Is H1B Transfer without paystubs possible?


I have been working on an H-1B since last October with Employer A, a staffing company. I was on a client project until January of this year, and I was relieved by the client on January 20th. Employer A and I have been looking for another project, but haven’t found any so far. However, recently Employer B has approached me for an H-1 Transfer. However, Employer A has not provided me a paystub for pay-period after January 20th. Can I still transfer my H-1B with Employer B or will there be any issues in the process?


H-1B employers and employees are equally confused about this issue.Unfortunately, there is no YES or NO answer for this question. Every H-1B case is very unique, and the analysis has to be done a case-by-case basis. Giving a general legal opinion or a YES/NO answer could misguide employers and employees. However, we will analyze the situation in this case and put a few facts in front of you to understand such similar scenarios.

H-1B Status and Wages

  • H-1B status ends when you stop working for your employer in the sense that you stop performing specialty occupation duties that have been mentioned in the Labor Condition Application (“LCA”) and your H-1B petition. There are some exceptions, such as if you are an unpaid leave, sick leave, medical leave etc.
  • Department of Labor (“DOL”) and United States Customs & Immigration Service (“USCIS”) does not allow benching of H-1B employees. That means even when an employer cannot find work, technically the H-1B employee should have been paid.
  • USCIS regulations prohibit the change or extension of status for individuals who are out of status (with limited exception for certain unusual situations).

Status for H1B workers normally is demonstrated via the following:

  1. Paystubs provided by the H-1B employer on a bi-weekly or monthly basis. Pay should be in accordance with the prevailing wages reflected on the LCA and H-1B petition.
  2. An employment letter from the employer listing the job duties, wages, part-time or full-time employment, and the exact dates the H-1B employee has worked with the employer.

In an H-1B Transfer, what happens when paystubs are not available and there are potential status gaps?

If paystubs are not available, the Employer B may be able to submit the letter from Employer A in lieu of paystubs. However USCIS might not be convinced that employee has maintained H-1B status with Employer A, since no paystubs have been provided for a certain period of time.

There are three possibilities in such cases:

  1. H-1B Transfer Approved with I-94

    You might get lucky, and USCIS might show flexibility and overlook minor gaps in status when making decisions. USCIS will issue an H-1B approval notice (I-797) with an I-94.

  2. H-1B Transfer Approved without I-94 (“Consulate Processing”)

    Employer B might obtain an H-1B approval notice (I-797) without an I-94 indicating Consular Processing (“CP”). This means you you will have to leave the country, make application for an H1B visa at a U.S. consulate in your home country (preferred) and obtain an I-94 card upon reentry. If however, there are extended gaps in status, and if the Consulate Officer (“CO”) determines that you have not maintained your H-1B status for an extended period of time, you might be unable to obtain a visa to reenter the United States.

  3. H-1B Transfer Denied

    Employer B’s H-1B transfer petition might be denied. You will have to leave the country immediately, and for any amount of time you are deemed out-of-status (“unlawful stay”), the 3/10 year bar on reentry might apply, if the status gap is over 6/12 months.

Can H1B Visa holder study in the United States?

The short answer is YES.

Full-time studies vs. Part-time studies

Full-time and Part-time definitions vary by University, and also if you are pursuing in-class or online education. Generally accepted definition is as follows:

  • Part-time student attends a University for 6 credit hours (2 courses) or less.
  • Full-time student attends a University for 9 credit hours (3 courses) or more.

Will my H-1B status affected if I pursue a Masters Degree in the United States?

  • Nothing in the H-1B regulations prohibits an H-1B worker from attending classes as long as the studies are incidental to H-1B status.
  • The H-1B regulations does not prohibit part-time or full-time studies in the United States. However, the H-1B worker should be maintaining H-1B status and complying with all the regulations.
  • If an H-1B worker’s visa has been filed on a part-time basis, he could be working only 20 hours. If it is on a full-time basis, he would have to work atleast 40 hours in accordance with the Labor Condition Application (“LCA”), and the terms and conditions of the Employment Agreement.
  • If the 40 hour work week requirement is complied with, a full-time H-1B worker can pursue a college education in the remaining time available to him during the week. Most Universities offer evening and/or weekend classes for students who are employed full-time.
  • A good option would be to pursue a Masters (“MS”) or an Masters in Business Administration (“MBA”). This degree can also be beneficial in the greencard filing process, and make a huge difference in the time required to obtain a greencard.

Will I qualify of In-State Tuition on H-1B Visa?

