The H-1B visa program allows companies in the United States to temporarily employ foreign workers in specialty occupations. Tech companies heavily rely on H-1B visas to hire foreign talent, especially from countries like India and China.
Every year, the United States Citizenship and Immigration Services (USCIS) allocates 85,000 new H-1B visas – 65,000 regular H-1Bs and 20,000 for those with advanced degrees from U.S. institutions. However, the demand far outweighs the supply, so a lottery system is used to randomly select petitions. Those not selected have to wait until next year to reapply.
Can you transfer your H-1B to another employer after the lottery?
Yes, it is possible to transfer your H-1B visa to another employer at any point, whether your current petition was selected in the lottery or not. Here are some key things to know:
- You must have an active and valid H-1B visa status to be able to transfer. Your new employer will file an H-1B transfer petition on your behalf.
- There is no limit on how many times you can transfer your H-1B. However, you can only work for the sponsoring employer as long as the petition is valid.
- The transfer petition is not subject to yearly H-1B quotas or lotteries. You can transfer even if your new employer has exhausted their annual H-1B quota.
- USCIS processing time for a transfer is typically much shorter than a new H-1B petition. Transfers can often be approved in just a few weeks.
In summary, H-1B transfer provides an avenue to switch employers without going through the uncertainties of the lottery again. As long as your current H-1B remains valid, you can transfer to another employer relatively smoothly.
When is the earliest you can transfer after the H-1B lottery?
Technically, you can transfer your H-1B visa status at any time after the lottery, but the earliest that most transfers happen is from October 1st onwards.
Here is the typical timeline:
- April – H-1B lottery completed for the fiscal year beginning October 1st. Petitions selected are approved for start dates beginning Oct 1st.
- May to September – Wait for October 1st start date.
- October 1st – Earliest date the new H-1B becomes active. Employer can now file for a transfer petition.
USCIS will reject any H-1B transfer petitions filed before the requested start date. For lottery-selected cases, that is always October 1st or later.
Sometimes H-1B workers plan a job change in advance and have the new employer file the transfer petition to coincide with the October 1st date. This helps ensure you can switch companies without any gap in your H-1B status.
Can you transfer H-1B to a new employer before October 1st?
No, you cannot transfer before the start date listed on your approved H-1B petition, which would October 1st at the earliest if you were selected in the lottery for that fiscal year.
USCIS will deny any H-1B transfer request for a date earlier than the start date approved by USCIS for your current employer. You must continue working for your current employer until the transfer petition submitted by the new employer is approved.
What are the requirements for an H-1B transfer?
To successfully transfer your H-1B visa to a new employer, the following conditions must be met:
- You have an unexpired H-1B visa status.
- The new job is in the same specialty occupation category as your approved H-1B petition.
- The new employer files a petition and it is approved by USCIS.
As long as your current H-1B visa remains valid, you have significant flexibility to transfer employers. The occupation category can remain the same – for example software engineer to software engineer – without issue.
Can I transfer my H-1B to a new employer after I-140 approval?
Yes, you can transfer your H-1B to a new employer even after your I-140 immigrant petition has been approved by USCIS. The I-140 gives you eligibility to apply for a green card, but does not restrict your ability to change employers.
Here are some key points about transferring after I-140 approval:
- You maintain the priority date of your approved I-140 even after transferring H-1B employers.
- The new employer does not need to file a new I-140 petition for you. They can attach a copy of the approved I-140 with the H-1B transfer petition.
- If your I-140 was approved within the last 6 months, you get a 1-year extension of your H-1B status when transferring.
In summary, you do not lose any green card benefits when you transfer to a new H-1B employer after I-140 approval. Your priority date, underlying labor certification, and eligibility to apply for adjustment of status all remain intact.
Can I transfer after switching to H4 status?
If you changed from H-1B status to H-4 dependent status, you can still transfer your old H-1B to a new employer without going through the lottery again. However, there is a specific sequence of steps to follow:
- New employer files H-1B transfer petition while you are still in H4 status.
- Once approved, you can travel abroad and apply for a new H-1B visa.
- Re-enter the U.S. in H-1B status and start work for the new employer.
You cannot change from H-4 back to H-1B status within the United States. Travel abroad is required to convert visa status once the transfer petition is approved. Planning in advance and allowing time for visa appointments is important when transferring after a change to H-4.
When is H-1B transfer not possible?
In certain situations, it may not be possible to transfer your approved H-1B petition to a new employer:
- H-1B expires soon – If there is less than 60 days left on your current H-1B validity when the transfer petition is filed, USCIS may deny it.
- Change in job role – The new job must be in the same occupation category as your approved H-1B. Significantly differing roles could lead to denial.
- H-1B cap exemptions – If your current H-1B was cap-exempt (e.g. non-profit), the new job must also qualify for the cap exemption.
- Termination for cause – If you were terminated for cause by your current employer, USCIS can deny a transfer petition.
Consult an immigration attorney if your situation involves any of the above scenarios to determine your options before proceeding with an H-1B transfer.
Can I transfer my H-1B while my extension is pending?
USCIS allows transfer petitions to be filed, and in some cases approved, while an H-1B extension application is still pending with your current employer. However, actual employment with the new employer can only begin once the extension is approved.
For example, your current H-1B is valid until Jan 15, 2024 and your employer filed for a 3-year extension in April 2023. While the extension is pending:
- New employer files H-1B transfer petition in October 2023
- Transfer petition is approved in December 2023, but new employment can only start after Jan 15, 2024
- Once your H-1B extension is approved, you can start working for the new employer
So in summary – the transfer petition can be approved before the extension, but actual employment start date will be contingent on the extension approval.
