Common US Immigration Law Misconceptions: Can H-1Bs Be Transferred?

One way virtually everyone refers to getting a new job is transferring to a new company. It is an all-encompassing phrase that covers everything pertaining to the employee’s new job, including his H-1B if he has one.

Assuming so is a misinterpretation of the country’s immigration laws which can lead to trouble, like being unable to start working because the employer is forbidden by law to employ the new hire.

What Is the H-1B?

To clear up the misunderstanding of the H-1B, it is best to start with learning all about it.

In the country, the H-1B is actually a nonimmigrant visa (NIV).

An NIV is granted to a person living permanently abroad but want to temporarily be in the country to work, do business, undergo medical treatment, study, or have a vacation.

On the other hand, an immigrant visa (IV) is granted to a person who wants to live in the country for good.

The H-1B lets companies located and operating here to hire graduate-level workers in “specialty occupations” that call for technical or theoretical expertise in specialized fields.

What Are the Kinds of Jobs That I Need an H-1B to Be Qualified For?

To be considered a specialty occupation, a job needs to meet at least one of the following criteria:

#1) It requires the employee to have a bachelor’s degree, an advanced (i.e.., higher) degree, or its equivalent as a minimum entry requirement.

#2) Having a degree as one of the minimum entry requirements to be qualified for the job is common practice in the industry, or the job is so complicated or uncommon that only a degree-holder can perform it.

#3) The employer usually requires applicants to have a degree or its equivalent to be considered qualified for the job.

#4) The nature of the duties of the job is so complicated and specialized that the needed know-how to perform them is usually associated with attaining a bachelor’s degree, a higher degree, or its equivalent.

Here are some examples of specialty occupations.

  • Medicine
  • Science
  • Engineering
  • Mathematics
  • Information Technology (IT)
  • Finance
  • Accounting
  • Architecture

 How Do I Know If I Am Eligible for an H-1B?

 To be considered qualified for a specialty occupation, you need to meet at least one of the following criteria:

#1) You need to have completed the required bachelor’s degree or a higher degree from an accredited college or university in the country.

#2) You need to have a foreign degree that is equivalent to the required bachelor’s degree or a higher degree to be considered qualified for the specialty occupation.

#3) You need to have an “unrestricted” state license, registration, or certification that lets you fully practice the specialty occupation and be engaged in it in the state where you intend to be employed.

#4) You need to have had been educated or trained or have experience in the specialty occupation that is equivalent to completing the required bachelor’s degree or a higher degree to be considered qualified for it, as well as be recognized for your expertise in it through the previous jobs you have held that are all directly related to it.

#5) You need to have an employer-employee relationship with your prospective new employer. This is determined by whether it is allowed by law to hire, supervise, pay, or fire you. In short, it has been authorized to have control over your work.

In some cases where the facts show that it has the right to have control over your employment, the company’s sole or majority owner may be able to establish a valid employer-employee relationship between you and the prospective new employer.

The Additional Benefits of Having an H-1B

 There are more benefits from having an H-1B than being qualified to work in a specialty occupation in the country:

#1) The H-1B holder is allowed to simultaneously seek lawful permanent residency for himself and his family, if he has one, and potentially become lawful permanent residents (LPRs).

An LPR is a noncitizen (i.e., a person who is not a national, or inhabitant, of a country) who has been authorized to live and work in the country permanently.

To serve as proof of his status, he is granted a permanent resident card, which is commonly referred to as a “green card.”

#2) The H-1B’s spouse and/or child (or children), who is (or are) under 21 as well as single, are allowed to enter and stay in the country for as long as he is authorized to stay.

#3) The H-1B holder’s spouse and/or child (or children) are also allowed to go to school, either part time or full time, based on their H-4 status.

Having H-4 status means the H-IB holder’s spouse and/or child (or children) have been granted nonimmigrant visas that let them enter the country as his dependents. Being so means they may stay as long as the H-1B holder may stay.

#4) The H-1B holder is allowed to enter and work in a professional capacity in the country for six years, regardless of whether he changes employers then.

#5) The Government imposes no restrictions on how many H-1Bs he may have.

How Can I Get an H-1B?

Those who want to have an H-1B are not allowed to apply for it themselves. Their respective employers need to be the ones to do it for them.

If you are planning to change employers and you already have an H-1B, keep in mind that your H-1B will not actually be “transferred” from your current employer to your prospective new employer after you change jobs.

 No H-1B is transferable from one employer to another.

 Many persons, including some immigration attorneys, mistakenly believe otherwise.

Nothing gets transferred from your current employer to your prospective new employer except yourself.

What actually needs to be done to keep your H-1B status is, your prospective new employer needs to file a new H-1B petition with the United States Citizenship and Immigration Services (USCIS) that shows you changed jobs and that requests for an extension of your status.

