H1B Visa Transfer, Cost of H1B Transfer, H1B Transfer Documents Checklist, H1B Transfer Process, H1B RFEs, H1B Employer-Employee relationship, H1B Amendments, Risks with H1B Transfers, H1B Client Letters
What is an H1B Visa Transfer?
H1B Transfer is moving your existing H1B visa from one H1B Employer to another H1 Employer. In fact, H1 visa transfer is a term used for our convenience. The new H1B Employer will file a new H1B as an H1B extension of stay for H1B visa holders in the United States and Consular Processing for candidates overseas. The process is similar to filing your H1B the first time and may require full fee payment to USCIS if you are moving to a new H1B Employer. The advantage is you are not subject to H1B annual cap/quota, and you don’t have to wait until April of the following year. This provision is commonly known as H1B Cap-exempt.
An H1B Transfer is possible to another H1 Employer if you are presently in H1B status or you were granted an H1B, H1B Visa or H1B status in the past. If you are in the United States in a different status, but you had an H1B in the past, you can still transfer your H1B visa. If you are presently in H1B Visa Status and transferring your H1B to another Employer in the United States, it is very important to note that you must show proof that you are maintaining valid status, your recent pay stubs will determine your active H1B Status from your present or previous Employer.
If the new H1B Employer is a consulting company, they are required to show proof of a project confirmation to USCIS from a client/vendor or a viable in-house project to transfer your H1B.
I will attempt to discuss various situations and provide examples, based on my 16 years of experience working with H1B visas and from my research on the Internet forums, people have asked a variety of Questions related to H1B Transfers, Cost of H1B Transfer, H1B Transfer Documents Checklist, H1B Transfer Process, etc.,
Before we begin - Quick FAQs
When can I begin working with the new Employer?
Under AC 21, H1B Portability Regulations; you may begin working for the new H1B Employer as soon as you receive an H1B Receipt Notice and you don’t have to wait for an H1B Approval.
I am in the 7th year extension using an approved I-140, can I still transfer my H1B to a new Employer?
Yes, you may transfer your H1B using the I-140 approval from your previous employer. However, please ensure that the new Employer initiates a PERM and ports the I-140 upon PERM approval to continue your Green Card Process
What are the common factors for an H1B Candidate to Transfer H1B Visas?
It is possible that you fall under the list outlined below, and you are not aware of the fact that you need to move on, please read!
H1B Candidates move to other employers for various reasons as outlined below:
An H1B candidate has received a full-time opportunity with a Fortune 500/1000 Company, and the Company is willing to sponsor H1B visa and hire the H1B worker on a full-time basis
An H1B candidate is already an employee of a large Company or a large MNC working full-time and wants to move out for a better salary and a green card process
Please note that moving from full-time employment from a large public/commercial employer OR MNC to Consulting Employers has several benefits along with potential Risks!
I am thinking of moving to an IT Consulting Employer. should I Transfer my H1B?
Well, it depends on your personal and/or professional situation. There are various factors you should consider before making a move to a new H1B Employer. Please see if your situation matches any of the items listed below and then make a wise decision.
Why Most H1B Candidates working with IT Consulting Employers transfer H1B Visa?
Most Common Situations
- The employer pays the same salary from day one even after working for several months or years
- The employer retains a high ratio of bill rate paid by the Vendor or Client
- The employer does not provide significant benefits like Health Insurance
- The employer pays salary very late or pays only upon receiving payments from the Vendor or Client
- The employer never answers phone calls and even in an Emergency
- The employer is not established or not an American Owned Company (no security)
- The employer has no direct clients or Vendor Network or cannot find a project by marketing resume when the current project ends
- The employer will not provide copies/information on vital documents like H1B, PERM, I-140, etc.
- The employer is very slow with the Immigration process
- The employer has legal issues with government agencies (USCIS, USDOL, IRS, and closing down the business)
- Candidate wants to upgrade the Green Card Process from EB3 to EB2 Category as the present H1B Employer has filed a Green Card PERM labor under an EB3 category
- The employer does not provide GC sponsorship at all
Advantages and Benefits of H1B Transfers to IT Consulting/Staffing Employers
- More exposure to the market and the ability to learn newer Technologies. Of course, free training on new Software(s)/Tools from Clients
- Ability to work for various large clients/projects of your choice – You are the Boss!
