An H-1B Transfer is Not Exactly a Transfer
The beauty of getting an H-1B visa is that it allows you to work for a U.S. employer in a specialized occupation for up to six years. An initial petition can be approved for up to three years and an extension can be granted for another three years. After six years, the employee must leave the United States for at least one year before she is allowed to get a new H-1B visa – at which time she would be entitled to another six years. There are instances where an employee can work in H-1B status beyond six years – most notably if the employer has filed a Labor Certification or I-140 petition 365 days before before the six years are up.
If an employee working in H-1B status is offered a job by another U.S. employer, the new employer can “transfer” the H-1B over. The word “transfer” is a bit of a misnomer because the new employer is not really transferring the H-1B visa over. Instead, the new employer has to file a brand new H-1B petition from scratch and, if approved, the employee will change from the old employer to the new employer – thus “transferring” his H-1B visa to the new one.
A lot of employers and employees think that, since they already have an H-1B visa, the process is simpler or “guaranteed.” Nothing could be further from the truth. The new employer must still demonstrate all the requirements for an H-1B visa. Specifically, the employer must be offering a job in a specialized occupation – meaning that the occupation is one in which a bachelor’s degree or higher is a common minimum requirement. The employer must also pay the employee the prevailing wage. It should be noted that the occupation does not have to be the same as the previous one.
Alice received an MBA from Stanford University and is working for Company A in H-1B status as a Financial Analyst. Company B has offered her a job as an Operations Research Analyst and Alice is inclined to take the offer because it pays more. Company B can file an H-1B petition on behalf of Alice. Once the petition is approved, Alice should give notice to Company A that she is leaving and she can then start working for Company B.
Note that Alice can start working for Company B as soon as the H-1B petition is filed but before a decision is made. She can also continue working for Company A at the same time. Some people choose to leave Company A and start working for Company B as soon as the H-1B petition is filed. While it is a personal decision, the employee should exercise caution before leaving Company A when a decision has not been made on Company B’s petition. The last thing the employee would want is to lose the position at Company A and then Company B’s petition is denied.