Requirements for H1B Transfer
The h1b transfer (portability) provisions of section 105 of the American Competitiveness in the 21st Century Act (AC21) [INA 214(n)] permits an H1B transfer to a new employer under certain conditions. To transfer, the prospective employment must meet all the requirements of INA § 214(n) including the requirement that the new company file a new h1b transfer petition while the potential worker is in a “period of stay authorized by the Attorney General.” Even when the person’s first I-94 has expired, the h-1b alien may port to a new employer B if a non-frivolous petition of H1b visa status from the first employer A is still pending.
New LCA and H1B Petition
For the H-1b transfer to occur the new employer must first file a Labor Certification Application with the Department of Labor followed by a new H-1B petition on form I-129 for the prospective worker. The H-1B petition must not be frivolous. The I-129 petition is used to ask for classification as H-1B and extension of status for the potential temporary worker.
Even when the employee moves to a new location with the same employer the AAO’s 2015 precedent decision in Matter of Simeio Solutions, require the company to file an amended h1b petition if a new LCA is needed because of a change in the H-1B worker’s place of intended employment.
Transfer while new H1B petition is pending
As soon as the new company files a petition with the USCIS (meaning received), the prospective employee is then authorized to work for the new employer until USCIS approves the new petition. A company is not a new employer if there is a merger or corporate reorganization, and no LCA or new petition is required if there are no material changes regarding work that could affect eligibility for H1 b status.
In the best interest of the H1b worker, it is sometimes advisable to wait until the new H-1B petition is approved before the employee begins employment with the new employer. In this case, the new employer may file an I-907 Request for Premium Processing (filing fee is $1225) to speed up a decision on the petition to 15 calendar days.
To take advantage of the H1b transfer provisions in 2016, the worker must be in the U.S. by lawful admission and must not have engaged in unauthorized employment since that admission. If you have h1b transfer 2016 questions, please consult an immigration lawyer for guidance. Goodin Law P.A. offers immigration legal services in H-1B cases. Call us to schedule a first consultation.