- A rise in income of at least 20% to 40%
- Green Card process security as IT Consulting Employers do not halt/revoke the process just because your project has ended
- When a Project ends, you will move to another Project and no risk with the Immigration Process including H1B and Green Card
- It is essential to note that there is no significant benefit of being a full-time employee of a large company. In my opinion, your career is NOT SECURED. The day they lay you off, they cancel your H1B and Green Card and ask you to leave the country immediately. What we have seen many cases where the H1B employment is terminated after 5 to 6 years of Employment and H1B workers had to leave the country.
- The Good News in America – Either you work for a large company/MNC or a small IT Consulting Company; you will be exposed to large projects, H1B/GC will always come from the Government and Health Insurance, and other benefits are covered by external service providers like Aetna, BCBS, and United Healthcare, etc.
If you are planning to transfer your H1B to an IT Consulting Company, please ensure you work with an Established IT Consulting Employer, who works with Direct clients or Tier1/Preferred Vendors, pays on-time and do not require a fee for the Immigration Process.
Risks and Threats of H1B Transfer to IT Consulting/Staffing Employers
- With Immigration and job market, there are no guarantees that the H1B transfer with a new job/project will be a smooth sail!
- The USCIS can deny your H1B Transfer for several reasons, and you may be out-of-status
- Your new H1B Employer may turn out to be worse (Known devils are better than unknown Angels!)
- You may be fired or terminated from the new project on a Friday!
- If you have an approved I-140 (GC) from the previous employer, you may risk losing it.
- You may risk losing any bonus or benefits due to your present employer.
- Your employer may not provide an experience letter and may not cooperate if you need any documentation for a Green Card process.
Other Major Risk Factors/Issues
H1B Client, Employer-Employee Relationship Memo
It would be very challenging for H1B Employers to demonstrate that they will maintain H1B Employer-Employee Relationship during the H1B Employment. The major problem is with EVC (Employer-Vendor-Client) and more trouble with the ELVC (Employer-Layer-Vendor-Client) Models.
USCIS often requests a letter from the end-client requesting job duties, location of work, educational requirements and most importantly.
“The H1B Employer Controls your Employment with hire/fire abilities” This is your H1B employer and NOT the Tier 1 Vendor.
“We have seen RFEs requesting Client letters for even consulting companies who have direct clients.”
When you work at a third-party client (end-client); USCIS may require exhaustive documentation to support the H1B Employer-Employee Relationship regulations.
It is essential to ask the new H1B Employer about their best practices geared toward H1B Employer-Employee Relationship regulations. (Applies to IT Consulting Employers)
Documents that may support a Client Letter RFE when a Client Letter is not available. These documents do not guarantee approval; it all depends on how your H1B Employer/Attorney responds to the RFE and explain that none of the papers submitted will end up creating an Employer-Employee Relationship between you and Client or Vendor.
- A letter from Vendor with Client Location, Job Title, Duration, Job Duties, Educational Requirements. This letter should also state that "As a policy, the client will not issue a verification letter to H1B contractors for Immigration Purposes."
- A copy of the SOW between vendor and client
- All (even if 1000 pages) emails exchanged between you and client during your project since you started (if you are already on the project)
- Phone Number, Email of the Client Manager on Cover Letter
- Your ID from the Client site
- Copy of the Weekly Reports (This is Internal between you and your H1B Employer since you began working to establish an Employer-Employee Relationship)
- Health Insurance Cards, Paystubs, Performance Review Process, Organizational Chart showing your position with the H1B Employer.
- Copy of the Contract/MSA and Purchase order between your H1B Employer and Vendor
Recent updates and mandatory H1B Amendments
Please ensure that your new H1B Employer complies with the H1B Amendment regulations while filing new LCAs and amending the H1B from time-to-time when there is a Material change with the H1B employment. Unfortunately, most employers have somewhat complied by filing LCAs but not filing H1B Amendments. If your Employer is not amending the H1B when there is a change, you may get into trouble or go out of status while working at a work site not authorized by USDOL/USCIS – THIS IS VERY IMPORTANT.
