No such thing as an H1B transfer?

There’s no such thing as an H1B transfer.

What?

I am Jim Hacking, immigration attorney practicing law throughout the United States and based here in St. Louis Missouri. We have a lot of visitors through our website and people who send us emails or call the office wanting to know how to transfer their HIB from one employer to another. We also get contacted by employers who want to hire someone who already has an approved HIB. We felt we’d make this video to clear up some of the misconceptions between the whole HIB transfer issue. The reason I put the transfer in air quotes is because there’s not truly a transfer. You’re not transferring anything from one employer to another. What is really happening is a new HIB visa is being applied for.

Why is this important and how does this impact the international worker? Well, you’re probably familiar with HIB lottery. Every year, too many people applied for not enough visa. In 2015, there were 225,000 visa applications for only 85,000 spots. We’re talking now about the cap-subject HIB visa. HIB visas for the most part if you’re working outside of an institution of higher learning, if you’re working for a private employer, you’re going to be subject to the cap. People who make it through the cap and get an approved HIB, they hold something that’s very valuable. Sometimes those people with valid HIB visas want to transfer their job from one employer to another. They want to know if they can bring their HIB visa with them and more importantly do they have to go through the lottery.

That’s the real thing that’s different about someone transferring in. They’ve already made it through the lottery. That spot that they hold transfers with them and that’s why the HIB is very valuable for them. If an employer comes across someone who has an approved HIB and is working for another employer, they can file a new I-129 petition to get a visa for the person. They still have to go through all the processes and paperwork that are attached to an HIB. In many ways, the HIB transfer is a whole new HIB application. The only difference being that they don’t have to go through the lottery. They don’t have to wait until April 1st to apply. They don’t have to wait until October 1st to start.

If you’re going from a cap-subject employer to another cap-subject employer and you’ve already been approved for an HIB, then you’re going to be able to “transfer” that visa from one employer to another. Now one thing to keep in mind is that a lot of times employers who sponsor people for HIBs will have employment contracts. There will be language in the contract that may or may not govern the transfer itself or the leaving of the employee from the first employer to the second employer. You need to be very careful about that and you need to talk to an attorney in your state that can help you interpret the contract that you may have signed associated with your HIB visa. Putting contractual issues to the side for a minute, you do have the ability to take that HIB visa with you.

An HIB transfer is something that has a lot of appeal to employers too because that freeze them up to find workers during the course of the year when they maybe particularly busy. They may need to hire someone in a pinch. If someone has already gone through the process of getting an HIB, then in many ways, they’re way ahead of the game because the employer only has to go through the paperwork of filing. That filing entails filing a whole new LCA with the Department of Labor. That takes about 10 days. Then if the employer is smart and pays for premium processing, they should be able to get all their paperwork through the immigration service in about 3 weeks or so.

We recently had an HIB transfer and the whole thing took altogether about 24 hours, so we are really happy with that. We file a strong application and the paperwork was all done correctly. The process went very smoothly. These are the things that employers need to think about. These are the things employees need to think about. An employer who’s hiring away an HIB, employer should be careful not to tamper with the employment contract. You don’t want to open yourself up to a lawsuit from the first employer. I’m really surprised that there aren’t more problems between initial employers and secondary employers. I think that’s an area that might develop in litigation and might be right for problems.

If you have questions about the HIB transfer process, if you’re concerned about it, feel free to give us a call at 314-961-8200. You can always email us at info@hackinglawpractice.com. If you like this video, do me a favor and subscribe to our videos on the YouTube channel. That way you’ll be updated whenever we shoot a new video. If you like this video, give us a like. We’d really appreciate it and it helps us get out the read to other people who might like to learn about HIB visas, transfer and all the rest of immigration. Thanks a lot and have a great day.