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As we kick off 2023, one of the biggest priorities for employers with foreign workers is the annual H-1B lottery.  USCIS typically opens up the electronic lottery in early March and closes it in late March.  Employers must pay a $10 fee to register their company and the employee they wish to file an H-1B petition for.  2023 may be the last year the fee remains $10, as USCIS is proposing to increase the registration fee to $215.

Employers can register to petition as many employees as they would like.  However, only one entry per employee is permitted.  We will update this post as new information about this year’s H-1B lottery becomes available.  In the meantime, you can learn more about the H-1B visa and feel free to email us if you are interested in registering in this year’s lottery.

We’ve seen massive layoffs in the technology and financial sector in 2022.  For those who are on H-1B visas, they have a small window to leave the United States, change to another non-immigrant status, or to transfer their H-1B to a new employer.

What is an H-1B Transfer?

The term “H-1B transfer” is a bit of a misnomer.  Any time an H-1B visa holder changes jobs, the new employer files a new petition with USCIS to bring that employee over.  So, the transfer is really the changing of companies.  However, procedurally the new company is filing a brand new H-1B petition.  The only difference between a new petition and a transfer is that the employee already has an H-1B and therefore the employer does not have to enter him or her in the annual H-1B visa lottery.

How do I transfer my H-1B if I have a job offer with another company?

Typically, USCIS requires some to demonstrate that they have been maintaining lawful status in order to change or to extend your non-immigrant status.  For those in H-1B status, this means proving that you are currently employed by the H-1B sponsor/petitioner before extending your status or moving to a new employer.

A typical scenario involves an H-1B visa holder who is offered a job with another company and wants to ‘transfer’ her visa over.  The new company will file an H-1B petition with USCIS seeking ‘transfer’ the candidate over.  The candidate will typically remain with the current employer until the petition is approved, at which time she starts working for the new employer.  Technically, the candidate can begin working with the new employer once USCIS receives the transfer petition.  However, most people choose to stay with the current employer until an approval in an abundance of caution.

Can I transfer my H-1B if I have already been laid off?

If a candidate is in H-1B status and her current employer terminates or lays her off, she are considered out of status.  As stated earlier, USCIS typically requires her to prove that she has maintained lawful status when extending or transferring your H-1B.  Fortunately, USCIS provides a 60-day grace period after the last day of employment during which a new employer can file a petition to transfer an H-1B over.  So long as the petition is received by USCIS within the 60-day grace period, the candidate can remain in the U.S. and even start working for the new company.

What happens if I can’t find a new employer within 60 days?

If you are not able to find a new employer to transfer your visa within 60 days, you should immediately leave the U.S. before accruing too much unlawful status.  Even if you find a new job, that employer has to file the petition within 60 days of the last date of your employment.  If more than 60 days has elapsed and you are offered a job, the new employer can still file an H-1B petition with USCIS on your behalf.  The only difference is that you still have to depart the U.S. and wait abroad for an approval.

If the petition is approved, you may re-enter the U.S. in H-1B status depending on whether you: 1) have an existing H-1B visa with the previous company; 2) are from a country that does not require an H-1B visa to enter; or 3) don’t have an H-1B visa.

If you already have an H-1B visa with the company that just let you go, you can re-enter the U.S. on that visa with the I-797 approval notice from the new company.  If you are from a country such as Canada, you can simply re-enter the U.S. in H-1B status with the I-797 approval notice.  If you are not from Canada and you do not have an H-1B visa, you will have to make an appointment at the U.S. consulate nearest you and apply for a visa before you can re-enter the U.S.

On February 24, 2021, USCIS announced that it would expand its premium processing service option to employers filing E-3 petitions on behalf of Australian citizen beneficiaries.  Prior to this announcement, employers would have to wait several months for USCIS to adjudicate an E-3 petition – leaving the Australian citizen employee in limbo while waiting for a decision.  The USCIS filing fee for an E-3 petition premium processing is $460 + $2,500.  USCIS officers must adjudicate a petition submitting via premium processing within 15 business dates of receipt.

Learn more about the E-3 visa for Australians and feel free to contact us for more information.

Non-citizens with a pending application for adjustment of status with USCIS are eligible to apply for a temporary work permit known as and Employment Authorization Document (EAD).  There is no USCIS fee to apply for an EAD so it is recommended that everybody applies for one regardless of whether they intend to seek employment or not. An EAD helps the applicant apply for a Social Security Number and a driver’s license.

While timelines vary, it usually takes USCIS at least six months to issue an EAD.  There may be some instances where you need to seek employment sooner – such as an emergency financial situation.

In emergency cases, it may be possible to request an Emergency Employment Authorization Document with USCIS.  To do so, you should call USCIS at (800) 375-5283 and request an InfoPass appointment.  A USCIS representative will ask you for the basis of your request.  You should be prepared to have supporting documentation, including proof of the financial need or emergency, as well as your I-485 receipt number.

The USCIS representative will schedule an InfoPass appointment at a local field office on your behalf.  You may also be asked to fax in the supporting documentation instead.  If USCIS is satisfied with your request, it will issue an EAD card.

The lottery for the 2022 fiscal year H-1B electronic lottery registration begins on March 9, 2021 and closes on March 25, 2021.  During this window, employers pay $10 to register their company and the employee they want to sponsor for an H-1B.  Employers can register as many employees as they wish, though no employee can be registered twice with the same company.  The lottery will take place between March 26th and March 30th, with USCIS likely announcing those who were selected (and not selected) on April 1, 2020.

Assuming the same procedure this year, those were are selected in this year’s lottery will have until June 30, 2021 to submit their H-1B petitions to USCIS.  Last year, USCIS had a surplus of available visas and conducted a second lottery in the fall of 2020.

Learn more about the H-1B visa and feel free to email us if you are interested in registering in this year’s lottery.