H1B Transfer: Balancing Career & Immigration

Are you a new member of this year’s H1B workforce? You're more than just a worker; you're a talent on the rise! Soon, as your skills sharpen, it is only natural to yearn for better roles and higher pay. Yet, you may wonder: Will a career move risk my legal status or future green card application? Can I find and convince employers to support an H1B transfer and back my immigration journey? While these might not be pressing issues for you at the moment, it is always good to stay informed ahead of time.

1. The Duration of H1B and Career Evolution

The H1B visa typically lasts for six years. Given the dynamic nature of careers and personal growth, it's unrealistic to expect one to remain in the same position with the same employer for that entire duration.

In January 2022, the U.S. Bureau of Labor Statistics reported that on average, workers stayed with their current jobs for about 4.1 years. The number tends to be lower with younger people. Those aged 25 to 34 had a median tenure of only 2.8 years, which means, it is almost inevitable for H1B visa holders to change employers at some point during their six years.

There are several common reasons for switching employers for H1B workers:

• Career Advancement: Over time, professionals naturally seek roles that offer more responsibility, leadership opportunities, and a chance to make a more significant impact. Staying with one employer might limit growth potential, especially if there's a lack of upward mobility within the company.

• Career Change: Some H1B workers might discover new passions or areas of interest during their tenure in the U.S. This could lead them to pursue entirely different career paths, necessitating a change in employer to align with their new goals.

• External Factors: Economic downturns, company restructurings, or other unforeseen circumstances can lead to layoffs. H1B workers, like their counterparts, are not immune to such corporate decisions. In 2022 alone, there were more than 93,000 jobs slashed from public and private tech companies in the U.S. Behind those jobs, many were H1B workers. They were forced to reenter the job market and find new employers to continue their journey in the U.S.

  *What should you do if you can't land a job within the grace period? We have an article for you. Read it, save it, and prepare for a rainy day…

• Cultural Fit and Work Environment: Just like local employees, over time, some H1B visa holders might feel that they'd thrive in a different company culture or work environment, prompting them to seek new employers that align more closely with their values and work preferences.

• Family Considerations: A lot can change over six years. Individuals who were fresh graduates when they first received their H1B might now be spouses or parents. Family obligations could necessitate relocation, leading to a change in employers.

2. The Legal Basis and Reality of H1B Transfers

The H1B visa offers the advantage of transferring your status from one employer to another. The American Competitiveness in the 21st Century Act (AC21) has simplified the transfer process, allowing H1B holders to start working for a new employer as soon as the petition is filed, provided certain requirements are met. Filing for a transfer is essentially filing a new H1B petition. However, this petition doesn't require re-entry into the H1B lottery, as you've already been counted in that year’s visa cap.

If you are trying to change employer before your H1B was approved and stamped, when the initial employer learns of a transfer petition filed on your behalf, they could withdraw their approved petition. Then, you will lose your H1B for good. However, once your H1B is approved, you do not need your current employer’s support to transfer your H1B.

As mentioned before, in 2022, the tech sector has seen significant layoffs, pushing many H-1B visa holders to find new employment within a constrained 60-day window or face deportation. Fortunately, over 90% of these laid-off H-1B visa holders have successfully secured new positions within the required time frame. Interestingly, compared to native workers, these immigrants found work 10 days faster, often relocating states for new opportunities.

If you're worried about changing employers as an H1B holder, don't be. Many before you have accomplished that without negative consequences.

3. Hesitations in Changing Jobs and Employers' Concerns

H1B holders often hesitate to switch jobs due to the complexity of the transfer process, potential legal implications, and job security concerns. Employers, on the other hand, may be wary of the associated costs, legal risks, and intricacies of the H1B transfer process.

As an H1B worker, you must grasp the H1B transfer process, even if you don’t care to be a “legal expert”. Having this knowledge and understanding of your prospective employers' reservations can not only ease your nerves but also give you an advantage during negotiations.