When H-1B employees change their place of employment to a worksite location that requires employers to certify a new Labor Condition Application for Nonimmigrant Workers (LCA) to the Department of Homeland Security, this change may affect the employee’s eligibility for H-1B status; it is, therefore, a material change for purposes of 8 C.F.R. §§ 214.2(h)(2)(i)(E) and (11)(i)(A) (2014). When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H−1B petition with the corresponding LCA. This precedent decision represents the USCIS position that employers are required to submit an amended petition before placing an H-1B employee at a new worksite. USCIS will accept comments on the below draft guidance for a limited period.
When You Must File an H1B Amendment?
You must file an amended H-1B petition if your H-1B employee changed or is going to change his or her place of employment to a worksite location outside of the metropolitan statistical area (MSA) or an “area of intended employment” (as defined at 20 CFR 655.715) covered by the existing approved H-1B petition, even if a new LCA is already certified and posted at the new location.
Note: Once you file the amended petition, your H-1B employee can immediately begin to work at the new location. You do not have to wait for a final decision on the amended petition for your H-1B employee to start work at the new site.
When You Do Not Need to File H1B Amendment?
A move within an MSA: If your H-1B employee is moving to a new job location within the same MSA or area of intended employment a new LCA is not required. Therefore, you do not need to file an amended H-1B petition. However, you must still post the original LCA in the new work location within the same MSA or area of intended employment. For example, an H-1B employee moving to a new job location within the New York City MSA (NYC) would not trigger the need for a new LCA, but you would still need to post the previously obtained LCA at the new work location. This is required regardless of whether an entire office moved from one location to another within NYC or if just one H-1B employee moves from one client site to another within NYC.
Short term placements: Under certain circumstances, you may place an H-1B employee at a new job location for up to 30 days, and in some cases 60 days (where the employee is still based at the original location), without obtaining a new LCA. See 20 CFR 655.735. In these situations, you do not need to file an amended H-1B petition.
Non-worksite locations: If your H-1B employee is only going to a non-worksite location, you do not need to file an amended H-1B petition. A location is considered to be “non-worksite” if:
The H-1B employees are going to a place to participate in employee developmental activity, such as management conferences and staff seminars;
The H-1B employees spend little time at any one location; or
The job is “peripatetic in nature,” such as situations where their primary job is at one location but they occasionally travel for short periods to other locations “on a casual, short-term basis, which can be recurring but not excessive (i.e., not exceeding five consecutive workdays for anyone visit by a peripatetic worker, or 10 consecutive workdays for anyone visit by a worker who spends most work time at one location and travels occasionally to other locations).” See 20 CFR 655.715.
Please point the following Questions to your Potential H1B Employer!
Please do thorough research on the H1B Employer before you make a move!
I am surprised to note that most H1B Consultants research on “How many H1Bs filed” “Number of Green Cards Filed” etc. I have discussed these items later in this Article.
You must research the Company’s background including owners if they are US Citizens and Company’s standing!
If they are active in IT Consulting and IT Staffing business, I am sure they will be posting a lot of IT Jobs on the Internet.
- Check on www.dice.com (Dice is expensive for Employer subscription, only serious employers with Clients get a subscription)
- Check on www.indeed.com or www.simplyhired.com by searching with Quotations “ABC Company.”
- Check www.google.com by searching “ABC Company Jobs.”
- Check ABCCompany website to understand services offerings and jobs. You may also check company website traffic on www.alexa.com
- Ask for active Employee References!
- Get at least two references and discuss with Active Employees.
- If possible, research amongst friends.
- Ask questions about Resume Marketing Strengths!
It is essential that the H1B Employer have Clients and a Good Tier1 Vendor Network including a Good and experienced Bench sales team to provide project placements. Most consulting Employers are a one-person show and do not have any marketing abilities, and you may be required to find projects on your own.
Ask about payroll!
Getting specific dates for payroll is essential. Unfortunately, most IT consulting employers pay when they get paid! Hey, you need to pay bills, and it should not be your problem as to when they will get paid.
Fixed Salary Vs. Split/Percentage
If you agree on a Fixed Salary or Percentage, please ensure that the gross salary (including hourly rate) is listed on the offer letter, please ensure that your gross salary will be as it is listed on the offer letter to avoid surprises. Please also ensure that the offer letter specifies that you will get paid for any overtime.
