Individuals in the country on a non-immigrant H-1B worker visa may be able to transfer to a new employer after working for another, but both the H-1B visa holder and the new employer must meet all the requirements in place for H-1B visas to facilitate the transfer.
For assistance with an H-1B transfer or other immigration matters in Chicago, turn to the attorneys here at Cho Immigration Law, and call our offices at 312-853-3088.
How Can H-1B Workers Change Employers While Working in Chicago?
The H-1B visa is one of the key means for non-immigrant workers to gain lawful employment in the U.S. through a specialty occupation. According to the Pew Research Center, one recent year saw the approval of nearly 400,000 H-1B applications, with the majority of those pertaining to renewed employment.
Under the American Competitiveness in the 21st Century Act, or AC21, workers with H-1B visas may be able to transfer their jobs to new employers if those employers file an H-1B transfer petition on the worker’s behalf.
This provision allows non-immigrant workers to immediately begin working for the new employer after the filing of the petition while maintaining lawful status in the U.S. throughout the transfer. Additionally, there is currently no limit on the number of employers that the visa holder can transfer to, as long as their H-1B visa remains valid.
What Is the H-1B Transfer Process for Chicago Employers?
To change an H-1B employer, the process involves several steps to ensure a smooth transfer. These steps entail:
1. Receiving a Job Offer From a New Employer
While working at your current job, the new prospective employer must make a job offer involving a position that matches your particular specialty occupation. Typically, the job requires employees to have a bachelor’s degree in a field directly related to the open position.
2. Filing an LCA
The new employer will file a Labor Condition Application (LCA) through the Department of Labor. This document will indicate that the employer intends to pay a wage similar to that of other employees in the same occupation in the same geographic area.
The LCA will also establish that hiring the H-1B visa holder won’t have a negative impact on U.S. workers, and that there is no lockout or strike occurring at the time of hiring.
Also, employers must notify the filing of the LCA to the company’s existing employees.
3. Filing the H-1B Transfer Petition
The Department of Labor may then certify the LCA, at which point the employer must file Form I-129, Petition for Nonimmigrant Worker, with U.S. Citizenship and Immigration Services (USCIS).
To support this document, the worker and employer will need to submit additional documentation, such as:
- Proof of valid H-1B status
- Proof of qualifications for the specialty occupation
- Evidence of the occupation and expertise
- The certified LCA
- All relevant filing fees
An experienced employment immigration lawyer can help collect and organize all supporting documentation to keep the process smooth and increase the chances of the approval of the transfer petition.
4. Starting Work With the New Employer
Once USCIS receives the transfer petition from your new employer, you may start work. The receipt notice in these cases serves as proof of employment qualification, enabling you to begin your new job even as you await USCIS’s approval of the transfer petition.
5. Awaiting Approval
You may continue working until USCIS approves the petition. An approved petition will provide you with more security.
The approval process for H-1B visas typically ranges from three to six months, with potential delays in processing. However, you may be able to expedite the approval process by paying a fee for Premium Processing, which could enable you to get approval within a month of applying.
What Risks and Compliance Issues Arise When Changing H-1B Employers?
There are challenges immigrants face when transferring employment on an H-1B visa.
These risks include:
Transfer Denials
While you may begin working as soon as your new employer files the H-1B transfer petition, there is no guarantee that USCIS will approve the petition.
If USCIS denies the petition, you may need to continue working for your current employer if you are still at your original job. Another alternative is to seek another employer to file an H-1B transfer petition.
You may also apply for an adjustment of status to remain in the country on another type of visa if you qualify.
If you are unable to find any alternative, you may need to depart the U.S. to avoid facing removal and deportation.
Issues With Traveling
If you plan to travel internationally while your transfer petition is still undergoing processing, you may run into certain compliance issues, depending on the nature of your travels and the countries you intend to visit.
An attorney could help with this aspect as well.
Expiring I-94
Another issue you may face is an expired I-94 document, which indicates the specific dates of arrival and departure and overall ability to legally enter and remain in the U.S. If your I-94 is expired, your H-1B visa will no longer be valid.
How to Increase the Chances of a Successful Transfer in Chicago
Whether you are a worker or employer seeking an H-1B transfer, there are some critical elements to consider to maximize the chances of a successful process.
First, it’s important for workers to maintain documentation proving their continuous legal employment, which could include tax returns, pay stubs, and employment verification letters.
Workers and new employers must also be able to clearly show that the intended role for the employee fits the worker’s classification based on their specialty occupation and expertise, with clear credentials.
Ultimately, one of the best steps to take is to work with a reputable immigration lawyer in Chicago with experience handling H-1B transfer petitions and other employment immigration cases. An attorney could help collect all documentation and keep the transfer process smooth for both workers and employers, mitigating the risk of compliance issues throughout.
Want help with your case? Cho Immigration Law may be able to provide assistance when attempting to transfer employment. Our experienced attorneys can determine your needs and keep the transfer process efficient, or identify another path for workers to take to lawfully work and live in the U.S. Contact us today to connect with one of our lawyers.
FAQs
Can an H-1B worker start a new job in Chicago before the transfer is approved?
In most cases, you will be able to begin your new job without waiting for USCIS to approve your H-1B transfer petition, as long as you file the petition before beginning work, and you have a lawful immigrant status that authorizes employment in the U.S.
What documents are required for an H-1B employer change?
There are several key documents you must have to support your H-1B transfer petition, including:
- Proof of status
- Work authorization
- Qualifications
- Resume/CV
- Proof of employment, including recent pay stubs
- Petition forms
What happens to H-1B status if the transfer petition is denied?
In the event of a denial of your H-1B transfer in Chicago, you may be able to remain in the U.S. until the departure date appearing on your I-94 document. Otherwise, you will have a 60-day grace period if your previous employment agreement resulted in termination, during which time you may find another means to remain in the U.S. lawfully.