First and foremost, if you are an H1B worker, you're likely aware that not all companies in the U.S. are welcoming and supportive of foreign workers. Identifying employers who are not only open to sponsoring H1B transfers but also backing your future green card application is half the battle in achieving your long-term goal of building a life in the U.S.

Here's how you can find out if your dream company is a good fit for a foreign worker:

• Company's Careers Page

  Many companies that sponsor H1B visas will mention it on their careers or jobs page. Look for statements like "H1B sponsorship available" or "Visa sponsorship provided."

• Direct Inquiry

  The most straightforward approach is to directly ask the employer or the HR representative, either during the interview process or before applying. You might be surprised how many foreign workers overlook the effectiveness of this method or shy away from asking the very questions that matter most to immigrants.

• Online Databases

  Websites like myvisajobs.com and h1binfo.org provide information on employers who have previously sponsored H1B visas. While this doesn't guarantee they will sponsor a transfer, it indicates they are familiar with the process.

• Networking

  Connect with current or former employees of the company, especially if they are H1B holders. They can provide insights into the company's stance on H1B transfers.

• Industry Trends

  Certain industries, like tech and healthcare, have a higher propensity to sponsor H1B visas, as well as H1B transfers. Almost all big tech companies and Desi consultant companies are foreign worker-friendly.

• Consult with an Immigration Attorney

  If you're serious about transferring and have potential employers in mind, consulting with an immigration attorney can provide clarity. They might have insights into which companies are more amenable to H1B transfers.

• Glassdoor and Similar Platforms

  Some platforms allow employees to leave reviews about their companies. Occasionally, these reviews might mention the company's stance on H1B transfers.

Many companies that are generally open to sponsoring H1B visas might not accept H1B transfers. It might seem surprising, but here's why: If you're a recent graduate working under OPT authorization, you essentially cost the employer just a $10 H1B registration fee, allowing them to evaluate your work before committing further. If they recognize your potential, they might proceed with the H1B filing once you're selected.

However, for H1B transfer candidates, employers face a dilemma. They can't evaluate your performance without first investing thousands of dollars in the transfer process. Essentially, there's no probationary period for H1B transfers since you can't work for the new employer until the transfer is approved.

If you're unable to demonstrate your value upfront, it's understandable for an employer to be hesitant about making this significant H1B 'down payment' on your behalf.

Convincing Your Prospective Employer for an H1B Transfer

Here are some tips to help you persuade potential employers to accept your H1B transfer request:

• Highlight Your Unique Skills

  Emphasize the specialized knowledge or abilities you offer.

• Showcase Past Achievements

  Present evidence of your contributions to past employers.

• Understand the Process

  Familiarize yourself with the H1B transfer process.

• Offer to Cover Transfer Costs

  Propose to pay some or all H1B transfer costs.

• Seek Testimonials

  Obtain endorsements from past employers or colleagues.

Transfer Process Explained:

4. Q&A Session

Q: What is the H1B transfer process in simple words?

Here's a step-by-step breakdown of the process:

1. Job Offer: Receive a job offer from a U.S. employer willing to sponsor your H1B visa.

2. Labor Condition Application (LCA): The new employer must file an LCA with the U.S. Department of Labor (DOL). This application ensures that the employer will pay the prevailing wage for the position in the geographic area where the job is located.

3. Form I-129 Petition: Once the LCA is approved, the employer will file a new H1B petition (Form I-129) with U.S. Citizenship and Immigration Services (USCIS). This is not a new H1B visa application but a petition for transferring the H1B visa from the old employer to the new one.

4. Submit Required Documents: Along with Form I-129, the employer needs to submit various documents, including the approved LCA, job offer letter, a copy of the foreign worker's passport, prior H1B approval notices, and any other relevant documents.

5. Start Working After Receipt: Once the H1B transfer petition is filed with USCIS, the H1B visa holder can start working for the new employer immediately after receiving the receipt notice. This is due to the portability provisions of the American Competitiveness in the 21st Century Act.

