1. What Is an H-1b Transfer?
An H-1B Transfer is technically a new non-immigrant petition filed by a prospective employer on behalf of a foreign national who has already been counted against the H-1B cap.
The term "transfer" is a colloquialism; from a legal perspective, the new employer must file a completely independent Form I-129 petition with the U.S. Citizenship and Immigration Services (USCIS).
Cap-Exemption and Global Talent Mobility
The primary advantage of an H-1B Transfer is that it is Cap-Exempt. Because the beneficiary was already selected in a previous H-1B lottery and has worked in H-1B status within the last six years, the new employer does not need to wait for the annual March registration period. This allows companies to recruit top-tier global talent at any time of the year, provided the employee has remaining time on their six-year maximum stay. At SJKP LLP, we strategically analyze the beneficiary's prior H-1B approvals to ensure that the transfer petition accurately captures all "recapturable" time spent outside the U.S., maximizing the duration of the new employment authorization.
2. Who Is Eligible for an H-1b Transfer?
Eligibility for an H-1B Transfer requires the confluence of a valid job offer in a specialty occupation and the continuous maintenance of legal H-1B status by the beneficiary.
USCIS meticulously reviews the transition period between employers to ensure there has been no unauthorized gap in employment.
Maintaining Valid H-1b Status
To qualify for a smooth transfer, the beneficiary must typically provide:
- Recent Paystubs: Usually the last two or three consecutive pay statements from the current employer as evidence of active status.
- Prior I-797 Approval Notices: Documentation of all previous H-1B periods to track the six-year limit.
- Valid I-94 Record: Proof of lawful admission and the current expiration date of the authorized stay.
The 60-Day Grace Period in 2026
Under current regulations, H-1B workers whose employment is terminated prematurely are eligible for a discretionary 60-day grace period (or until the end of their I-94 validity, whichever is shorter). While this provides a window for an H-1B employer change, 2026 enforcement trends show that USCIS is increasingly scrutinizing filings made deep into the grace period. We advise our clients to initiate the transfer petition as early as possible within this window to avoid "Maintenance of Status" Requests for Evidence (RFEs) that could jeopardize the portability of the visa.
3. H-1b Transfer Process and Timeline
The H-1B Transfer process is a multi-phased regulatory sequence involving the Department of Labor (DOL) and USCIS, requiring synchronized action between the new employer's HR department and legal counsel.
Phase 1: Labor Condition Application (Lca) Filing
Before filing the I-129 petition, the new employer must obtain a certified Labor Condition Application (LCA) from the DOL. This involves:
- Prevailing Wage Determination: Ensuring the offered salary meets or exceeds the DOL-mandated wage for the specific geographic area and occupation.
- Posting Notice: Providing notice to the existing workforce that an H-1B worker is being hired.
- LCA Certification: Typically taking 7 to 10 business days.
Phase 2: I-129 Petition Submission
Once the LCA is certified, the H-1B Transfer Process moves to the filing of Form I-129 with USCIS. This petition includes a comprehensive support letter detailing how the position qualifies as a "Specialty Occupation" and proving that the beneficiary possesses the required degree and skills.
Timeline and Premium Processing in 2026
For many professionals, the H-1B Transfer Timeline is the most critical variable. Regular processing can take several months, which is often untenable for fast-moving industries.
- Premium Processing: For a fee of $2,805 (as of the March 1, 2026 inflation adjustment), USCIS guarantees a response within 15 calendar days. We highly recommend Premium Processing for transfers to provide immediate certainty for both the hiring manager and the employee.
4. When Can You Start Working for the New Employer?
One of the most powerful features of the H-1B program is the Portability Rule, which allows beneficiaries to begin working for a new employer before the transfer petition is officially approved.
The Ac21 Portability Rule
Under the American Competitiveness in the Twenty-first Century Act (AC21), an H-1B holder can commence employment with the new sponsoring entity as soon as USCIS issues a Receipt Notice for a non-frivolous I-129 petition. This is known as "Portability."
- No Wait for Approval: You do not need to wait for the final I-797 Approval Notice to start your new role.
