Q1: What is an H-1B transfer?
A: H-1B transfer is the application process to transfer the foreign workers who are in a valid H-1B status sponsored by another employer to the new employer.

Q2: When can a person in an H-1B visa status transfer his/her H-1B status?
A: As soon as the employee receives the new job offer or as soon as the new employer issues the new job offer.

Q3: Under what circumstances is an H-1B transfer required?
A: There are four common circumstances: (1) transfer H-1B from one company to another company (CAP to CAP); (2) transfer H-1B from one company to a higher education (CAP to non-CAP); (3) transfer H-1B from a higher education institution to a company (Non-CAP to CAP) and (4) transfer from a higher education institution to another higher education institution (non-CAP to non-CAP).

Q4: Is H-1B transfer subject to the cap (quota)?
A: It depends. If transfer from a CAP H-1B to another CAP H-1B or from a CAP H-1B to a non-CAP H-1B or transfer from a non-CAP H-1B to another non-CAP H-1B, the transfer is not subject to the H-1B quota. If transfer is from a non-CAP H-1B to a CAP H-1B, the transfer is subject to the H-1B quota (CAP).

Q5: Before I apply for an H-1B transfer with my new employer, do I have to get consent or permission of my current employer?
A: Generally speaking, you don't need the consent or permission from your current employer for your H-1B transfer. However, be cautious if you signed the agreement with your current employer such as non-compete agreement and you intend to transfer your H-1B to your employer's competitors.

Q6: For an H-1B transfer, when can the alien employer start to work for the new employer?
A: If the H-1B transfer is from an industry job to another industry job or from a higher education job to another higher education job or from an industry job to a higher education job, the employee can start to work for the new employer as soon as USCIS has accepted the H-1B transfer filing. If the transfer is from a higher education job to an industry job, the employee should wait until the H-1B transfer has been approved and become effective.

Q7: For an H-1B transfer from a company to another company, how soon can the alien employee start to work for the new employer?
A: The new alien employee can start to work for the new employer as soon as USCIS has accepted the H-1B filing.

Q8: What do you mean by "USCIS has accepted the H-1B filing"?
A: It means that USCIS has cashed the filing fee checks and issued the receipt.

Q9: Can I start to work for the new employer as soon as the new employer sends out the H-1B transfer package via Fedex or UPS?
A: It is not a good idea to do so. You can do it at your own risk.

Q10: Is there any limit to how many times an H-1B worker can apply for an H-1B transfer? A: Legally speaking, no. The alien worker can apply as many times as you want. But practically speaking, the alien worker should not change job too often.

Q11: Can an alien worker apply for an H-1B transfer for multiple employers at the same time?
A: Legally speaking, Yes.

Q12: What documents are required to start the H-1B transfer application with Xielaw?
A: We will need some documents from the alien worker and from the new employer. If the alien worker's current H-1B was handled by this office, we just need the alien worker's pay stubs for more recent three months, a new job offer letter and the new employer information. Of course, the alien employee should also send us the updated information if his/her information has changed, such as new contact information, new passport, new I-94, etc.

Q13: What steps will we need to take to start the H-1B transfer application with Xielaw?
A: The H-1B transfer application is almost the same as a regular new H-1B application. The transfer process is simple and straightforward. First step, we need to collect documents/information from the alien worker and from the employer. Second step: we will prepare the H-1B paperwork, after we have received the documents/information, for the employer's review and signature; Third step: we will file the application with USCIS after we have received the signed paperwork from the employer and Fourth step: we will deliver the filing receipt and the approval notice to the employer and the alien employee.

Q14: What will the new employer need to do for the H-1B transfer application with Xielaw?
A: The new employer may need to do the following: authorizing the attorney to handle the application; providing requested information; reviewing and signing the paperwork prepared and paying the required filing fees.

Q15: The alien worker has an H-1B approval notice from his current employer. The approval notice has an expiration date that is two years away. Can he use the H-1B visa to work for the new employer?
A: H-1B is the employer specific. The new employer must file an H-1B application to transfer the H-1B from his current employer to the new employer so that he can work for the new employer.

Q16: The alien worker has an H-1B visa stamp in his passport from his current employer. Can he use the H-1B visa stamp to travel without obtaining a new H-1B visa?
A.: Generally speaking the alien employer can use the H-1B visa stamp to travel as long as the visa has not expired. But some additional documentation will be required. It is advisable to consult the immigration attorney before he travels overseas. If the H-1B visa stamp has expired (either from previous or current employer), the worker needs to obtain a new H-1B visa stamped in the passport before he can travel back to the United States again.

Q17: I have been working with my current employer on an H-1. One employer applied for an H1 transfer for me. But now I change my mind and decide to continue to work with current employer, can I do so?
A: Yes. You can continue working with your current employer if your current employer has not withdrawn your H-1B.

Q18: To do an H-1B transfer, do I need to provide any evidence of my current employment status?
A: Yes, you need to provide at least three most recent pay stubs if you do not want to apply for the H-1B visa overseas. If you cannot provide current pay stubs, you may be required to apply for H-1B visa stamping before you can start to work for the new employer.

Q19: My H-1B transfer application has just been filed by my new employer (Company B) and it has not been approved yet. However g I have just got a new offer from another company (Company C) that I really like and want to join. Can I ask the employer to file another H-1B transfer for me?
A: You can do so if you have not started to work for the employer that filed your first H-1B transfer (Company B) and you are still working for your current employer. If you have started your job with Company B, you will need to wait for the H-1B transfer application to get approved before you try to transfer it to the Company C.

Q20: What if I do not want to wait for the H-1B approval and simply ask the Company C to file the H-1B transfer application for me and I start to work for Company C?
A: If all requirements meet, USCIS may still approve your H-1B transfer application, but USCIS may require you to apply for H-1B visa stamp overseas before you can start to work for Company C.

Q21: I have an H-1B visa in my passport obtained through my previous H-1B employer, but the visa is still valid. I was laid off by my employer and I am back to my home country currently. Can I travel to the U.S. using that H-1B visa stamp to look for a new job or do a job interview?
A: No.

Q22: Is the employee's current employer required to notify USCIS of the H-1B transfer?
A: Yes, the employer should notify USCIS of the termination of the H-1B worker's employment.

Q23: What additional general advices can Attorney Xie give regarding to H-1B transfer?
A: Speaking from the standpoint of the alien employee: 1) Make sure to secure the new job before notifying your current employer of your resignation: (2) Make sure not to quit your current job before USCIS has accepted your H-1B transfer application; (3) Make sure not to start your job with the new employer until USCIS has accepted your H-1B transfer application; and (4) Make sure to employ an experienced attorney for your H-1B transfer (should not try to Do It Yourself (DIY) an H-1B transfer if you are not 100% sure what you are doing. We have seen some cases in which the alien worker tried to DIY, messed up the application and lost the $80000 job opportunity! Speaking from the employer side: (1) Make sure not to let the new employee to start the job until USCIS has accepted the filing; (2) Make sure the alien worker is in a valid H-1B status at the time of filing the H-1B transfer application if you need his/her services soon; (3) Make sure to pay the filing fees as required by the regulation and (4) Make sure to seek professional services to avoid unintended complications.

Above are general questions and answers that do not cover all issues to specific cases.  Contact Xielaw if you cannot find answer to your H-1B questions.