A foreign worker with H-1B status can apply for transfer to a different sponsoring employer. This is a relatively recent change since those seeking transfers had to wait until the USCIS approved the transfer which was taking months.
Currently, an H-1B worker can begin working for the new employer once the transfer H-1B petition is filed and a receipt notice is received. The H-1B transfer petition is actually not a different form but merely just another H-1B petition to be filed by the sponsoring employee.
Further, the petitioning employee must be in lawful status and not have engaged in any unauthorized employment. No permission from the original sponsoring employee is required.
There are, however, some documents that need to be filed:
- 2 or 3 of the employee's most recent pay stubs
- Copy of the worker's most recent H-1B approval notice (Form I-797)
- Copy of the worker's entire passport, including blank pages
- Photocopy of worker's I-94 Form (not the original)
- Copy of most recent visa stamp
- Most recent resume
- Copies of any previous approval notices
- Copies of all degrees, diplomas, transcripts
- Copies of work experience letters and offer and relieving letters
- W-2 form and tax returns
In some cases, an employee with an approved H-1B visa never entered the US nor worked for the sponsoring employee. If the worker wants to work for a new employer, that employer must file a new H-1B petition. Since there are no paystubs and the employee never worked in the US, there is no issue of extending the H-1B status. The worker will be issued an I-94 when he/she enters the US.
The worker must work in the city or area where the LCA was filed and in the position indicated on the form. If you are filing this for the worker, be sure that the LCA accurately reflects where the worker is working, any additional worksites, and the specific job.
What Happens if the Employee Voluntarily Terminates Employment?
Should the employee decide that the position with the sponsoring employee is not suitable or circumstances make it difficult to work there, what happens if he or she quits? Once the worker is no longer employed, their H-1B status ends. It becomes the individual's legal obligation to leave the US immediately if no H-1B petition with another employer has been filed. However, if the worker finds new employment, they may choose to sponsor their visa. If the worker has a spouse on an H-1 or L-1 visa, then the individual may file for dependent status such as H-4 or L-2. An L-1 visa is one where the American company with an overseas operation may transfer certain employees to the US for up to 6 years. H-4 visa workers are not permitted to work, so the individual would have to file an H-1B application to work again.
For more questions on transfers or how tips for process management, get in touch with us here.
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a Bridge-affiliated partner attorney or another qualified legal professional.