Immigrantly

Immigration thoughts from an Immigration Lawyer.

How fast can I complete an H1B transfer (change of employer)?

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The common term “H1B transfer” refers to the change of employer (COE). When you are unhappy with your current employer, and have finally found a new employer, you would probably want to start working with the new employer as soon as possible. But how soon can it be? These are the steps and timelines for an H1B COE procedure.

Step 1: File a new Labor Condition Application (LCA) with the Department of Labor

LCA determines your wage and specifies your job duties and work location. Your new employer must file a new LCA for you, unless they already have a valid pre-existing LCA for your position. Although this is rare, if your new employer does have a valid LCA, you can skip to Step 2. Otherwise, the current processing time for LCA adjudication is about a week.

Step 2: Submit an H1B petition to USCIS

As soon as your LCA is approved, you can submit an H1B petition (I-129) to USCIS. The normal adjudication of an H1B petition takes about 3-4 months. But if you are still working for your current company when your new employer files the H1B petition, you can start working with your new employer as soon as your H1B petition is received by USCIS! However, you need to be careful about the timing of start working for your new employer. You need to make sure that USCIS has “received” your petition, before you can start working. And be aware, a petition “received” by USCIS does NOT mean the physical receipt of your petition package. It means USCIS has opened your package and decided to process your case. USCIS will reject a petition if the company check for processing fee is not written correctly, the petition forms lack signature, or because of other deficiencies in the petition documents. Therefore, checking on your mail tracking system is not enough. You need to receive a Receipt Notice from USCIS before you can start working for your new employer, otherwise it will be an unauthorized employment. Under the normal processing time, you will receive the Receipt Notice in mail in about 2 weeks. This may be too long for you to wait. Therefore, if you want to start working with your new employer as soon as possible, you may want to consider the Premium Processing option.

Premium Processing is an expedited process where you pay an extra $1,225 and get your adjudication result within 15 calendar days. A less known benefit of Premium Processing is that USCIS will send you status updates via email (usually to your company’s email). Therefore, if your case is “received” by USCIS, you will receive a Receipt Notice within one day. If you use overnight mailing service, you may start working for your new employer 2 days after your submission of H1B petition.

Step 0: Hiring a good lawyer

Last but not least, is hiring a good lawyer. It is “Step 0” because it is optional. You don’t have to hire a lawyer if you or your company knows how to handle all the procedures. Otherwise, it is “Step 0” because it’s the first thing you need to do. It is especially important to choose a good lawyer if you want to start working with your new employer as soon as possible. Step 1 and Step 2 above explains the minimum amount of time each process takes. However, what usually takes the longest is the preparation for these two steps. A typical lawyer will do the following:

  1. Interview the company for H1B qualifications
  2. Send retainer (contract) to the company and receive payment for attorney’s fee
  3. Gather necessary information and documents from both you and your company
  4. Send your company the H1B Notice to be posted on your company’s premise
  5. Draft the LCA and send it to your company for review
  6. Submit the LCA

Up until this point, it usually takes a week or two, or even more, depending on how cooperative you, your company, and your lawyer are. Once the LCA is certified, the lawyer will do the following:

  1. Send the certified LCA to your company for signature
  2. Draft the H1B petition forms and company support letters and send them to your company for review and signature
  3. Put all the petition forms and supporting documents into a package
  4. Submit the package to USCIS

These tasks usually take another week or two. A good lawyer will prepare all the forms and letter while waiting for LCA adjudication. But depending on the difficulty of the case, drafting the company support letter may take a while, because the lawyer may need to do a lot of research and think through the arguments and presentation that strengthen your case.

As you can see, this Step 0 can be the longest wait time, because there are so many parties and documents involved. However, a really good lawyer with the cooperation from you and your employer may shorten the preparation process to 1 day for LCA filing, and 1 day for H1B petition filing. This will require the lawyer and your company’s HR person to work very closely, not only in terms of sharing responsibilities, but also geographically and physically. Ideally, they will work in the same room during those two days, so that all the reviews and signatures can be done instantly. The lawyer also needs to have the experience, skills and resources to gather all the necessary information and documents, and to draft and review all the forms and letter quickly and efficiently.

Conclusion

Depending on your and your company’s situation, and the lawyer you may or may not hire, an H1B COE process can take minimum of 2 days to 3+ weeks before you can start working for the new company.

Situation 1: Valid LCA + Premium Processing = 2 days

Situation 2: New LCA + Premium Processing = about 10 days

Situation 3: Valid LCA + Normal Processing = about 2 weeks

Situation 4: New LCA + Normal Processing = about 3 weeks

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