avoid confusion and a possible unfortunate violation of status, in is therefore recommended that the beneficiary wait for approval to begin his or her new employment.
- The individual must commence employment on the date listed on the H-1B transfer petition submitted with USCIS and be under H-1B status.
- The beneficiary is able to begin working the day the employer receives the receipt from the USCIS.
- If the individual has incurred a gap in employment (ceased employment with former H-1B employer prior to transfer), it is advised that he or she file premium processing to avoid a status violation.
- The individual must provide pay stubs or other documentation as evidence of employment (i.e. a letter from the H-1B employer or a leave of absence letter).
The H-1B beneficiary should provide the following:
- U.S. visa, I-797, and I-94.
- Paystubs, a letter from employer or leave of absence letter.
- University degree.
- University transcript.
- Academic evaluation.
- Letter of Recommendation.
As for the new U.S. employer, the following documentation should be provided:
- A letter of position containing the job title and salary. It must be signed by the employer and H-1B visa holder.
- An in-depth description of the position's responsibilities and duties.
- Marketing material from company.
- Financial statements, annual reports or business plans.