  • For any student who applies to a State funded University, the tuition can be either Out of State tuition or In-State tuition.
  • In-State and Out-of-State tuition is only limited to State Universities, and not Private Universities.

Out of State Tuition

If you are not considered a resident of the state, you will end up paying Out-of-State tuition. This is much more than what you would pay being a resident of the state. Every state has different requirements.

In-State Tuition

  • Most states would consider you a resident and hence qualify you for In-State tuition if you have lived in that state for 1 year.
  • In-state tuition is subsidized by the state governments, and is as low as half of Out-of-State tuition.
  • H-1B and H-4 visa holders usually qualify for In-State tuition in most states, although every state interprets this very differently.

Documents required to prove In-State Tuition eligibility

In order to prove In-State tuition eligibility in a state funded college, you will have to show residency of that state by collecting the following documents:

  • If you are moving in a state, always get a new Driver’s License with your new address in that state. This is one of the best residency proofs.
  • Car Registration and Car Insurance Certificate should be changed to the state you have moved in.
  • Apartment Lease or Mortgage documents in your name.
  • Your paystubs should indicate the address that you currently live in. If you move, inform your employer immediately so the payroll records can be updated.
  • Your employer should also provide you with a W-2 at the end-of-the year which would show the state that you live in.
  • When you file for State Income Tax Returns, most states will document your stay in that state. You will have to attach your State W-2 along with the filed returns.
  • Open a new bank account in that state and/or update the address on your bank account.
  • Keep utility bills–such as electricity, cable, phone–for upto 1 year as address proof.

H1B Amendment : When should it be filed?

H-1B Amendment Key Facts

  • H-1B employer (petitioner) must file an amended or new petition, where any material changes have occurred–in the terms and conditions of employment or training or the H-1B employee’s (beneficiary’s)eligibility–from what was specified in the original approved petition.
  • A new Labor Condition Application (“LCA”) reflecting the material change must be filed along with the amended H-1B petition.
  • The responsibility to determine if the change of material or not, however lies on the employer.
  • H-1B employer will be considered to be in violation and the H-1B petition may be revoked, if non-compliance where amendment was required, but did not happen.

While “material change” has been defined under the H-1B regulations, it is a very gray area. Also it differs on a case-by-case basis, and it would be inaccurate to generalize every case and view it through the same lens. So it is always recommended that your case be evaluated by a competent immigration attorney, even though you might feel that based on facts at hand, an amendment might not be necessary. Many a times, a wrong analysis can lead to unnecessary petition revocations and increased future Department of Labor (“DOL”)/Department of Homeland Security (“DHS”) site visits.

Following factors in an employment situation will help you analyze if a “material change” has occurred and if an employer should file for H-1B Amendment:

  1. Promotion

    Routine promotions are generally not deemed “material,” as they do not directly impact the employee’s continued eligibility for H-1B classification. Hence, promotion to a higher position within the same occupational classification would not normally require the filing of an amended petition, provided that the alien is required to utilize the same academic training as was required in the former petition.

    For e.g. a promotion of a Programmer Analyst to a senior Programmer Analyst may not require an amended petition. However, promotion from Systems Analyst to a Technology Project Manager (different occupational classification) would most likely require an amended petition. Also, even if an H-1B amendment has not been filed, it is prudent to atleast file a new LCA and maintain it in the LCA Public Access File. Promotion might need a change on the Wage Level in the LCA.

  2. Salary

    A salary increase which is in line with a promotion within the same occupation classification would not generally be a material change and thus would not require a new petition. However, if the occupational classification and job duties have changed significantly, a new LCA as well as H-1B amendment would need to be filed.

  3. Hours

    Many H-1B employers at some point in time, realize that they are unable to offer the H-1B employee, work that would justify full-time hours Under American Competitiveness and Workforce Improvement Act (“ACWIA”), an employer is mandated to pay wages to an H-1B employee who is in nonproductive status, unless such nonproductive status is due to either the worker’s own initiative or certain circumstances which render the worker unable to work (e.g. sick leave, family medical leave etc.). These are also known as “no-benching” rules.

    When an employer does not have sufficient work for the H-1B worker to make payment of his/her required wages feasible or advantageous to the employer, the employer may terminate the H-1B’s employment, notify immigration and pay for the alien’s return transportation.

    However, if the H-1B employee is continued to be employed, but his or her hours have changed significantly, it is prudent that the employer files an amended petition to reduce the worker’s hours in order to avoid remaining liable under the “no benching rules” for the number of hours listed on the previous petition.

