H-1B Transfer Frequently Asked Questions (FAQs)



Porter Law Office, LLC handles complex H-1B services for a diverse client base. We get many questions on the H-1B transfer process. That is, for transferring an H-1B visa from one company to another.

This article addresses frequently asked H1B transfer questions and provides responses based on the immigration rules and regulations. It must be emphasized that your employer should always consult with an experienced immigration lawyer to discuss the details of your specific case before taking any action.

If you have questions regarding the H1B transfer process, contact the experienced immigration lawyer at Porter Law Office, LLC today.

Q: I am currently working for Company A on an H-1B visa. Can I transfer my H1B visa to Company B?

A: You may change employers and “port” from Company A to Company B. The Immigration and Nationality Act (INA) allows this under 214(n) under what is commonly known as an H1B transfer petition. You can “port” and begin working for Company B at the filing of the H1B transfer petition.

Specifically, the rules state that a nonimmigrant alien who was previously issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) is authorized to accept new employment upon the filing by the prospective employer of a new petition on behalf of such nonimmigrant as provided under subsection (a). Employment authorization shall continue for such alien until the new petition is adjudicated. If the new petition is denied, such authorization shall cease.

Q: Before I apply for an H1B transfer with Company B, what do I have to tell my current employer, Company A?

A: While you do not have to obtain permission from Company A, the new company will not be notified by USCIS or the Department of Labor about the H1B transfer, you owe your current employer the courtesy of a two-week notice and the formal job termination procedures.

Q: Once my H1B transfer petition has been approved, how long do I have to join Company B?

A: Technically, there is no time limit. You can join any time during the approval period on your new H1B approval notice (Form I-797). Even if your H1B transfer petition is approved, you can decide to remain with Company A as if you never filed an H1B transfer.

Q: Is there any limit to how many times I can apply for an H1B transfer?

A: No. You can apply as many times as you want.

Q: Can I apply for an H1B transfer for multiple employers at the same time?

A: Yes.

Q: I have an H1B visa stamp from Company A. I just received an H1B approval notice for Company B. Do I need a new H1B visa stamp in my passport?

A: A common difficulty is understanding the difference between an H1B visa stamp and H1B status. The H1B visa stamp is only necessary to enter the United States. Once you are here, you need to be in valid H1B status to remain in the U.S. to legally live and work.

When you travel, you will need an unexpired H1B visa stamp to return to the U.S. You can use an unexpired H1B visa stamp (even if it is from Company A) to travel back to the U.S. so long as you have a copy of the new H1B approval notice from Company B. If your H1B stamp has expired, you generally need to go to the U.S. consulate in your home country and get a new one to travel back to the U.S.

Q: What kind of evidence do I need for an H1 transfer? Is more evidence required than for a standard H1B cap petition?

A: You need all the evidence that was provided in your H1B cap case, with the following:

• Pay records or payroll summaries and/or W-2s
• Time sheets
• Prior year’s work schedules
• Examples of work product created by employee
• Dated performance reviews
• Employment history records that indicate date of hire, promotions, transfers

Q: I am working for Company A, but assigned to an end-client. May I join the end-client on H1B?

A: That is allowable under the rules if the H1B requirements are met. Be aware of the employment law issues, such as ensuring you are not violating a non-compete provision in your employment agreement.

Q: Can an H1b that was approved and never used be transferred from outside the country?

A: A transfer is nothing but a new H 1b application that is not subject to the cap. If you have proof of prior approval (like the copy of I797 or a receipt num ber), a new em ployer can transfer the H 1b even if you have not entered into the USA.

Q: Can I transfer from Company A to B even after my last approved petition has expired?

A: Yes. Under certain circumstances, you may be able to port from Company A to B even if your I-94 or last approved petition has expired. In order to port, however, you must meet all the requirements of INA § 214(n), including the requirement that the new petition be filed while you are in a “period of stay authorized by the Attorney General.” USCIS has previously determined and issued guidance explaining what constitutes a “period of stay authorized by the Attorney General.” One example would be:

Alien is in H-1B status. Employer A timely files a non-frivolous extension of the alien’s H-1B status. Alien’s original petition, approved for Employer A, expires during the pendency of the extension. Alien is then in a “period of stay as authorized by the Attorney General” while Employer A’s extension is pending. Employer B then files new petition and alien wants to port to Employer B. Under INA § 214(n), the alien should be permitted to port because he or she is in a “period of stay as authorized by the Attorney General.”

In other words, porting under INA §214 does not require that the alien currently be in H-1B status as long as he or she is in a “period of stay authorized by the Attorney General.”

Q: I am employed by Company A on an H1b , got a new offer from Company B and filed for a transfer. which is pending. Now I have an offer from Company C that I want to join. Do I have to wait for approval from Company B to transfer to Company C?

A: This situation has been addressed by USCIS, see Yates Memo, page 11 (May 12, 2005). You do not have to wait for approval from Company B to transfer to C.

Q: If successive H-1B portability petitions can be filed, what happens if an alien’s nonimmigrant status expires while the H-1B portability petitions are pending and a petition in the “bridge” is denied?

A: To be approved every H-1B portability petition must separately meet the requirements for H-1B classification and for an extension of stay. In the event that your nonimmigrant status has expired while the petitions are pending, the denial of any filing in the string of extension of stay and/or change of status filings undercuts the “bridge” that “carried” any petition filed after the expiration of any approved status which will result in the denial of the successive requests to extend or change status.

Q: I used to work for Company A and I have an H1B visa that is still current, but I do not work that company any more. I am back in my home country. Will I be allowed to enter the U.S. on that H1B visa to look for employment with another company?

A: No.

Q: Is H1B transfer subject to cap?

A: No.

H-1B Visa Lawyer in Columbus, Ohio

H1B Transfer Representation

The experienced immigration attorney at Columbus, Ohio-based Porter Law Office, LLC helps secure H1B transfer approvals. A specialty occupation is one that requires highly specialized knowledge and skills and a bachelor’s degree or foreign equivalent in a specific field of study. Typical specialty occupations in the H1B visa category include computer systems analysts and programmers, physicians, dentists, professors, engineers and accountants.

If you need assistance with an an H-1B visa or immigration issue that is beyond the scope of this guide, contact the business immigration lawyer at Porter Law Office, LLC in Columbus, Ohio today.