Banyan

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Sameer Khedekar

Sameer Khedekar

Sameer Khedekar has been named one of the Top 20 Immigration Attorneys in the Nation by HR Executive Magazine. He has managed corporate client relationships since 2003 and is now focusing his efforts on serving the nation’s high-skilled immigrant population as the Founder and CEO of Banyan.

How Risky is the H-1B Transfer?

How Risky is the H-1B Transfer?

By: Sameer Khedekar

Wait – what exactly is an H-1B transfer?

It’s a type of H-1B petition, submitted by a company to sponsor a new employee who is working for another company on an H-1B. The petition itself is not shorter, easier, or in any way less work than any other H-1B lottery or extension petition. The only difference is that the employee may begin work when USCIS receives the petition, rather than being forced to wait until the approval. 

Is it risky to transfer upon the receipt of the petition?

So, our worry is that you leave your company, join another upon the receipt of the H-1B transfer, only to see the H-1B denied. You are left without a job and about 60 days to either find a new employer or leave the country (and appeal or re-file). The stakes are obviously enormous, but the risk used to be relatively low. 

I’ve worked with hundreds of companies with household names and have overseen thousands and thousands of H-1B transfers. My honest assessment is that before 2016, I wouldn’t hesitate to recommend changing jobs upon the filing of the H-1B. USCIS approved almost 100% of legitimate, well-constructed transfer petitions “back then”. 

Now, it’s kind of a mess. H-1B denials have increased by 27%. Requests for Evidence (often feared as a potential denial indicator) are now issued at a 60% clip (a 40% increase)

So, I’ve changed my tune and so have many others. Many companies are now encouraging employees not to give notice until the H-1B is approved, assuming premium processing is alive. We no longer feel 100% certain that your transfer petition will be approved, and we, therefore, do not want you to bear the suddenly real risks outlined above. If you can, try to convince your soon-to-be employer to pony up for premium processing and wait for the approval before you switch. 

Is the risk the same no matter what company I join? 

We think the risks warrant waiting for approval before you leave no matter what company you join. Sure, the chances of denial have always been relatively high at traditional IT consulting firms, and they are now worse as the administration specifically targets them. For example, Cognizant had 8% of their H-1B’s denied pre-2016. Now, they get a whopping 56% of their H-1B’s denied. 

However, USCIS adjudicators have clearly been instructed to more heavily scrutinize all H-1B’s. Google, who should be a poster child for the H-1B program, had only 1% of their H-1B’s denied pre-2016. Now, 6% of their H-1B’s are being denied, meaning even they are having to grapple with a 500% increase in denials (translating to roughly a hundred denials a year)!

I still think it is overall a safe bet to change companies – Google will still get your H-1B approved 94% of the time. Just don’t bet the house anymore – simply ask to wait for the approval. If the hiring manager is pressuring you to join earlier, ask the company immigration specialist and their law firm to intervene. They understand the stakes and can educate the manager. 

Or, maybe the company has a policy to not wait for approval. In this case, your future manager can be an ally and persuade the HR team to make an exception on your behalf. 

I want to join a company. How can I tell if that company will have a hard time getting my H-1B approved? 

First, as mentioned above, we wouldn’t recommend giving notice at your current job until the H-1B transfer is approved. However, it is worth sizing up the health of the company’s immigration program before deciding to join them. They will, after all, apply for your extensions and green card, and will be managing your basic compliance (you can also do your part to manage your own compliance!). How do you know if a company has a strong immigration program? 

Trust me, most companies with established immigration programs are hyper-aware of how important it is to run an airtight ship, and they work very hard on this behind the scenes. The very best programs all seem to have the same makeup: smart, organized managers in HR, educated recruiters, management that prioritizes the immigrant employees’ experience, a solid law firm (or legal team within a larger law firm) that has had the time to get in a groove with the company, and great systems and procedures (including technology that saves everyone time and keeps your personal data secure). 

One way to assess this is to gauge your experience with the recruiters. How quickly are they getting back to you? How informed do they seem to be? They often have to go back to their HR colleagues or law firm to ask questions or assess the viability of your case, and if they are taking too long to get back to you, or don’t seem to know how the process works, that might indicate an internal problem in the communication or logistics chain with the HR or their law firm.

If you have friends on visas working for that company, ask them about their experience. They don’t need to brag about a 5-star experience to give you comfort. If their case was approved, everything functioned more or less on time, and the communication and information sharing process was more or less painless, then you have a healthy immigration program. 

Don’t be scared away if a company has had some H-1B’s denied. In this climate, that should not be a deal-killer. You can look at it as one indicator though, and this information is now more accessible than ever. It’s perfectly ok to ask a company what went wrong with a case that got denied if it seems to be similar to yours. Listen to how they explain it. Can they calmly explain what went wrong, even when it was the government’s fault (it often is nowadays)? Or are they defensive? Do they point fingers? Are they unclear what happened? If so, that means they may not have the legal strength behind them to navigate these choppy waters.

What happens if I sign the offer letter but the H-1B transfer is denied?

When you sign an offer, you are obligating yourself under contract law. If you read most offers though, they are conditioned on the successful approval of the H-1B. Here is a common clause: “This offer is contingent upon you securing valid immigration status and appropriate employment authorization to work for us”. If the H-1B is denied, you are excused from the promise you made. 

I left my company and my transfer was denied. What do I do?

This is the worst-case scenario. Your first concern should be unlawful presence. Read about it here, and why it is different from just being out of status. If you are accruing unlawful presence, make arrangements to leave the US right away. Can your company let you work from your home country or another country to can legally work in? You are allowed to, as US immigration law only has jurisdiction over you when you are in the US. Companies usually have logistical hurdles to jump here, but it’s been done many times. 

In the meantime, your company can re-file the H-1B and try to correct whatever the issue seemed to be (the USCIS appeals process is generally not worth it ). Assuming premium processing is available, maybe you can be back in the US working in as little as 6 weeks. Remember that may have to get a new visa stamp. 

Consult with an attorney – get a second opinion. A good attorney can help you position yourself well for the future, despite this hiccup. Remember that the company attorney, who may be a very smart, helpful and lovely person, will be focused on the appeal and keeping their company client happy, first and foremost. He or she may not be able to take the time to explain what this all means to you and your family, if you have one. 


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