H-1B Transfers: Understanding Portability Rules

At ilexlaw, PLLC we often hear from our H-1B clients that they are unsure what options they have to switch jobs in the United States to be able to remain in H-1B or another legal status.  Whether the H-1B employee is seeking a promotion by transferring to another company or is simply unhappy with his or her current employment, there are options that will allow the employee to remain living and working in the United States for a new employer.

Technically there is no official concept of H-1B transfer. However, H-1B employees may frequently transfer between jobs as long as certain requirements are met.

In order to transfer to a new H-1B position, the H-1B new employer must submit an entirely new H-1B petition for the transferring employee. This petition must conform with the normal H-1B rules as outlined "www.ilexlaw.com/h-visas/" . However, H-1B transfer petitions are not subject to the H-1B numerical cap! This means that despite filing a new H-1B petition, the H-1B employee will not have to undergo the lottery process as he or she was previously counted in the cap for the original H-1B employment.

Another important aspect of H-1B transfers concerns timing. Under the "portability rule" an H-1B employee may change his or her employer at the time USCIS receives the new H-1B petition. This rule applies so long as the employee:

1. Was lawfully admitted into the United States;
2. Is currently in a lawful status in the United States;
3. An employer has filed a non-frivolous petition for new employment before the date of expiration of the period of authorized stay; and
4. Has not been employed without authorization in the United States before the filing of such petition.

Another important thing to note for any transferring H-1B employee is that while he or she has no duty to inform the current H-1B employer about the transfer prior to leaving, there may still be important contractual or other employment based issues to be considered.

Additionally, while an employee may begin working for his or her new employer upon receipt of the new H-1B petition by USCIS, there is no guarantee that the new petition will be approved. If a new petition is not approved and the employee has already transferred to the new employer, he or she could risk falling out of status.

If you are an H-1B employee looking to transfer jobs or if you are an employer planning to hire an H-1B worker, consultation with an experienced immigration attorney can be vital to the success of your petition.

Contact ilexlaw, PLLC for H1-1B visa today for your free consultation.