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H-1B VISA TRANSFER

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h1b visa transferTRANSFER H1B VISA TO NEW COMPANY

After receiving an H-1B visa approval, an employee may want to get a second or third H-1B visa, either to work concurrently for a second and third American employer at the same time as working for the first employer, or to work for a different American employer completely.

The process of getting additional H-1B visas is, in most cases, the same as getting the first H-1B visa.

How Do I Transfer My H-1B Visa?

The word “transfer” is misleading.  Each american employer is required to submit a new H-1B application (and fees) to get an H-1B visa for every employee, whether the employee already has an H-1B visa or not.  The H-1B visa paperwork and fees (in most cases) are essentially the same for every H-1B visa application – whether it is the first one or the second one or the third one.

When thinking about getting a second H-1B visa, the first thing to determine is whether the American employer that submitted the first H-1B visa you were granted was a “cap exempt” or “cap subject” employer.

How Do I Figure Out if My Current H-1B is “Cap Exempt” or Cap Subject?” Why Does It Matter?

You were supposed to receive a complete copy of your first H-1B visa petition from the person who prepared it, and it should contain Form I-129 Petition for NonImmigrant Worker,  Look at pages 18 and 19 for the Numerical Limitation Information.  If question 1D on page 18 is marked “cap exempt,” your H-1B visa was probably considered “cap exempt” and therefore your H-1B visa petition was not counted against the H-1B visa cap.

h1b visa transferWhat is the H-1B Visa Cap?

There are only 85,000 H-1B visas issued each year on October 1st.  The reason it is called an H-1B visa “cap” is because of this annual numerical limitation which is also called a “cap.”

Each year the demand for H-1B visas is different.  85,000 sounds like a lot of H-1B visas, but America is large and sometimes the American government runs out of H-1B visas in 6 months, sometimes in 1 month and sometimes even in 1 day.

If the first H-1b visa was not subject to be counted under the H-1B visa cap, the second H-1B visa may have to be counted – if the second American employer is not a “cap exempt” employer. If a second H-1B visa is going to be “cap subject” (meaning it has to be counted under the H-1B visa cap) it is best to submit the H-1B visa petition on April 1st  because we are allowed to submit them 6 months early (starting on April 1) to reserve an H-1B visa for employees when they are released on October 1st.

Once an employee’s H-1B visa has been counted under the cap, they don’t have to worry about it again during the six years allowed in H-1B visa status. They can work for either”cap exempt”or “cap subject” employers because they were already counted under the H-1B visa cap.

How Do I Figure Out if an American Employer is “Cap Exempt” or “Cap Subject?”

That is a complicated question and best explained by the government’s website.

What if I Want to Transfer from a “Cap Exempt” to a “Cap Subject” H-1B Visa Employer?

Due to the numerical limitation of H-1B visas, and the fact that they are only released every year on October 1, sometimes it is very tricky to switch from an H-1B that was not counted under the cap to an H-1B visa that will be counted under the cap.

For example, many internships are for employers that are “cap exempt” and they end in July each year.  In order to apply for a “cap subject” H-1B visa, an application would have to be submitted on April 1st.

However, even though it may be approved, it won’t be effective until the H-1B visas are released (October 1st).  In order to avoid leaving the USA, many H-1B visa holders apply for a B2 tourist visa to “bridge the gap” between July when the internship ends and October when the “cap subject” H-1B visa is released.

What Does “Portability” Mean? How Does it Impact an H-1B Visa Transfer?

h1b visa transferIn the past, it could take a new employer 4-6 months to bring an H-1B employee working for another company on board. However, a provision in a law called “AC21″ allows the H-1B visa employee to “port” (which means change employers) as soon as the new H-1B visa petition is received by  the government, rather than waiting for the approval notice.

What if I Have “Ported” and My New H-1B Visa Petition is Denied?

An H-1B visa worker who is employed by a “cap exempt” employer may also switch from that “cap exempt” employer to a “cap subject” employer upon filing of a new H-1B visa.  However, if it is a year where the H-1B visas run out, if the H-1b visa petition is rejected the work authorization for the new employer under 214(n) would cease.

Concurrent Employment Exception

One exception to the requirment of a “cap subject” employer having to be counted under the H-1B visa cap is “concurrent” H-1B visa employment.  When an H-1B visa holder is holding a “cap exempt” H-1B visa, they are allowed to hold a “concurrent” H-1B visa to work for a “cap subject” employer without having to worry about being counted under the cap — so long as they continue to keep working for the “cap exempt” employer.

What If I have My First H-1B With a “Cap Exempt” Employer and a Concurrent H-1B with Another Employer That is “Cap Subject?

Normally when you have two concurrent H-1B visas and you lose one of the jobs, you can keep working at one of them and continue to maintain lawful H-1B visa status.

You can also increase your hours from part time to full time at the same hourly rate.  An upward adjustment in hours in the same job at the same location is normally considered a “non material” change which does not require a new H-1B visa petition.

Photography by Blue Horizon StudiosHowever, if the first H-1B visa is for a “cap exempt” employer and the second one was for a “cap subject” employer, you cannot keep working for the “cap subject” employer if you stop working for the “cap exempt” employer.

In other words, the concurrent  “cap subject” H-1B is allowed only because the “cap exempt” H-1B visa is still active.

Questions? Attorney Danielle Nelisse has over 12 years of experience with H1b visa transfers. Email danielle@immigrationworkvisa.com or call (619) 235-8811 at no charge.

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This entry was posted on October 22, 2012 by in H-1B VISA TRANSFER and tagged , , , .

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