6. USCIS Decision: USCIS will then process the petition and make a decision. If approved, the H1B visa holder can continue working for the new employer. If denied, the worker might need to stop working for the new employer and may need to take corrective actions based on the reasons for denial.

7. Note: The H1B transfer does not extend the maximum six-year duration of the H1B visa. If the visa is nearing its expiration, the new employer will need to file for an extension.

    

Q: What is the cost of an H1B Transfer?

The cost of an H1B transfer typically involves several fees, which are usually borne by the sponsoring employer. These can include:

• The base filing fee for the I-129 petition.

• American Competitiveness and Workforce Improvement Act (ACWIA) fee, which varies based on the size of the company.

• Fraud Prevention and Detection fee.

• Public Law 114-113 fee for companies with over 50 employees where over 50% are on H1B or L1 status.

• Attorney fees if the company uses an immigration lawyer.

• Premium Processing fee (optional / apx $2500) if the employer wants a faster decision.

Q: How long does the H1B Transfer process take?

• Regular Processing: from 2 to 6 months.

• Premium Processing: USCIS guarantees a response within 15 calendar days. This response could be an approval, a denial, or a request for additional evidence (RFE).

• Request for Evidence (RFE): If USCIS requires additional information or documentation, they might issue an RFE. Responding to an RFE can extend the processing time, depending on how long it takes to gather the required information and how quickly USCIS processes it once received.

Q: How does switching jobs under H1B affect someone's green card employment-based application?
If your I-140 (Green Card application) is approved, switching jobs can have implications. Before the I-140 EAD Rule, there was no official grace period post-job loss. Now, there's a 60-day grace period to search for a job and apply for a new H1B petition. Even after 60 days, you can stay, but USCIS might approve the new H1B petition without an I-94. With an approved I-140, you can have unlimited H-1B extensions, but it's advisable to file a new I-140 with your new employer for safety.

Q: Can I switch jobs right after the H1B lottery?
Yes, you can change jobs after the H1B lottery. However, if your original employer revokes the H1B visa before October 1st, you'll have to undergo a new lottery process.

Q: Is stamping mandatory after an H1B Transfer?
No, stamping isn't mandatory after an H1B transfer. However, if you travel outside the U.S., you'll need to get the visa stamped upon re-entry.

Q: If an H1B worker transfers to a new company, do their H4 dependents need to file or change any documents?

Normally No. However, there are some considerations to keep in mind:

• H4 Extension or Change of Status: If the H1B worker's new employer files an H1B transfer petition along with an extension, it's advisable to include the H4 dependents in that petition to extend or update their H4 status concurrently. This is done by filing Form I-539, Application to Extend/Change Nonimmigrant Status, for the H4 dependents.

• H4 EAD (Employment Authorization Document): If an H4 dependent has an EAD and is working, the H1B transfer for the principal applicant does not directly impact the H4 EAD. However, if the H1B status is extended, the H4 dependent might need to renew the EAD if it's nearing its expiration.

• Travel Considerations: If H4 dependents are outside the U.S. during the H1B transfer process, they can re-enter the U.S. using their valid H4 visa stamp, provided the principal H1B holder's status remains valid. If the H4 visa stamp has expired, they will need to obtain a new H4 visa stamp based on the approved H1B transfer petition of the principal applicant.

• Address or Personal Details Change: If there's a significant change in the H4 dependent's circumstances, such as a change of address, it's essential to notify USCIS using Form AR-11.

5. Final Thoughts

In the fast-paced world of the American job market, H1B visa holders often find themselves at a crossroads. The desire for career growth competes with the need for immigration security. For those willing to dive deep, the narrative is clear: Knowledge is power. This is why at www.day1cpt.org, we are dedicated to breaking down the information barriers and paving the way for new immigrants. In this particular case, by talking about the ins and outs of the H1B transfer, we hope we are not only helping you secure a new job but also penning another American success story.

Make your move, and let your story inspire the next chapter for many more.

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