If an employer plans to hire an employee who is currently working for another US employer on a temporary working visa (such as an H-1B visa for highly skilled employees), the existing H-1B visa can be transferred by filing a visa transfer application. Here are some common questions about this process asked by employers and employees:

Q: Should the employer issue a conditional job offer before an H-1B visa transfer is approved?

A: Employers should consider this option.

After interviews, employers often make a verbal offer to the candidate and follow up with a formal offer letter. The candidate’s signature on the offer letter confirms that the candidate has accepted the position and its terms. However, an employer who wishes to hire a worker with an existing H-1B visa should be mindful of the language used in the offer letter. To avoid formalizing the employment relationship before the visa transfer application is approved, employers should consider including a statement that the offer is contingent on an approved H-1B visa transfer application from the U.S. Department of Homeland Security.

Q: Are H-1B visa transfer petitions subject to the regular quota cap?

A: No.

As summarized previously by HR Legalist, the government limits the number of H-1B visas allowed per federal fiscal year (FY). A fiscal year begins on October 1st and ends on September 30th of the following year. Employers subject to the statutory cap, including most for-profit and private companies, must proceed through a computer-generated lottery process each April.  While the H-1B transfer process is generally similar to the initial H-1B application process, there is no annual cap on the number of H-1B visa transfers, and H-1B visa transfers are not counted towards the regular H-1B visa quota cap.  In other words, an employer can petition for visa transfer of a prospective employee at any time during the year.  Since the cap lottery is typically difficult for employers to navigate, this makes transfer petitions an attractive alternative to trying to obtain a brand new H-1B for a worker.

Q: When can the qualifying worker begin work for the new employer?

A: Upon receipt of the petition.

Section 105 of the American Competitiveness in the Twenty-First Century Act (AC21) provides that qualifying workers for whom a petition was filed can begin working for their new employer as soon as the United States Citizenship and Immigration Services (“USCIS”) receives their H-1B visa transfer petition.

Q:  Who pays the relevant application fees and attorneys’ fees?

A: The employer.

By law, employers must pay all fees associated with the H-1B visa transfer process.  These fees are considered business expenses. Candidates and employees should NOT be asked to cover any payments. In addition, the law prohibits employers from deducting attorneys’ fees associated with H-1B visa transfer applications from wages, because attorneys’ fees are also considered business expenses.[1]  Employers cannot require potential employees to pay for or reimburse the employer for attorneys’ fees associated with the preparation and filing of an H-1B transfer application. Optional fees–such as premium processing fees–can be paid by either party depending on the circumstances.

Employers who plan to hire foreign workers, through either a new visa application or a visa transfer, should contact an immigration attorney at the beginning of the recruiting phase to ensure compliance with all applicable laws and regulations. HR Legalist will continue to track updates regarding the process of obtaining working visas to help employers and employees understand the process.

[1] See 20 C.F.R. 655.731(c)(9).

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.


Ivo Becica focuses his practice on advising employers on how to reduce litigation risk and resolve employee issues, and on defending employers in litigation if necessary. He can be reached at 215-667-6335 or ivo.becica@obermayer.com

 

 

 

 

Qiwei Chen is a mandarin-speaking attorney, practicing in the areas of employment law and employment-based immigration matters. She can be reached at 412-288-2476 or Qiwei.Chen@obermayer.com.