H-1B Transfer Guide: Process, Premium Processing, and Common Challenges
What Is an H-1B Transfer?
An H-1B transfer is the process for foreign professionals who are already on H-1B status and want to move to a new U.S. employer. Unlike the regular H-1B lottery season, an H-1B transfer petition is not subject to the annual cap, meaning your prospective employer can file with USCIS at any time. However, applicants must ensure they are not bound by non-compete clauses or employment restrictions, and any unlawful activity in the United States can jeopardize approval.
Employers can choose between regular H-1B transfer processing or premium processing for faster adjudication.
How the H-1B Visa Works
To understand how an H-1B transfer functions, it’s important to review the basics of the H-1B visa.
The H-1B is a temporary work visa reserved for specialty occupations, typically requiring at least a bachelor’s degree or higher. Jobs in STEM fields (science, technology, engineering, mathematics) often have stronger approval rates.
To qualify, a U.S. employer must:
- Offer the foreign professional a valid specialty position.
- File a Labor Condition Application (LCA).
- Submit Form I-129 to USCIS.
If the employer is cap-subject, the petition must be filed during the H-1B lottery (April) and, if selected, employment can begin no earlier than October 1. If the employer is cap-exempt, petitions may be filed year-round and approved employees may begin working immediately.
H-1B Transfer Background
Under the American Competitiveness in the 21st Century Act (AC21), foreign professionals may request an H-1B transfer provided they have not accrued unlawful presence. The transfer generally requires the same documentation as the initial H-1B petition, except that it is not counted against the cap.
Required H-1B Transfer Documents:
- Official job offer letter with salary, title, and signatures.
- Recent pay stubs or employment verification letter.
- Approval notices (I-797, I-94, prior visas).
- Academic records (degrees, diplomas, transcripts).
- Past approval notices, W-2 forms, or tax returns.
- Updated resume.
- Copy of social security card and passport.
One major advantage of H-1B transfers is that there is no limit on how many transfers you can apply for, and multiple petitions can be filed simultaneously.
Cap-Exempt vs. Cap-Subject Transfers
Some individuals mistakenly believe they can bypass the H-1B lottery by transferring from a cap-exempt employer (such as a university or nonprofit) to a cap-subject employer (private company). In reality, this is not allowed unless the individual has already been counted against the H-1B cap in a prior petition.
If you were never counted toward the cap, a transfer to a cap-subject employer requires entering the lottery during the designated filing period, with employment beginning only after October 1 if approved.
H-1B Transfer Premium Processing
To ensure minimal work disruption, many employers opt for premium processing.
- You must still be employed in valid H-1B status on the date the transfer is filed.
- Employment with the new employer may begin as soon as USCIS receives the transfer petition.
- If there is a gap in employment, premium processing is highly recommended to reduce risk.
Filing Premium Processing (Form I-907)
To request premium processing, the employer (or immigration attorney at Green Card Link) must file Form I-907 along with Form I-129 or separately if the petition is already pending. The form must be submitted to the USCIS service center handling the I-129 petition, accompanied by the receipt notice. Filing at the wrong service center will result in rejection.
Processing Times & Fees
- Regular H-1B Transfer: 1 to 4 months.
- Premium Processing: 15 calendar days.
H-1B Transfer Filing Fees (Approximate):
- I-129 filing fee: $780
- ACWIA training fee: $750 (employers with <25 employees) or $1,500 (employers with 25+)
- Fraud prevention fee: $500
- Premium processing fee: $2,850
- Immigration attorney fees vary depending on complexity (consult immigration attorneys at Green Card Link for a case-specific assessment).
Refund Policy for Premium Processing
USCIS rarely provides refunds. However, if premium processing fails to adjudicate within 15 calendar days, USCIS will refund the premium fee while continuing to process the petition normally.
Work With Trusted Immigration Attorneys
Navigating H-1B transfers requires strict compliance with USCIS requirements. At Green Card Link, its immigration attorneys can guide employers and employees through the process, ensuring documentation is filed correctly and deadlines are met.