- Receipt-Based Employment: The I-9 employment eligibility verification is completed using the Receipt Notice and the prior I-94 record, with an annotation of "AC-21" to signify the legal basis for the work authorization.
Strategic Risk Note: While starting upon receipt is legally permitted, it carries a "bridging risk." If the new petition is eventually denied, the work authorization terminates immediately, and the employee may find themselves "out of status" if their previous H-1B has already been withdrawn. We perform a rigorous "Pre-Filing Merit Review" to ensure that the petition is robust enough to minimize the risk of a denial after employment has commenced.
5. Employer Responsibilities and Compliance Risks
For the hiring entity, an H-1B Transfer represents a significant regulatory commitment that requires ongoing maintenance of the Public Access File (PAF) and adherence to wage standards.
Specialty Occupation and Wage Level Scrutiny
USCIS in 2026 continues to heavily scrutinize the "Specialty Occupation" requirement. The employer must prove that the position normally requires at least a Bachelor's degree in a specific field. Furthermore, the Wage Level assigned in the LCA must be consistent with the complexity of the duties. Misclassifying a senior role as an "Entry Level" (Level 1) position to save on labor costs is a primary catalyst for an RFE or an audit.
Public Access File (Paf) Compliance
Every H-1B employer is legally required to maintain a Public Access File for each worker, which must be available for inspection by the DOL within one working day of filing the LCA. The PAF must contain:
- A copy of the certified LCA.
- Documentation of the wage to be paid to the H-1B worker.
- An "Actual Wage Memo" explaining how the employer's wage system works for similarly employed workers.
- Proof of the required posting/notice at the worksite.
6. Common Risks in H-1b Transfer Cases
The H-1B Transfer process is fraught with potential "Status Gaps" and procedural traps that can derail an otherwise qualified candidate.
- Pending Amendment Issues: If a previous employer filed an amendment that is still pending, transferring to a third employer requires a "Bridge Filing." These cases are complex and require a meticulous "chain of status" documentation to avoid a denial of the extension of stay.
- Layoff Timing and Withdrawal: If the previous employer withdraws the H-1B petition before the new transfer is filed, the beneficiary may lose their "Portability" rights.
- Worksite Changes: Moving to a worksite outside the "Area of Intended Employment" listed on the LCA requires a new LCA and a subsequent H-1B Amendment. Failing to file this can result in a finding of unauthorized employment.
- Requests for Evidence (RFE): Common RFEs in 2026 focus on "Employer-Employee Relationship" and "Availability of Specialty Occupation Work" for the entire duration of the requested period.
7. H-1b Transfer Vs. Amendment Vs. New Petition
Understanding the distinction between different types of H-1B filings is essential for selecting the correct legal strategy.
Feature | H-1B Transfer | H-1B Amendment | New Cap Petition |
|---|---|---|---|
Purpose | Change to a New Employer | Material change with Same Employer | First-time H-1B status |
Lottery Required? | No (Cap-Exempt) | No | Yes (Cap-Subject) |
Portability? | Yes (Start on Receipt) | N/A | No (Start Oct 1) |
LCA Required? | Yes | Yes | Yes |
8. Why Sjkp Llp Is the Authority in H-1b Transfers
The execution of an H-1B Transfer is a high-stakes legal maneuver that requires a level of tactical expertise and regulatory foresight found only at the highest tiers of immigration practice.
At SJKP LLP, we recognize that your career and your company's growth are on the line. Our firm approaches H-1B matters with a singular focus on the rigorous protection of our clients' legal and commercial interests. We do not simply "fill out forms." Instead, we deploy a sophisticated team of H-1B Transfer Attorneys and strategists to methodically build an unassailable record for every petition.
We recognize that the window for action in employer changes is exceptionally narrow. The moment a job offer is extended or a termination notice is received, the clock begins to tick on your legal status. SJKP LLP provides the decisive legal intervention necessary to manage the momentum of your immigration journey and reach a strategic resolution. We have mastered the complexities of the AC21 portability rules and the procedural intricacies of USCIS and the DOL. SJKP LLP stands as the formidable barrier between your professional future and the unpredictable risks of the U.S. Immigration system.
12 Dec, 2025
