Changing jobs while on H-1B status is common, but the process involves more than accepting an offer and joining a new company. Both the employee and employer have important responsibilities, and timing matters. An H-1B transfer is not technically a transfer of the existing visa from one company to another. The new employer files a new H-1B petition with USCIS requesting authorization to employ the H-1B worker.
For many employees who have already been counted against the H-1B cap, changing employers does not require entering the annual H-1B lottery again. However, the new petition still needs to meet H-1B requirements.
H-1B Transfer Checklist for Employees
- Review Your Current H-1B Status
Start by checking your latest H-1B approval notice and I-94. Your I-94 is particularly important because it helps establish your authorized period of stay in the United States. If you recently travelled internationally, provide your most recent I-94 rather than relying only on an older H-1B approval notice.
- Gather Your Immigration Documents
Your new employer or immigration attorney will typically need documents that establish your immigration history and qualifications.
Be prepared to provide:
- Current passport
- Most recent I-94
- Current and previous H-1B approval notices
- H-1B visa stamp, if applicable
- Recent pay statements
- Resume or CV
- Degree certificates and transcripts
- Credential evaluation, if applicable
- Previous immigration documentation
Recent pay statements can be particularly important because they may help demonstrate that you have been maintaining H-1B status with your current employer.
- Tell Your Attorney About Recent Travel or Employment Changes
Do not leave out a recent international trip, layoff, unpaid period, work-location change, or gap in payroll because it seems unimportant. These facts can affect how the new H-1B petition should be prepared. It is much easier to address a potential issue before filing than to explain it after USCIS raises a question.
- Review Any Pending Green Card Process
If your current employer has started a PERM labor certification or filed an I-140 petition for you, discuss the impact of changing employers before resigning. An H-1B transfer and an employment based green card case are separate processes. Depending on the stage of your case, changing employers can affect your permanent residence strategy.
H-1B Transfer Checklist for Employers
- Confirm the Position Qualifies for H-1B Classification
A job title alone does not establish H-1B eligibility. The employer should clearly identify the employee’s actual duties, position requirements, educational requirements, and how the employee’s background qualifies them for the role. This becomes particularly important when the new position is significantly different from the employee’s previous H-1B role.
- Confirm Salary and Work Location
The employer should establish where the employee will actually work – at the company office, remotely, under a hybrid arrangement, or at another worksite. Work location matters because it can affect the Labor Condition Application (LCA) and applicable wage requirements.
Remote work should therefore be discussed during H-1B preparation, not treated simply as an internal HR arrangement.
- Obtain a Certified Labor Condition Application
Before filing the H-1B petition, the new employer generally needs to obtain a certified LCA from the U.S. Department of Labor.
The LCA includes employer attestations concerning wages and working conditions. Employers must also comply with applicable notice and public access file requirements.
- Prepare and File the H-1B Petition
Once the required documentation and certified LCA are ready, the employer files Form I-129 and the supporting H-1B documentation with USCIS.
The filing typically includes evidence concerning the employer, offered position, employee’s qualifications, work location, wage, immigration history, and employment relationship.
When Can You Start Working for the New Employer?
One of the biggest questions that employees have is whether they must wait for H-1B transfer approval before starting the new job.
Under H-1B portability provisions, certain eligible H-1B workers may begin working for the new employer after the new employer properly files a qualifying H-1B petition with USCIS.
However, eligibility for portability should be confirmed before starting employment.
There is also a practical risk to consider. Filing an H-1B petition does not guarantee approval. USCIS may issue a Request for Evidence (RFE) or deny the petition.
For this reason, some employees prefer to wait for approval before resigning from their existing position, even when they may qualify to start earlier under portability rules.
What If You Were Recently Laid Off?
Eligible H-1B workers may have a discretionary grace period of up to 60 consecutive calendar days following termination of employment, or until the end of their authorized validity period, whichever is shorter.
If you have been laid off and are considering another H-1B employer, begin the process as early as possible. Waiting until the end of the grace period can leave very little time to address unexpected immigration or filing issues.
Common H-1B Transfer Mistakes
Some of the most avoidable problems happen because employees or employers move too quickly.
Watch for these common mistakes:
- Resigning before confirming that the new petition has been filed
- Assuming a previous H-1B approval guarantees the new petition
- Ignoring the employee’s I-94 expiration date
- Failing to provide recent pay statements
- Not disclosing recent international travel
- Overlooking remote or hybrid work locations
- Forgetting to review H-4 dependent status
- Changing employers without considering a pending green card case
Before Changing H-1B Employers
A straightforward H-1B transfer can move smoothly when the employee’s status, documents, position, wage, work location, and filing strategy are reviewed before the job change occurs.
For employees, the goal is not simply to start working for a new company—it is to make the transition without unnecessarily putting immigration status or long-term plans at risk. For employers, careful preparation helps avoid delays and compliance problems while creating a more predictable onboarding process.
If you are planning an H-1B employer change or hiring an employee who currently holds H-1B status, VisaWolf can help evaluate the case, prepare the H-1B petition, and identify potential issues before filing. Contact us