To be granted the extension, you are required to present your most recent pay stubs as proof that you were indeed present and working in the country.

What If I Was Not Furnished with Pay Stubs?

If you cannot present your most recent pay stubs because your current employer did not give you any, it unlawfully benched you, or it did not pay you in accordance with the requirements of the H-1B labor condition application (LCA), it may not be possible to prove that you have been maintaining a valid H-1B status. Therefore, it may not be possible to extend it.

But that does not mean you are forbidden from getting another H-1B. You may do so by traveling overseas, applying to work for a prospective new employer, and reentering the country with a new I-94 card.

The I-94 card is actually an electronic record of the arrival in and departure from the country of entering foreign visitors. This is issued to them by a Customs and Border Protection (CBP) officer. It comes in the form of an annotated stamp in their foreign passport. He creates it electronically upon their arrival and issues it to them at their port of entry (POE).

How Does Traveling or Being Overseas Affect My H-1B?

Other instances of being outside of the country concerns H-1B holders as to whether being so affects their status, like:

  • A person had an H-1B petition filed by his prospective new employer for him, but for some reason, he never entered the country or worked for it
  • A person had been in the country as an H-1B professional at some point in time, but he then left to live in a different country

 If an H-1B holder is overseas, his prospective new employer is required to file a new H-1B petition for him. Since the petition is not for an extension of his status, presenting his most recent pay stubs is not required.

Additional Important Things You Need to Consider to Avoid Having Problems

Since nothing is transferred between your current employer and your prospective new employer except yourself when moving from the former to the latter, neither your new prospective employer nor you need permission from your current employer to let you do so.

That said, if you have any contractual obligations with your current employer (e.g., notice and non-compete agreements), not needing to ask for its permission to move to your prospective new employer does not nullify your obligations.

Make sure you can present proper pay records if needed. Lack of these may be a problem for you at the consulate in connection with obtaining your H-1B. Those who lack such records are often H-1B holders who were in the country but were not adhering to the terms of their status.

Contrary to what many people mistakenly believe, getting an H-1B petition approved does not get easier. No matter how many employers you move to, each H-1B petition filed for you needs to be complete as well as fully establishes your eligibility and your prospective new employer’s eligibility and compliance with the requirements of the job you are applying for.

Speaking of multiple H-1Bs, remember that, basically, you are allowed to have many H-1Bs. But know that having several filings can lead to problems.

Say you are still working for your current employer, but you have a pending H-1B petition filed by a prospective new employer (Employer #2), and you would rather work for another prospective new employer (Employer #3).

Issues arise from such a situation where a person has multiple pending H-1B petitions filed that can make keeping track of his status confusing.

One such issue is bridging. To describe this using the same example, if you are counting on the pending H-1B petition filed by Employer #2 to bridge your status that will let you move to Employer #3, the former’s petition needs to be approved so that the petition the latter will need to file gets approved and extends your status. Since there is no guaranteeing this, get legal advice on how to best organize this situation.

But if your status is unbroken, the needed H-1Bs may be approved as extensions with an attached I-94 at the bottom of the notice of approval.

Your new employer’s H-1B petition may be subject to the H-1B cap, or whether an exemption from this applies to yours, based on your previous H-1B(s) that was (or were) approved.

H-1Bs are subject to a cap each fiscal year in the country. This is the 12-month period that ends on September 30th of the current year and begins on October 1st of the previous calendar year (i.e., January 1st to December 31st).

Employers in the country are allowed to begin filing H-1B petitions for their respective prospective employees six months prior to the actual start date of their H-1B. They may do so as soon as April 2nd, 2017, to avoid the cap next year, but this will not take effect until October 1st, 2017.

Under immigration law, a total of 85,000 new H-1Bs is made available each fiscal year, including 65,000 new H-1Bs for overseas workers in specialty occupations who have at least a bachelor’s degree, as well as an additional 20,000 new H-1Bs for the specialty workers holding higher degrees from a US academic institution.

Since the cap has been oversubscribed in recent years, USCIS now holds a lottery for the available H-1Bs.

The H-1B is effective for up to three years at first, but the duration of its effectiveness may then be extended up to six years.

While it is a nonimmigrant visa, the H-1B is among the country’s few visa categories recognized as dual intent. This means an H-1B holder may apply for and obtain a green card while in the country.

If you are still here with an H-1B and you wish to stay longer than six years, you may apply for permanent residency to get a green card.

If you are not granted permanent residency before your H-1B expires, you need to reside outside the country for at least one year before you may reapply.

Obtain a new visa as soon as possible after your H-1B visa stamp expires.

Having learned virtually everything there is to know about the H-1B, while obtaining one for yourself can still be confusing and hard, you now have a significantly better chance at succeeding.