Navigating H-1B Transfer Before Approval: What You Need to Know

Many professionals with H-1B visa status may encounter the scenario of wanting to transfer employment before their petition is approved. However, is this advisable? In this article, we will delve into the details of why you should wait for H-1B approval before considering any transfer, as well as the potential consequences of acting too hastily. This is especially crucial for those working in the United States and seeking a smoother transition in their employment.

The Importance of Waiting for H-1B Approval

The H-1B visa process is rigorous and typically spans several months. To ensure a smooth and legal transition, it is essential to wait for the approval of your H-1B petition before authorizing a transfer of employment. Employers often take several steps to secure the H-1B visa for their employees, including:

Filing the petition with the United States Citizenship and Immigration Services (USCIS) Responding to any requests for evidence (RFE) from the USCIS Paying the required fees, which can range from $460 to $2200 Waiting for the petition to undergo thorough review and approval

If you transfer before the H-1B petition is approved, you risk putting your status in jeopardy. Employers can rescind the petition if they feel that the terms of the transfer are not beneficial to them or the employee. Rushing your decision could result in the following negative outcomes:

You may lose your currently approved H-1B visa due to the employer's actions The distrust and suspicion between the employer and employee may increase, making future H-1B transfer requests more difficult Your employer may be hesitant to assist you in any future visa applications

Understanding the H-1B Lottery and Its Impact

Since 2015, the H-1B lottery system has been in place, which greatly affects the approach to obtaining an H-1B visa. In this system, the USCIS randomly selects 85% of the H-1B petitions from the pool of employers who have entered the lottery. This means that many H-1B applicants must wait through a lengthy and uncertain process before their petitions are processed.

Employers who wish to hire a new H-1B employee often invest significant resources in the application process. This can include:

Legal fees and consulting fees, which can range from $2,000 to $5,000 or more The time and effort required to prepare and submit the necessary documentation to the USCIS The potential rejection of other candidates in favor of securing your H-1B visa

Given this, it is not advisable to transfer employment before the petition is approved, as this can lead to:

The potential loss of the H-1B petition, along with the financial investment The employer's loss of trust, which can result in future complications The employee's ability to work for a new employer within the same fiscal year

The Legal Perspective: Why Hasty Decisions Are Unwise

While this article is not intended to provide legal advice, it is important to understand the potential legal ramifications of transferring your H-1B status prematurely. In many cases, an H-1B transfer before approval can be seen as a breach of trust by the employer, who may reconsider their willingness to support similar requests in the future.

Employers who spend time and resources on securing H-1B petitions often consider:

Their investment in the employee's potential contribution to the company Their trust in the employee's reliability and commitment to the organization Their future security and ability to continue supporting employees through the H-1B application process

From a legal standpoint, transferring status without proper authorization can also lead to:

Legal issues with future employment Problems with work authorization in the United States Potential fines or penalties on both the employer and the employee

Conclusion

In conclusion, it is crucial to wait for your H-1B visa petition to be approved before making any employment transfer decisions. This ensures a legal and smooth transition, protects your rights, and maintains trust between you and your employer. By understanding the H-1B lottery system and the potential consequences of premature transfers, you can make informed decisions that will benefit both parties involved.