H-1B Transfer (Change of Employer)

Confirm beneficiary is in valid H-1B status (not expired, not fallen out of status). Verify lawful admission or change to H-1B. Assess 3-year/6-year cap issues and whether extension based on approved I-140 is needed.

1-2 days

Key: AC21 Portability requires beneficiary to be in valid H-1B status and prior H-1B petition must have been approved (not pending).

File new LCA on DOL FLAG system for new employer. Worksite, SOC Code, and wage level must reflect the actual new position. If worksite changes, prevailing wage may differ.

5-7 business days

Provide: corporate registration, EIN, most recent tax returns (ability to pay), org chart, employee roster. ACWIA fee: $750 if < 25 employees; $1,500 if ≥ 25.

Issue formal Offer Letter (with title, salary ≥ prevailing wage, start date). HR Director or CEO signs Support Letter explaining company operations, position description, and why the role is a specialty occupation.

Confirm current H-1B status is valid and I-797 not expired. If nearing 6-year limit, check if approved I-140 or PERM 365+ days supports extension. Do not resign from current employer until new petition is at least filed (Receipt obtained).

Strongly recommend waiting for Receipt Notice before starting with new employer. Some attorneys advise waiting for Approval to resign to reduce risk.

Provide to new employer's attorney: passport, current I-797 Approval Notice, all prior I-797/I-94 records, degree certificates and evaluations, resume.

Complete I-129 + H-1B Supplement, marked as "Change of Employer." Draft Cover Letter arguing new position is a specialty occupation. Attach prior employer I-797 to prove existing H-1B approval. If approaching 6-year limit, argue extension eligibility based on I-140/PERM.

1-2 weeks

File I-129 petition (Premium Processing recommended for faster certainty). Once USCIS issues Receipt Notice, beneficiary may legally work for new employer (AC21 Portability). Keep receipt as proof of work authorization.

If old employer withdraws prior petition before new one is approved, beneficiary may continue working (as long as new petition is pending). But if new petition is denied, must stop working immediately.

After LCA certification, post LCA notice at worksite for 10 consecutive business days. Establish Public Access File. Ensure actual wage ≥ prevailing wage on LCA.

Sign I-129 form (new employer is Petitioner) and G-28. Pay government fees. Note: ACWIA fee and Fraud Prevention fee must legally be paid by employer, cannot be passed to employee.

Recommend Premium Processing ($2,965) to ensure the employee can formally start ASAP.

Review personal information in the I-129 prepared by attorney. Upon receipt of USCIS Receipt Notice, may begin working for new employer. Keep a copy of Receipt Notice as proof of work authorization.

After approval, receive new I-797. If international travel needed, must obtain new H-1B visa stamp at US Consulate reflecting new employer. Carry new I-797 + new visa when returning.

If in Canada/Mexico, automatic visa revalidation may apply in some cases, avoiding the need for a new visa stamp.

Common Transfer RFEs: specialty occupation argument for new position, new employer ability to pay, employer-employee relationship (especially third-party worksites). After approval, confirm new I-797 validity dates and arrange visa update if travel planned.

RFE response within 84 days; 1 week post-approval follow-up

Upon receiving I-129 Receipt Notice, employee may start working (AC21 Portability). Complete I-9 form. Note: if petition is ultimately denied, employee must stop working.