If you will accept fixed salary/full-time, please ensure or agree on what happens during holidays and paid vacations (usually two weeks)
Examples: If your pay rate is $50.00/Hr and you work for 80 Hours, your gross should be $4000.00 on your paycheck
Health Insurance and other benefits
It is imperative to maintain the right Health Insurance in the United States. Please get more information about Medical Insurance by asking the following Questions.
- Does it cover dental and vision?
- What is the co-pay (Usually $20-$30)?
- What are the deductibles?
- What are the Emergency room charges?
This is very important as most H1B holders get surprises during Maternity for self (Of course, for a female H1B Worker) or Spouses.
Who pays for Health Insurance?
If you are going to work on a fixed salary, it’s always better to ask the Employer to cover 100% of the Health Insurance cost as this may be variable each year!
Most Percentage wise employment has deductions for insurance on paychecks, please ensure that the deduction is for the Actual amount paid to the Insurance carrier, and it’s a PRE-TAX deduction, you don’t pay taxes on Health Insurance expenses. Please note that Insurance companies send premium bills in advance to your Employer and each month, so be careful with the calculations!
Ask about Relocation Expenses
If you have to relocate to different locations between projects, you may have to spend a lot of money to relocate, especially if you are with a family. If you are going to work on a salary basis, please ensure you get the relocation information and the amount.
If you will travel to client sites and will work in a different state other than your home state and travel back every week, you may be eligible to receive per-diem expenses. If you will NOT move and work and reside in the same state, I suggest that you avoid unnecessary per-diem expense reimbursements, you may even get into trouble with the IRS or state agencies after several years to pay huge penalties and interests if the Per-diems received that were not legitimate! Please respect US Laws and be Happy!
What is the process in place to maintain the H1B Employer-Employee Relationship?
It is essential that they provide benefits like Health Insurance, Paid Vacations, Performance Review Process, provide computers/software and provide on-site/off-site supervision while obtaining/evaluating weekly reports during your H1B Employment to maintain a healthy H1B Employer-Employee Relationship
How do they handle RFEs if a Client letter is not available?
Are there any Methods in place to support RFEs from USCIS requesting Client letters including documentation they will use instead of a Client Letter? Do they use a Qualified Immigration Attorney?
Ask about H1B Visa Stamping and their experience with US Consulate documentation.
You may be required to stamp your H1B visa, or if you get married (if not already), you may need employer assistance for H1B/H4 Visa Stamping, please discuss with the H1B Employer for a future Visa stamping requirements.
USDOL Audits (Very Important)
Ask if the USDOL ever audited the employer for non-compliance or complaints from H1B Employees. I would ask them to send an email confirming “USDOL did not audit our Company. If audited, we are in good standing.”
A USDOL audit does not mean that the company is in trouble. Sometimes, there are random audits, and the H1B employer may be in good standing.
Payroll by companies like ADP or Paychex
Ask who processes the payroll, if the payroll is handled by large providers like ADP and Paychex, all withholding taxes are remitted automatically. If handled internally by a CPA or Quick Books, it is possible that they may not deposit withholding taxes on time.
How does it matter to me if H1B Employer does not pay taxes?
IRS or State Agencies may run after you in the future (Rare occasion)
You will lose your SS and Medicare Deposits if the employer has not paid taxes
Good Standing Certificate from the State of incorporation
If the company is in good standing, state governments issue a “Good Standing Certificate” or “Certificate of Clean Hands”. It is a good idea to ask for a copy from the last 3-6 months. If your Employer is in Good Standing, they should be able to share a copy.
Active Liability Insurance, Worker’s Compensation, and Limits
Liability Insurance will cover any damages you will cause to client systems or software
Workers’ Compensation covers you from any injury that occurs at work site
Employers are required to carry Liability Insurance, Worker’s Compensation with reasonable limits. All most all Clients and Vendors require good coverage of up to $5 Million. Check to see if they carry higher limits under their company name.
Ask about the Green Card Process
Please ensure your new H1B Employer will sponsor a Green card (Immediately) so that you will retain a priority date and use the I-140 Approval (Second step in GC process) to extend H1B beyond the congressionally mandate 6-year limit. To get an I-140 approval, it takes at least one year from the day they initiate the process.
