On H-1B but Mistreated by Your Employer?

Are you an H-1B employee being mistreated by your sponsor employer and wants to change an employer?

Here are the steps to help you prepare to transfer your H-1B Petition to another employer

The H-1 visa grants its holder temporary employment in the United States with a sponsoring employer. Due to the fact that the visa’s availability is contingent entirely upon the employer’s sponsorship, incidents in which the employee is mistreated or taken advantage of may arise. It is therefore very important for the holder of an H-1 visa to fully understand their legal rights: they possess all of the same rights as other employees and must be treated as such by their employer. Denying or limiting the visa holder’s rights as an employee is illegal and should be brought to the attention of the proper authority.

In the event that an H-1 visa holding employee feels that his or her rights as a worker have been violated or that they are being unfairly treated by their employer, they may elect to leave their current post and switch to another employment position. Should you have any questions about transferring your H-1 visa or require clarification on whether your legal rights as an employee have in fact been violated, you should discuss your concerns with your immigration attorney.

The actual changing of employment by an H-1 visa holder is sometimes referred to as an “H-1B Transfer” by immigration attorneys and others in the legal industry, but it is important to understand that this is actually a misnomer. H-1B visas are not actually transferred between employers when the holder of the visa switches jobs. Instead, the visa holder must file an entirely new H-1B petition to reflect the change in their employments status and sponsorship. It is therefore paramount to understand that the term “H-1 Transfer” refers to the filing of a brand new H-1B petition. This new petition, however, is not subject to the customary limitations of the H-1B cap. H1-B transfers are Unlimited and are NOT counted towards the regular H1-B quota (cap). This means H1-B transfers can be filed at any time of the year.

In order to file a new petition with the new employer, also submit the following documents for H-1B applicant:

  1. Two or three most recent pay stubs. It is not required if the existing H-1B was never used and the transfer is applied from outside the US. If it has been more than 30 days since last paystub, let your immigration attorney knows.
  2. Copy of your most recent H-1B approval notice, if available.
  3. Photocopy of your Form I-94. DO NOT send the original.
  4. Copy of the most current visa stamp, if applicable.
  5. Latest resume
  6. Contact info of new employer
  7. Copy of all degrees, diplomas, transcripts, and mark sheets

The most important thing to know about H-1B visa transfer is that current H1-B visa holders can start working for a new employer as soon as an H1-B transfer petition is submitted to the USCIS by the new employer (sponsor company). The applicant does not have to wait until the new petition is approved.

Also, if you feel your employer has violated any of your rights, you can file a complaint with the Department of Labor, which may help with next H-1B petition.

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