3

Currently in OPT (valid till 2020)

Situation:

1) Employer A laid off (April 2018).

2) Employer A applied for H1b and picked in lottery

3) May 2018 Got new job with Employer B.

Question: Is it possible to transfer the H1b from Employer A to Employer B?

  • Has the new employer (B) sent an H1B transfer petition to the USCIS? – Giorgio May 8 '18 at 14:16
  • No they have not sent it. – dukesilver May 8 '18 at 14:50
  • The H1B transfer visa application on your behalf has to be submitted before you can start working for the new employer. – Giorgio May 8 '18 at 16:11
2

Yes, it can be done, as long as requisite steps are taken, in accordance with the USCIS process:

Changing Employers

A nonimmigrant employee can change employers. However, the new employer first must file a labor condition application (e.g., H-1B petitions) or temporary labor certification (e.g., H-2 petitions) and then file a new Form I-129 petition with the approved labor certification. The employee cannot begin working for the new employer until USCIS approves the petition. There are two exceptions to this requirement.

1. H-1B

Under the American Competitiveness Act in the Twenty-First Century (AC-21), an employee currently in H-1B status may begin working for a new employer as soon as the new employer files a Form I-129 petition for the employee, if certain requirements are met. If the employee is not currently in H-1B status, he or she cannot change employers or begin working until USCIS approves the Form I-129 petition.

Form I-9

The new employer must complete a new Form I-9 for this newly hired employee. The H-1B employee may present the Form I-94 indicating H-1B nonimmigrant status issued for employment with the previous employer along with his or her foreign passport as a List A document. The new employer should write “AC-21” and the date he or she submitted the Form I-129 petition to USCIS in the margin of Form I-9 next to Section 2.

To show that the employer filed a petition on the employee’s behalf, it is suggested that the employer retain the following documents with the employee’s existing Form I-9:

  • A copy of the new Form I-129
  • Proof of payment for filing a new Form I-129
  • Evidence that you mailed the new Form I-129 to USCIS

Employers must reverify the employee’s employment authorization in Section 3 once USCIS makes a decision on the petition.

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