Please do not waste time researching on the Internet as to how many Green Cards the employer has filed vs. approvals. If they have filed several GCs, they may be experienced, it does not mean that all the GCs will be approved (PERM/I-140)
Lesser the number of GCs filed by the employer; the chances of approval are higher. The same rule also applies to the H1B process.
However, employers with a good turnover of at least $10 Million and with US Citizens and Green Card Holders on the payroll are not likely to get into trouble with H1B/GC process (In other words – Non-H1B Dependent Employers)
Here are the major factors to get a successful PERM and I-140 Approval(s)
PERM – Job Order, Experience, Education along with proper efforts for Recruitment of US Workers!
I-140 – Ability to Pay, Documentation as listed on the PERM application
I will post another detailed article explaining the PERM and GC process; please stay tuned, Follow us at https://facebook.com/H1Transfer
When is a good time to initiate the GC Process?
Immediately. However, it best to get a GC process initiated while you are in under four years of your H1B. If you begin in the 6th year of H1B and should something go wrong with the GC process, you may have to leave the United States.
You must have a clear picture related to Immigration Expenses. Under normal circumstances, employers always pay for H1B and GC related expenses including any Attorney Fees. Most employers require candidates to pay the Premium Processing Fee as USCIS accepts a check from the candidate (you) when made out to “Department of Homeland Security.”
It is a good idea to discuss these expenses to avoid any surprise deductions from paychecks. I would ask the H1B Employer to send me a written confirmation about these expenses and fees.
Let’s discuss the H1B Visa Transfer process with Quick FAQs.
What is the documentation process involved in filing the H1B Visa Transfer petition?
Upon receiving a job offer from your prospective H1B Employer, you will have to gather all your documents. This is more than the way you gathered papers when you filed the H1B for the first time.
What documents am I required to gather H1B visa Transfer? - H1B transfer document checklist!
Candidates Presently in the United States
- Photo ID/Driver License (Employers may require for Everify once you join them)
- All Passports, all pages.
- Latest I-94 from the I-94 Retrieval System
- Degree Certificate and Transcripts
- Copies of all I-797s (H1Bs, L1s, H4s, F1s as appropriate)
- Educational Evaluation. (Foreign Equivalency Credentials Evaluation for overseas education –Mention H1BSupport.com and get a discount)
- Entry & Exit Details (H1 and L1 as appropriate)
- Experience / Reference Letters
- Last 3 Pay statements
- SS Card (if applicable)
- Copy of I-140 (if applicable)
Candidates applying from Overseas
- All Passports, all pages.
- Degree Certificate and Transcripts
- Experience / Reference Letters
- Copy of previous H1B Approval
Check this Article if you don’t have a copy (Read end of the Article). H1B FOIA Request to Obtain Copies of Immigration Records
I am married, what about the Documents for my spouse and children for H4 Visa and what is the fee?
All Passports, all pages.
Latest I-94 the I-94 Retrieval System
All Passports, all pages.
Latest I-94 (Front and Back) or screenshot from the I-94 Retrieval System
If the H4s have a longer validity, you don’t have to file H4 as H4 is NOT employer dependent.
“Dumbest thing to mention here! If your child was born in the United States, an H4 petition is not required as he/she is already a US Citizen.”
What is the documentation process involved in filing the H1B Visa Transfer petition?
Get a job offer from a new H1B Employer for H1B Visa Transfer
Employer creates a Notice of posting and posts a job on Employer website, job boards, and State websites as a part of the good faith recruitment efforts.
Employer initiates LCA (Labor Condition Application) with the USDOL (Time Frame: 7 Days)
Please read this Article for More Information How an LCA is filed for a New H1B and H1B Visa Transfer?
Employer posts an LCA filing notice for ten consecutive days at a conspicuous location at the place of employment
Employer creates a Public Access file and posts LCA at the employment/work location
Employer obtains necessary documents from Client/Vendor and you.
Employer/Attorney prepares H1B (I-129 Petition) Sample I-129
An employer also arranges form I-907 for Premium Processing Sample I-907
Employer/Attorney will mail the H1B package to the appropriate service center based on the location of work (California Service Center or Vermont Service Center of USCIS)
What happens after the parcel reaches USCIS?
