The H-1B visa program allows U.S. employers to temporarily employ foreign workers in specialty occupations. There is an annual cap on the number of H-1B visas issued each fiscal year. When the demand for H-1B visas exceeds the cap, a random lottery is conducted to select the petitions that will be processed. Many H-1B applicants and employers have questions about changing jobs after being selected in the H-1B lottery.
Can you change employers after winning the H-1B lottery?
Yes, it is possible to change employers after being selected in the H-1B lottery, but there are some important factors to consider.
If your petition was selected in the lottery for the upcoming fiscal year, you have until September 30th of that year to activate your H-1B status with an employer. This gives you flexibility to change employers in that period. However, there are a few key things to keep in mind:
- You cannot begin working for the new employer until October 1st when your H-1B status goes into effect.
- The new employer must file a new H-1B petition on your behalf before you can transfer your H-1B status to them.
- There must be a valid employer-employee relationship established with the new employer.
As long as the new employer files a petition and it is approved, you can transfer your H-1B status to the new employer once your status becomes active on October 1st. The new employer does not need to enter the lottery again.
When can you start working for the new employer?
You cannot begin working for the new employer until October 1st when your H-1B status goes into effect for the fiscal year.
When an H-1B petition is selected in the lottery, this basically reserves you a spot to obtain H-1B status beginning in the next fiscal year on October 1st. However, you do not yet have valid H-1B status to work. Your H-1B status only becomes active once the fiscal year begins on October 1st.
This means you cannot start working for a new employer that files a transfer petition until October 1st. You must continue working for your current H-1B employer until the transfer goes into effect on October 1st. Violating these rules can jeopardize your H-1B transfer approval.
Does the new employer have to file an H-1B petition?
Yes, the new employer must file and obtain approval of a new H-1B petition before they can hire you and transfer your H-1B status.
Simply being selected in the lottery does not automatically grant you work authorization. The new employer must file an H-1B petition on your behalf and obtain approval from USCIS before you can begin working for that employer.
The new employer should file a petition as soon as possible after being selected in the lottery to ensure timely approval. You cannot begin employment until USCIS approves the petition filed by the new employer.
Can you transfer between cap-exempt employers?
Yes, you can transfer your H-1B status from one cap-exempt employer to another cap-exempt employer at any time.
Cap-exempt employers include:
- Institutions of higher education
- Non-profit research organizations
- Government research organizations
These types of employers are not subject to the H-1B visa caps. Therefore, if you are currently employed in H-1B status at a cap-exempt employer, you can transfer to another cap-exempt employer at any time. The new employer simply needs to file and obtain approval of a new H-1B petition on your behalf.
When does your H-1B status expire after a transfer?
Your H-1B status expiration date does not change when you transfer to a new employer. It remains tied to the original petition and validity dates.
For example, if your current H-1B status is valid through September 30, 2025 based on the petition filed by your current employer, your expiration date will remain September 30, 2025 after transferring to a new employer.
The new employer can request an extension of your H-1B status as needed in the transfer petition. But unless an extension is requested and approved, your expiration date will remain the same.
Can you transfer H-1B status while changing visa status?
You cannot transfer your H-1B status while also changing to H-1B status from another nonimmigrant status within the U.S.
If you are currently in a status like F-1 or L-1 and want to change to H-1B status with a new employer, you cannot “transfer” H-1B status. The new employer must file a petition requesting a change of status along with the H-1B petition. You must obtain the H-1B status before you can then transfer to another H-1B employer.
What if the new employer withdraws the H-1B petition?
If the new employer withdraws the H-1B transfer petition before it is approved, you will not be authorized to work for that employer. You must continue working for your current H-1B employer.
It is important to have an employment agreement or contract in place with the new employer before they file the transfer petition on your behalf. This helps avoid situations where an employer withdraws the petition leaving you unable to transfer.
If the petition is withdrawn after approval, you would need to stop working for that employer but could try to transfer to another employer instead.
Can you transfer while the H-1B petition is pending?
You are not permitted to transfer or begin working for a new employer while their H-1B transfer petition is still pending.
You can only begin employment once the new employer’s petition is approved. USCIS will deny a transfer petition if you prematurely begin employment with the new employer while the H-1B petition is still pending.
Both you and the new employer could face penalties for violating the terms of the H-1B program if you begin working before the transfer petition is approved.
What if the new employer’s petition is denied?
If the new employer’s H-1B transfer petition is ultimately denied, you cannot work for that employer in H-1B status. However, you can continue working for your current H-1B employer as long as that petition remains valid.
Reasons a transfer petition may be denied include:
- The new employer fails to establish a valid employer-employee relationship
- The new job does not qualify as a specialty occupation
- Issues with requested start date or validity dates
If the transfer petition is denied, you and the new employer can evaluate the reasons for denial and decide whether to appeal the decision.