H-1B Transfer RFE: What You Need to Know
If you receive an H-1B Transfer Request for Evidence (RFE), it’s important not to panic. An RFE is simply a notice from USCIS asking for additional documentation before making a final decision on your petition. Many times, this request focuses on providing proof such as:
- Educational degrees and qualifications required for the position
- Evidence of prior work experience
- Employer documentation showing the ability to pay the employee
Common Types of H-1B Transfer RFEs
USCIS typically issues four major categories of RFEs in H-1B transfer cases:
- Employer-Employee Relationship – USCIS may request additional evidence to prove a legitimate employer-employee relationship exists.
- Education and Degree Evaluation – If your degree is from outside the U.S., USCIS may evaluate your institution or require equivalency proof against U.S. degree standards.
- Specialty Occupation Determination – To qualify for H-1B approval, your job must meet the legal definition of a “specialty occupation,” generally requiring at least a bachelor’s degree in a relevant field.
- Financial Documents from New Businesses – RFEs are common for startups and businesses operating for fewer than three years, as USCIS may need proof of financial stability and ability to pay wages.
For a detailed breakdown, you can review H-1B Transfer RFE – The Complete Guide, which explains how immigration attorneys at Green Card Link can assist you throughout this process.
Key Things to Remember
- Once you stop working for your H-1B employer, you are technically no longer in valid H-1B status. Applying quickly for a new H-1B is critical, and premium processing can be a smart choice.
- USCIS may approve a new H-1B but deny the extension of status if there’s a gap in employment, meaning you may need to leave the U.S. for visa stamping before reentry.
- Lack of pay stubs can trigger a finding that you are “out of status,” which can complicate your petition.
- The earliest you can begin working with a new employer is when USCIS receives your I-129 transfer petition. While many start working immediately upon filing, waiting for the receipt notice is safest.
If you’re unsure about timelines or requirements, it’s always best to consult an experienced immigration attorney at Green Card Link.
Understanding the 240-Day Portability Rule
The 240-day rule allows H-1B employees with a pending amendment, extension, or transfer petition to continue working beyond the expiration of their I-94.
- For extensions with the same employer – Work authorization is capped at 240 days. If USCIS denies the petition within that period, employment authorization ends immediately.
- For H-1B transfers to a new employer – If the petition is filed before I-94 expiration, you may continue working even after 240 days, provided the petition remains pending. However, if denied, work authorization ends immediately.
Avoiding H-1B Transfer Petition Denial
Denials can happen for several reasons, including:
- Failure of the employer to meet USCIS sponsorship requirements
- Lack of specialized knowledge by the employee
- Missing or insufficient filing fees
- Weak or absent proof of employer-employee relationship
- Prior immigration law violations
- Employer’s inability to pay prevailing wage
- Petition filed at the wrong service center
USCIS pays close attention to employer control over the employee’s work and the company’s financial ability to pay wages. Including strong evidence in these areas is critical to avoid unnecessary denial.
What Happens if Your H-1B Transfer Is Denied?
Next steps depend on why your petition was denied. Options may include:
- Filing an appeal
- Submitting a motion to reopen or reconsider the case
- Refiling the petition with stronger documentation
Because denial notices sometimes include restrictive factors, consulting immigration attorneys at Green Card Link is essential to evaluate whether an appeal or motion is possible.
Premium Processing FAQs
Can the employee request premium processing?
No. Only the employer (or their immigration attorney at Green Card Link through a properly filed Form G-28) can request premium processing. While the fee may be paid by any party, the beneficiary cannot sign the request.
Is premium processing available for Form I-539?
No. Premium processing is not available for I-539 applications (used for H-4 dependents). Even if filed alongside Form I-129, USCIS cannot process it within 15 days due to required biometrics. However, USCIS typically adjudicates I-539 faster when filed together with I-129.
Why Work With Green Card Link
An H-1B transfer involves technical requirements and strict USCIS scrutiny. Mistakes can cost valuable time, money, and even legal status. At Green Card Link, its immigration attorneys have extensive experience handling H-1B transfer petitions, including premium processing requests. They can guide you through every step, file your petition efficiently, and keep you informed throughout the process.