Do I need to notify USCIS if I transfer H-1B employers?
There is no requirement to proactively notify USCIS if you plan to transfer your H-1B employment. The new employer handles the entire transfer process on your behalf.
However, it is recommended that you notify your current H-1B employer before making the switch. Once the new transfer petition is approved, you should provide the approval notice to your current employer as your notification of leaving the job.
USCIS may find out about the H-1B transfer if they contact your previous employer for verification. But you are not obligated to directly notify immigration authorities about the transfer.
Can I transfer my H-1B while working remotely from home country?
If you are working remotely for your current H-1B employer from your home country due to COVID travel restrictions, you can still transfer to a new H-1B employer in the United States.
When the new petition is approved, you can apply for the H-1B visa during an appointment at the U.S. consulate in your home country. Once the visa is issued, you can return to the U.S. and start working for the new employer.
Those already in the United States can start employment for the new employer as soon as the H-1B transfer is approved, even if they were temporarily working remotely overseas for the old employer.
Transferring from F-1 OPT to H-1B after the lottery
International students in F-1 status working on OPT can transfer to H-1B status with a new employer after the lottery. Here is an overview of the process:
- Employer files H-1B petition prior to lottery and includes your OPT work authorization as proof of status.
- Petition gets selected in lottery and approved for Oct 1 start date.
- Employer files H-1B transfer petition while you are still on OPT.
- Once the transfer is approved, your status changes from F-1 OPT to H-1B on October 1st.
You are allowed to continue working on OPT for your current employer after October 1st until the H-1B transfer petition is approved. The new employer can file the transfer petition even while your OPT EAD card remains valid.
Transferring from L-1 to H-1B after the lottery
Employees working on L-1 intracompany transferee visas can also switch to H-1B status with a new employer. The process is similar:
- New employer files H-1B petition and you provide L-1 approval notice as proof of status.
- Petition is selected and approved for October 1 start date.
- Employer requests H-1B transfer while you are still in L-1 status.
- Once approved, you switch from L-1 to H-1B status on October 1.
As long as your L-1 validity continues past October 1, you can remain working on your L-1 until the H-1B transfer petition gets approved. You then switch over to H-1B status with the new employer on October 1.
Does transferring H-1B impact green card priority date?
No, transferring H-1B employers does not impact your priority date for green card processing purposes. Here’s why:
- Priority date is established upon approval of the PERM labor certification or I-140 petition (whichever is earlier).
- This approval date remains your priority date for your green card process going forward.
- The date does not change or get impacted when you later switch H-1B employers.
As long as you file your green card application while your PERM or I-140 approval remains valid, you lock in the original priority date regardless of H-1B employer changes.
Maintaining priority date after I-140 approval
As mentioned earlier, once you have an approved I-140 you can retain access to that petition when transferring H-1B employers. This allows you to keep the underlying priority date as well.
Your new employer simply needs to reference the approved I-140 in the H-1B transfer application. As long as it has not been revoked, that original I-140 approval and priority date remain intact.
Do I need to get a new H-1B visa when transferring?
You do not need to obtain a new H-1B visa stamp in your passport when transferring employers within the United States. Your existing visa remains valid until its expiration date.
However, if you plan to travel internationally and re-enter the U.S. after the transfer, you will need to carry the new H-1B approval notice and get a visa stamp from the consulate abroad. The new visa will reflect the updated employer name and information.
How long can you stay in the U.S. after H-1B transfer approval?
Once your H-1B transfer petition is approved, you can remain in the United States for the duration of your approved validity period, which is typically 3 years at a time.
Your authorized stay is based on the validity dates listed on your new H-1B approval notice. You do not have to leave the U.S. after the transfer until your current H-1B status expires.
Does H4 status get transferred when H-1B transfers?
No, your spouse or child do not automatically get their H-4 statuses transferred when you switch H-1B employers. The new employer must proactively file for a new H-4 petition on their behalf.
In most cases, the H4 transfer applications are filed concurrently along with the primary H-1B worker’s transfer petition. This ensures continuous authorization for dependents to remain in the U.S.
If the new employer does not file for H-4 transfers, your dependents risk falling out of status once your old H-1B (and their linked H-4s) expires.
Can I expedite my H-1B transfer application?
USCIS allows expedited processing of H-1B transfers in limited circumstances such as:
- Severe financial loss to the employer if you cannot start working sooner
- Emergencies such as the loss of a current employee making you fill the gap
- Urgent situations that impact the welfare of others relying on you
- Humanitarian reasons such as significant medical conditions
The employer must submit a detailed expedite request letter justifying the extraordinary circumstances when filing the H-1B transfer petition. USCIS reviews the evidence submitted and makes a discretionary decision on whether expedited processing can be granted.
Conclusion
In summary, it is entirely possible to transfer your H-1B status to a new employer after getting picked in the lottery. As long as your current H-1B petition remains valid, the new employer can file a transfer application and you can switch jobs upon approval.
Advanced planning is recommended when transferring H-1B employers to ensure you avoid any lapses and gaps in work authorization. Consulting an experienced immigration attorney can also help make the process smoother and minimize complications when changing jobs on H-1B.
The ability to freely transfer between H-1B employers provides flexibility to skilled foreign workers. However, it is important to comply with all regulatory requirements around H-1B transfers to maintain legal status in the United States.