If your Employer sent the H1B package with correct fee and signatures on all required I-129 Forms including LCA, USCIS would accept the H1B Transfer Petition for processing and…
Premium Processing: USCIS will email a receipt notice to H1B Employer/Attorney followed by a Physical Receipt
Regular Processing: USCIS will post/mail a Physical Receipt to H1B Employer/Attorney. USCIS does not send an email for H1B petitions filed under Regular Processing.
What is the processing time frame for H1B Transfer to my new Employer?
It depends on how your new H1B Employer files the petition, USCIS offers regular processing and Premium processing.
Regular Processing Time Frame: 1 Month to 6 Months (Maybe longer if there is an RFE – Request for Evidence)
Premium Processing Time Frame: 15 Calendar days (Yes, count Saturdays, Sundays and any other Federal Holidays). The 15-day period may reset if the USCIS has sent an RFE (Request for Evidence). The 15-day clock will reset from the day USCIS receives a response to the H1B Request for Evidence
Please note the following:
It is essential to obtain a copy of the H1B receipt notice for your records; you may sign up on the USCIS website to get text/email Alerts for your case.
How to get Email and Text Alerts for your petition with USCIS
More Frequently Asked Questions
My H1B Transfer Case was filed under Regular Processing; can I upgrade to Premium Processing?
Yes, please read this Article for more information with Various Scenarios and FAQs How to upgrade H1B from Regular Processing to H1B Premium Processing with FAQs
When can I begin working with the new Employer?
Under AC 21, H1B Portability Regulations; you may begin working for the new H1B Employer as soon as you receive an H1B Receipt Notice and you don’t have to wait for an H1B Approval
I'm planning H1 transfer to a new company. My last pay stub is from March (since then, I have been on leave, partly for medical reasons). My employment has not been terminated. Can I safely transfer to a new company?
Yes, why not. That's perfectly legal. You may go on Vacation, leave without being paid. As long as you maintain a relationship with your Employer by sending a written request and your employer approves the same.
Who has to pay h1b related fees? Employer or employee? Can an employee pay this fee?
The employer always pays the Fee; you may pay the premium processing fee!
My employer has hired me as a full-time employee. It says so on the offer letter. But on the H1B I-129 application, they have written 'part time' employee working for 25 hours a week. Even the LCA says part-time in the papers. Will this be an issue when I go to get the visa stamping? Also, this is the only project that I got as of now. So, is there a minimum number of hrs., I need to work while on H1? Are 25 hours legally approved?
You may need an offer letter as Part-Time. There is no limit of work hours under FLSA (Fair Labor Standards Act). You should not have any problems at Consulate if you are working 25 Hours and it's perfectly legal.
My H1 transfer to another company is approved. Now, I don't like to move from present employer, though my H1 has been transferred, can I continue with my current Employer?
You may continue to work with your present Employer even though H1 transfer has been approved. You may inform the other Employer that you will not be accepting the transfer due to personal reasons. You may continue to work for your present employer as long as you have not reported for work with the new employer that applied for your h1-b visa transfer.
I am holding an H1B visa from a Non-Profit Employer. I have a job from a FOR-PROFIT Employer, am I considered into the quota?
It depends - If you got your previous H1B under non-profit quota (there is no quota actually), you are subject to quota when a for-profit company files your h1b. Please check with your present employer, if they filed when the regular quota lapsed.
Please read this Article for More Information Good News for Non-profit Cap Exempt H1Bs who filed cap-subject H1Bs
Is it possible to apply for an H1 transfer (w/ I-94 extended without going to home country) to your company using present receipt notice while the extension is in progress? Or I have to wait for my extension approval to do the H1 transfer (w/ I-94 extended)?
Yes. H1B Transfer can be processed with the Receipt Notice, using that as a Bridge. You can get an I-94 extended; you may not have to go to the home country.
Conclusion: It is always in your best interest do thorough research on the H1B Employer and job market before you decide to transfer your H1B.
If you are planning to transfer your H1B or recently transferred your H1B, please post your suggestions, recommendations, experiences by commenting below. Please also comment if you disagree or agree with any information on this Article or you expect me to expand on a section.
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