Getting an H-1B skilled-worker visa is like winning the lottery — literally: With the number of new visas issued each year capped at 85,000, most of this year’s over 200,000 applicants face disappointment. But if you’re already working in the United States, then you’ve already won the H-1B lottery, and that makes you a hot commodity.
With H-1Bs in short supply, successful companies frequently poach skilled workers. Everyone knows the tech sector thrives on this free exchange of people and ideas, so if another employer needs your skills, why not start working for them?
Well, not so fast. H-1B holders can work only for the company that originally sponsored their visa application. So if you want to change employers, you’ll need to “transfer” your H-1B.
That process used to be relatively straightforward but not in the Trump era. (Boundless recently underwent this process with an employee, so we understand the pain.) The denial rate for initial H-1B applications spiked over five-fold to 32 percent just in the first quarter of fiscal 2019, up from 6 percent in 2015. Crucially, the Trump administration is targeting “continuing” H-1B applications used by existing employees to either renew their H-1B or switch it to a new employer. Even tech giants like Amazon are now seeing double-digit rejection rates.
The bottom line: The days of getting an H-1B transfer quickly rubber-stamped are long gone, and that makes it vital to do whatever you can to keep the odds in your favor. The stakes are high — if things go south, you could lose your right to live and work in the United States. Here’s what H-1B holders need to know about the right — and wrong — ways to set about switching employers:
Don’t take your transfer for granted.
First, understand that an H-1B “transfer” is actually a brand new visa application, not a simple handover of your existing H-1B visa from one employer to another — there’s no such thing.
That’s good news on some levels: It means you don’t need your current employer’s blessing. And they can’t withhold records or otherwise interfere in the process. But because you’re filing an entirely new H-1B application, rather than simply tweaking your existing visa, there’s a real chance your application could be denied, even though your previous H-1B was approved without a problem. If that happens, your existing H-1B will remain valid — as long as you’re still employed in your original job — so it’s in your best interest to keep your transition plan under wraps from your employer.
Bear in mind that if your new H-1B application is denied and you’ve already quit the job your previous H-1B was based on, you’ll need to leave the United States or change your immigration status within 60 days (typically) or before the expiration date on your I-94, whichever is sooner.
Take the paperwork seriously.
Some 60 percent of H-1B applications are now sent back with Requests for Evidence (RFEs), up from over 13 percent in mid-2015. That means additional delays of at least 60 days — to get a response from the U.S. government after you address the RFE — and potentially thousands of dollars in additional legal costs.
Plus, immigration officers are less forgiving than they used to be: Only about 60 percent of applications that receive RFEs are subsequently approved, down from more than 80 percent in mid-2016. More importantly, they can deny an imperfect application without first sending an RFE. That means it’s more crucial than ever to get things right the first time and supply all the requested information promptly and in full.
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Don’t burn your bridges.
Since you’re technically applying for a new H-1B visa, it’s possible to fire off multiple “transfer” applications in quick succession. That’s helpful if you’re in high demand. If you receive multiple job offers, you can start a new transfer application while another is still pending.
But this process, known as “bridging” applications, isn’t free of risk: As far as U.S. Citizenship and Immigration Services (USCIS) is concerned, when applications are daisy-chained together like this, a denial of one H-1B application becomes grounds to deny all additional such requests if your H-1B status expires while these applications are pending.
There’s no need to limit yourself to a single company, but don’t assume that multiple transfer applications will necessarily improve your odds of success. Bridging can be a useful tool, but it’s complicated and potentially risky, so consult an immigration lawyer to avoid costly mistakes.
Take the fast lane.
If your potential new employer is impatient, deep-pocketed, or both, there’s an available “premium” process to fast-track your transfer. This will set your future employer back $1,410 but will expedite your transfer from around 6 months to just 15 days.
The premium program was suspended for much of last year, raising concerns that USCIS could face a flood of applicants following its reintroduction this spring. So whether or not you take this path, it’s worth filing your paperwork quickly.
Don’t fall through the port-hole.
It’s possible to “port” your H-1B visa and begin working for a new employer as soon as you file your transfer application — you’d just need to submit an I-129 petition, along with your H-1B transfer request. But be careful: If USCIS denies your transfer, your H-1B status could be revoked altogether if your current employer declines to take you back. (That’s another reason to fast-track your transfer.)
Keep in mind that H-1B portability also depends on whether your current and future employers are subject to the H-1B cap. Most private companies are, so you can transfer to either a cap-subject or cap-exempt employer without a problem. You’re just as free to transfer from a cap-exempt employer, such as a higher-education institution, to another cap-exempt employer.
Things get trickier when switching from a cap-exempt to a cap-subject employer. You can’t jump the line, so you’ll have to take your chances with the H-1B lottery. There may be loopholes if you’ve previously worked for a cap-subject employer, though.
Be careful if you’re “benched.”
Some unscrupulous companies keep their H-1B employees on the books without pay when they’re between assignments. This is seen as an abuse of the system and creates headaches for employees. On one hand, you’re probably eager to transfer to an employer who treats you better and provides full-time work. On the other, being “benched” could make it impossible to provide the recent pay stubs USCIS demands as part of a transfer application, leading them to conclude that you’ve fallen out of H-1B status.
If that’s the case, experts frequently suggest renewing one’s H-1B status by traveling abroad and re-entering the United States on a fresh I-94 travel record. Check with an experienced immigration lawyer if this applies to you.
Alternatively, it’s possible to report “benching” to USCIS in return for more favorable treatment. But take caution — this is a discretionary process, and there are no guarantees.
Don’t leave your kids behind.
When changing your H-1B visa, it’s natural to ask whether your spouse, children, or other dependents will also need new visas. The short answer is no — their visas are linked to your H-1B status, not your employer, so you don’t need to transfer them in the same way. It’s possible to resubmit H-4 paperwork on their behalf to ensure that they receive visas with the same end date as your new H-1B visa, but this is chiefly a matter of convenience and peace of mind for your family.
Don’t forget about green cards.
With H-1B denial rates soaring — and the Trump administration continuing to erode the skilled-worker visa system — it’s important not to pin your hopes for the future on your H-1B status. If your employer is willing to sponsor you for a green card, or if your spouse is a U.S. citizen or permanent resident, don’t delay: Upgrade to a green card, which will give you far more security and flexibility, and lets you change employers (or even start your own business) without jeopardizing your immigration status.
The bottom line is that while the tech industry thrives on flexibility, the H-1B system is increasingly prone to red tape and aggressive policymaking, and there are real pitfalls awaiting unwary immigrants. If you’re lucky enough to secure an H-1B visa, treat it like the precious commodity that it is, and don’t take any chances with it.
That means getting proper advice from knowledgeable experts and not assuming that your employer understands every nuance of the H-1B system. Because when it comes to your immigration status, there’s nothing worse than beating the H-1B lottery and then losing your winning ticket.