*Immigration Attorney Prashanthi Reddy, Esq Answers a Question on H1B Transfer while outside the USA.*
*Definition and Process*
An H1B visa transfer refers to changing an H1B worker's employment from one U.S. employer to another. Importantly, this is not a literal "transfer" of the visa but a new petition by the prospective employer. The process involves the new employer filing an H1B petition with the U.S. Citizenship and Immigration Services (USCIS).
*Key Features*
No Cap Subject: Transfers are not subject to the annual H1B visa cap.
Continuation of H1B Status: The beneficiary continues to be counted against the cap from their original approval.
Employment Change: The new job must qualify as a specialty occupation.
Special Considerations for Overseas Transfers
*No Prior Entry on H1B*
When the beneficiary is overseas and has not entered the U.S. on an H1B visa, the transfer process involves additional scrutiny. The USCIS examines the beneficiary's eligibility for H1B status and the legitimacy of the initial H1B petition.
*Documentation and Evidence*
The new employer must provide:
A valid job offer in a specialty occupation.
Evidence of the beneficiary's qualifications.
Proof that the initial H1B petition was approved and valid.
Legal and Procedural Nuances
Consular Processing: The beneficiary might need to go through consular processing since they have not activated their H1B status by entering the U.S.
Visa Stamping: If the H1B visa has not been stamped in the passport, the beneficiary must attend a visa interview at a U.S. consulate.
Challenges and Solutions
Challenge: Proving Non-Fraudulent Initial Petition
The USCIS may scrutinize the initial petition to ensure it was not fraudulent, especially if the beneficiary never commenced employment with the initial H1B sponsor.
*Solution:* Maintain thorough documentation of the initial petition, including correspondence with the first employer and reasons for not commencing employment.
Challenge: Visa Stamping and Consular Appointments
Obtaining a visa stamp can be challenging, depending on the consulate's workload and the individual's circumstances.
Solution: Schedule the visa interview well in advance and prepare meticulously, including understanding the new job role and demonstrating ties to the home country.
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