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What do we have to do to transfer a candidate's H-1B visa from his current employer when he begins working for us?

H-1B visas are nonimmigrant visas for persons to work in the United States in specialty positions. A specialty position requires theoretical and practical application of a body of knowledge along with at least a bachelor's degree or its equivalent.

Commonly, H-1B visas are requested by companies for highly skilled information technology workers. However, the visas also are requested for positions in many other fields, such as engineering, mathematics, medicine, law and the arts.

If an employer finds a candidate who is already working in the United States on an H-1B visa, the employer can transfer the candidate's visa from the current employer. U.S. Citizenship and Immigration Services must be notified of any changes in employment status through Form I-129 (H-1B petition).

Employers should be aware that to file the petition for transfer of the nonimmigrant, the following conditions must be met:

  • The nonimmigrant must have lawfully entered the United States.
  • The petition must be for new employment and must be filed before the end of the nonimmigrant's period of authorized stay.
  • The nonimmigrant must not have been employed without authorization since his or her lawful admission to the United States and before the filing of the petition.

There are fees associated with an H-1B transfer. An employer filing the I-129 form must pay a petition fee as well as some additional fees unless exempt under Part B of the H-1B Data Collection and Filing Fee Exemption Supplement or covered by the Fraud Prevention and Detection Fee under the H-1B Visa Reform Act of 2004.

More information, including fee information and a link to the form itself, can be found here.

The American Competitiveness in the Twenty-First Century Act (AC21), passed in October 2000, provides that nonimmigrant workers with H-1 B status may begin working for a new employer once the new H-1B petition has been filed and a Notice of Action Receipt (I-797C) has been received. This means that the I-129 has to be only filed and not approved. There is a greater probability of approval if the nonimmigrant would be working in the same capacity in the new job as in his or her previous job. If the petition is ultimately denied, the individual under the H-1B status would no longer be able to work for the new employer, and would be considered "out of status"; therefore, waiting for approval may be the best course of action.


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