Do H-1B transfer denials affect your status?
No, the denial of an H-1B transfer petition generally does not impact your underlying H-1B status with your current employer.
As long as your current employer’s H-1B petition remains valid and the employer-employee relationship remains intact, you can continue working for the current employer even if a transfer is denied. The transfer denial alone does not revoke your underlying H-1B status.
However, repeated transfer denials or transfers without the intent to actually work for that employer could potentially raise flags and put your overall H-1B status at risk.
Conclusion
Switching employers after being selected in the H-1B lottery is possible, but requires careful compliance with H-1B transfer rules:
- You cannot begin employment with the new employer until October 1st when your H-1B status takes effect
- The new employer must file and obtain approval of a new H-1B petition on your behalf before you can transfer your status to them
- Your H-1B expiration date does not change upon transferring to a new employer
- You must continue working for your current employer until the new petition is approved
Understanding these limitations and properly filing the H-1B transfer paperwork is key to avoiding disruptions in your H-1B status when changing jobs after the H-1B lottery.
Frequently Asked Questions
Can I transfer my H-1B to a new employer right after being selected in the lottery?
No, you cannot immediately transfer to a new employer after being selected in the H-1B lottery. You must continue working for your current H-1B employer until the new employer’s transfer petition is approved with an effective date of October 1st or later.
What if I want to transfer H-1B employers before October 1st?
Transfers before October 1st are not possible if your current status is only valid through September 30th. Your current employer would need to file an H-1B extension on your behalf to continue employment authorization until the transfer effective date.
Can I transfer H-1B status while I have a pending green card application?
Yes, you can transfer H-1B employers multiple times despite having a pending or approved green card application (PERM, I-140, I-485). Transferring H-1B employers does not impact or invalidate the underlying green card process.
Does the new employer have to file an extension before transferring?
No, the new employer does not have to file an extension. They can transfer you for the remainder of your current validity period and then file extensions later as needed. The priority is filing the transfer petition first.
How soon before October 1st can the new employer file the transfer petition?
The new employer can file the H-1B transfer petition up to 6 months before the effective date of October 1st. Filing early helps ensure timely approval and avoids any disruptions.
Can I transfer H-1B status from the U.S. to abroad?
No, you cannot transfer H-1B status from the U.S. to abroad. You would have to obtain H-1B status afresh from abroad with the new employer’s petition and a new visa stamp.
Does a transfer affect my dependent’s H-4 status?
No, approved H-4 status for dependents remains valid after the principal H-1B holder transfers employers. Dependents do not need to file any additional applications.
Table Comparing H-1B Transfer vs. New Cap-Subject Petition
| Criteria | H-1B Transfer | New Cap-Subject H-1B |
|---|---|---|
| Subject to H-1B lottery | No | Yes |
| Can file 6+ months in advance | Yes | No |
| Need to show specialty occupation | Yes | Yes |
| Need approved labor condition application | Yes | Yes |
| Employer pays USCIS filing fees | Yes | Yes |
This table summarizes some of the key differences between transferring H-1B employment versus having an employer file a new cap-subject H-1B petition. The transfer process provides more flexibility and avoids the uncertainties of the annual H-1B lottery.
The H-1B Transfer Process Step-by-Step
Here is an overview of the typical process for an H-1B transfer:
- Find a new employer willing to sponsor your H-1B status.
- The new employer prepares and files Form I-129 with USCIS requesting to transfer your H-1B status to them.
- Continue working for your current employer while the transfer petition is pending.
- USCIS reviews the transfer petition and notifies you and the employer of approval or denial.
- Once approved, begin working for the new employer on the effective date listed on the petition.
- Current employer withdraws your existing H-1B petition once transfer takes effect.
It is critical to coordinate carefully with both employers during the transition process to ensure compliance with H-1B requirements.
H-1B Transfer Documents Checklist
The employer should submit the following documents for an H-1B transfer petition:
- Form I-129, Petition for a Nonimmigrant Worker
- H-1B Data Collection and Filing Fee Exemption Supplement
- Approved Labor Condition Application (LCA) from the U.S. Department of Labor
- Employer letter supporting the H-1B transfer
- Your resume, educational credentials, and professional licenses
- Previous H-1B approval notices and I-94 records
- Documentation of compensation and benefits
Ensuring the petition includes all required evidence is key to obtaining timely approval of an H-1B transfer.
Conclusions
Transferring H-1B employment provides an important option for skilled foreign workers to change jobs and progress in their careers in the United States. While some restrictions apply, the transfer process enables continued employment authorization without going back into the H-1B lottery. Understanding the timing constraints around an H-1B transfer is essential for both employers and employees seeking to navigate this process smoothly.
With the right preparation and coordination, the H-1B transfer process can generally be completed without disruptions to legal work authorization or to important professional opportunities.