Under the portability provisions of the American Competitiveness in the 21st Century Act (AC21), a foreign national worker previously issued an H1B visa and/or granted H1B visa status may transfer to a new employer.
Before the foreign national worker can join the new employer, the new employer must file an H1B visa Transfer petition with USCIS on behalf of the foreign national worker.
The foreign national worker must not have accrued unlawful presence in the US.
Under AC21, H-1B workers can begin working for a new employer as soon as the new employer files an H1B visa petition for the worker with USCIS.
The regulations define “filing” as having been physically received by USCIS. The only acceptable proof of USCIS receipt is the I-797C Notice of Action issued by USCIS upon receipt of a petition.
Qualifying workers for whom a petition was filed can begin work for the new employer immediately upon USCIS receiving the H1B visa transfer petition.
However, it might be in the best interest of the employee (“safe harbor approach”) to wait until an approval is received before transferring.
This can be expeditiously acquired by filing the H-1B transfer petition with premium processing (case is adjudicated within fifteen (15) days).
The primary limitation on this portability provision is that the new employer must have filed a “non-frivolous” petition, which is one with some basis in law and fact.
To take advantage of the portability provision, the worker must be in the U.S. pursuant to a lawful admission and must not have engaged in unauthorized employment since that admission.
Employers should follow current I-9 documentation procedures, as well as keeping a copy of the worker’s I-94 and a copy of the receipt notice for the new H1B visa petition.
If the H1B visa petition is denied, then the foreign national worker must stop employment with the new employer at that time, and the employee could be considered “out of status”.
Again, it might be in the best interest of the employee to wait until an approval is received before transferring which can be expeditiously acquired by filing the H-1B transfer petition with premium processing (the USCIS filing fee is $1225).
4 important things to know before you file the H1B Transfer:
You must be employed in H-1B status on the date that the H-1B Transfer petition is filed with USCIS.
The earliest date that you are allowed to start work is the day that USCIS receives the I-129 H-1B Transfer petition.
If there is a gap in your employment, meaning that you stopped working for your H-1B employer prior to the H-1B Transfer filing with USCIS, you should consider Premium Processing.
If you do not have paystubs, you may submit other documentation to prove your employment status, such as am Unpaid Leave of Absence Letter.
H1B Transfer Required Documents:
From the Employer:
Copy of the Job Offer Letter containing the Job Title, Salary Offered. Signed by both employer and foreign national.
Detailed Job Description.
Company Brochure and/or any marketing material.
Copy of most recent Financial Statement, Annual Report or Business Plan, if available.
Copy of Articles of Incorporation, if available.
From the Foreign National:
Copies of all U.S. visas, I-94’s and I-797 approval notice(s).
Copies of University Diplomas.
Copies of Transcripts from University Degrees.
Copy of Academic Evaluation of Foreign Degree, if available.
Copies of letters of experience from previous employers, if available.
Copy of Resume.
Copy of 3 most recent paychecks, Unpaid leave of absence letter, or letter from employer as other proof of employment.
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