H1B Visa Transfer FAQ's
1)I am currently on an H1B visa through Company 'A'. I am considering another offer from company 'B'.
Do I need a new H1B visa?
When can I start working for company B?
No, you do not need a new H1B visa, the existing one will be transferred.
According to a recently passed H1B bill you can now start working for company 'B', upon the receipt of you H1B transfer case.
2) Upon approval of H1B transfer visa applications, is there any time limit to join the new company?
Once your H1B transfer is approved, there is no joining time limit. It is totally up to you, when you want to report to work for the new Company.
3) Does the H1B Quota / Cap affect the H1B transfer procedure ?
No, the H1B transfer is a separate process, and it has nothing to do with H1 cap. It is a transfer of your existing H1B approval to a new company and is not a 'new' H1B.
4) I just got my approval notice for my H1B transfer. It doesn't have a new I-94. What should I do?
An I-94 is issued when you enter US, which contains a specific expiry date. It can only be issued if the existing I-94 has expired. In case of H1B transfers, it is possible that your I-94 is still valid. Hence, you won't be issued another.
5) Do you need to inform your present employer about your Visa Transfer? Is there any way that my current employer can come to know about my H1B visa transfer?
No! its not required to inform your current employer, and neither do they need to know about the H1B transfer filing by your new sponsor company.
6) Is there any limit for the number of times I can transfer my H1B visa?
There is no such limit, you can apply for as many transfers as you want.
7) Can I apply for an H1B transfer through more than one company at the same time?
Yes (but you can only work for one H1B employer at a time)
8) What if a person holding a H1B for Company 'A', applies for an H1B transfer through Company 'B', and once the transfer is approved, he changes his mind and doesn't join this company 'B'. Can he continue to work for his original company 'A'?
Yes (A person can have multiple H1B visas, but can work for only one H1B employer company at a time.)
9) I am working in H1B Status for a University (cap exempt). Can I transfer to a 'for-profit' company (cap subject) and be exempt from the H1B quota?
No. However, you may file a concurrent H1B Visa with the for-profit company while maintaining your University H1B Visa. In this scenario, you are able to start work for the for-profit company immediately after filing the petition with USCIS.
10) Under the terms of the H1B visa program may I go on a leave of absence? Will my visa become invalid or will I be able to return and continue working for my original employer?
Yes, you may take a leave of absence. At the end of your leave of absence you may return to work for your original employer in the US as long as your H1B Visa has not expired.
11) I was on an H1B visa with company A and got laid off, I applied for H4 status before I was laid off and got it approved recently. My question is its already been 60 days since my termination and now I have an H4, so can I apply for the H1B with a different company, and am I subject to the annual quota?
You will be able to apply for an H1B visa immediately, and start work as soon as it is filed. You will not be subject to the annual quota since you were previously already in H1B visa status and have not left the US for over 1 year.
12) Is it possible for me to be fall out of H1B visa status ?
The USCIS considers H1B Visa holders to be out of status once their employment ends, unless the H1B holder has filed a petition to transfer their visa to another company or another type of visa (example: F1 Student Visa, B2 Tourist Visa, etc.). There have been rumors that the H1B holder has 10 days or 30 days after they are laid off to file a transfer petition. This is not true, however the USCIS has stated they are taking into account the current economic slowdown into account when adjudicating H1B Transfers. You can file for a change of status to the B2 Tourist Visa immediately. This will allow you to remain in status in the US as a Visitor while you either find another job, go back to school, or prepare to leave the US.
13) I am an H1B visa holder and I just got married. My wife and her 12 year old son live my home Country. How do I get them over here to the USA?
Your wife and her son will need to go to the nearest American Consulate with the following documents: Their passports, the son's birth certificate, a copy of your marriage certificate, a letter from your employer stating that you currently work there, and a copy of your H-1B visa and / or approval notice.
Upon presenting these documents to the Consular Officer, he will stamp their passports with the H-4 visa and they will be free to travel to the U.S. to live with you.
The H4 will be valid as long as your current H1B visa is valid.
14) I am an H1B visa holder and my first 3 year duration is going to expire in a few months. My employer is filing an H1B extension for me. Do I have to file a separate extension for my wife and child's H-4 visa?
Yes you do. Use USCIS Form I-539.
You may use the same form for all of your H-4 dependents. You may file it with the H1B extension petition or after (as long as you include a copy of the I-797 Filing Receipt from your H1B extension application).
15) Under what circumstances can someone who is running out of his/her 6 years in H1B visa status, extend that status further ?
AC21 provides for such extensions in two circumstances:
Under AC21 section 104(c), a beneficiary of an employment-based first, second or third preference petition who is eligible for permanent residence but for the application of the per-country limits may obtain extension of the H-1B status until the adjustment of status is decided.
Under AC21 section 106(a), an H-1B status can be renewed in one-year increments for beneficiaries of any employment-based petition until adjustment processing is completed as long as 365 days or more have elapsed since the labor certification application or immigrant petition was filed.
16) I am currently working with company A. I am planning to join company B. I already have my Visa stamped under company A. When I transfer my H1B to company B do I have to get a new visa stamped again from home Country or can I continue to work in USA until I leave and re-enter.
You only have to get the H1B Visa stamp in your passport if and when you leave the US and before you re-enter.
17) How does someone become eligible for the AC21 section 105 H1B visa portability provisions ?
This section allows a beneficiary of a petition to change employers to begin the new employment upon filing of the petition, rather than waiting for the petition to be approved. The petition must be nonfrivolous, and the beneficiary must be a nonimmigrant admitted to the U.S. (no particular nonimmigrant category is specified, but the individual must have been previously issued an H-1B visa or otherwise provided H-1B status), must not have been employed without authorization before the petition was filed, and must be in an unexpired period of stay when the petition is filed.
18) Can an H1B Holder who starts starts working for his new employer under the AC21 section 105 portability provision leave the U.S. and re-enter before his H1B Transfer petition has been approved ?
Yes, but in order to re-enter the U.S., the H1B holder should have a copy of the I-797 Filing Receipt showing that the petition was filed and should have a letter from the new employer stating that the H1B visa holder is currently working for the new company.
An H1B applicant for admission who is no longer working for the original petitioner is admissible at a POE, pursuant to portability in AC21, as long as certain conditions listed below are met.
If these conditions are met, the H1B applicant is admissible to the validity date of the previous H1B visa petition, plus ten days.
H-4 applicants for admission, who are dependants of H1B holders employed pursuant to visa portability provisions, must meet these same requirements:
The applicant is otherwise admissible.
The applicant, unless exempt under 8 CFR 212.1, is in possession of a valid, unexpired passport and visa (including a valid, unexpired visa endorsed with the name of the original petitioner).
The applicant establishes to the satisfaction of the inspecting officer that he or she was previously admitted as an H-1B or the otherwise accorded H-1B status. If a visa exempt applicant is not in possession of the previously issued Form I-94, Arrival/Departure Record, or a copy of the previously issued I-94, the applicant may present a copy of the Form I-797, Notice of Action, with the original petition's validity dates.
The applicant presents evidence that new petition was filed timely with the Service Center, in the form of a dated filing receipt, Form I-797, or other credible evidence of timely filing that is validated through a CLAIMS query. In order to be a timely filing, the petition must have been filed prior to the expiration of the H1B's previous period of admission.