  4. Change in Occupational Classification and Job Duties

    Majority of H-1B amendments happen due to a change in occupational classification and job duties. A change to an occupation not listed on the LCA invalidates the LCA. Hence, as discussed earlier, a promotion that results in the application of a new Occupational Code (such as a move from professional employment to a management level position) may constitute a change in occupation.

    Also, when the new position is in a different specialty occupation, it will be deemed as a material change. For e.g. if a physician on H-1B is teaching or conducting medical research and then seeks to provide clinical care, an amended petition must be filed.

  5. Corporate Name Change

    When only the name of the company changes, no new or amended petition need be filed. A corporate name change by itself does not constitute a material change. Note, however, an H-1B amendment is recommended in this case, even though it is not required, as this will prevent the beneficiary from experiencing undue difficulty on future
    entries into the United States, on an unexpired visa issued in the previous company name.

  6. Corporate Restructuring

    If an H-1B employer is involved in a corporate restructuring—including a merger, acquisition, or consolidation—that employer is not required to file amended H-1B petitions on behalf of its H-1B employees if the new corporate entity “succeeds to the interests and obligations of the original petitioning employer”’ and if the terms and conditions of employment otherwise remain the same for the H-1B employees.

    After restructuring, the “new” corporate entity must maintain a list of all transferred H-1B employees and draft a “sworn statement” that it will assume all “obligations, liabilities and undertakings arising from or under attestations made in each certified and still effective LCA”. The new corporate entity must file new LCAs and H-1B petitions only if it hires new H-1B employees, or if it seeks an extension of H-1B status for any of its current H-1B employees. This sworn statement must be maintained in employer’s Public Access Files, along with the LCA.

    After restructuring, if an H-1B employee is traveling back into the United States he should carry a letter from the H-1B employer stating that:

    1. New corporate entity has succeeded to the interests and obligations of the original H-1B petition employer; and
    2. Terms and Conditions of the H-1B employee’s employment remain the same (i.e. there is no “material change”)

  7. Transfer from one Branch to Another

    Mere transfer from one branch of a firm to another branch of the same firm does not require the filing of a new or amended petition, since a branch of a firm is not considered to be a separate entity from its parent company.

    If H-1B employee is transferred from one entity to another entity within the same organization, a new or amended petition should be filed if the new entity becomes the new H-1B employer. A transfer to a new entity would also include a change in job site, and hence would invalidate the underlying LCA. Hence, an amended petition must be filed.

  8. Change in Job Location or Client Site

    This is the most confusing section for H-1B employers. There are very conflicting opinions as to what consists of a job location change, especially in case of staffing employers who employ H-1B employees at third-party client sites.

    The problem is involvement of two different enforcement agencies i.e. Department of Labor (“DOL”) and DHS (“Department of Homeland Security”) in conducting site inspections to ensure “No Fraud” in H-1B filings.


    An H-1B employee completes his project with Client A in Chicago as a Programmer Analyst, and moves on to a new project with Client B in New York as a Programmer Analyst. H-1B employer properly files a new LCA to reflect the change in location, and even adjusts the wages in accordance with the new prevailing wages (if higher than Chicago). There is no “material change” as far as the occupational classification and job duties. So employer does not feel there is a need to file for an H-1B amendment.

    DHS does not know that the H-1B employee has moved from Client A to Client B, since they only have the previous LCA which was filed with the employee’s H-1B petiton, which reflects Client A’s worksite. The Fraud Detection and National Security (“FDNS”), conducts a random site inspection at Client A’s worksite. Obviously they find that the H-1B employee is not working there. United States & Customs Immigration Service (“USCIS”), a part of DHS then either sends a Notice of Intent to Revoke (“NOI”) or automatically revokes the H-1B petition.

    Despite having a new LCA on file, because the employer did not file for an H-1B amendment, such revocations can happen and can result in future site audits for the same employer. So the safe rule to follow in order to avoid such circumstances, is to file for an H-1B petition if job location has changed, and a new LCA has been filed.

    Are there situations when despite a Job Location has changed, an H-1B Employer need not file an Amendment?

    Yes. There are two situations where an H-1B amendment need not be filed despite a change in job location, as long as there are no other “material chances” discussed above. An H-1B amendment need not be filed, if the H-1B employee changes a job location or worksite which falls within:

    1. Reasonable commuting distance (35 miles) or
    2. Same Metropolitan Service Area (MSA) as the original worksite for which the H-1B petition was initially filed. For e.g. a work site change from Midtown NYC to Downtown NYC.

  9. Temporary Travel to a Client Location

    If H-1B employee is temporarily traveling to a client location for a very short duration (e.g. 2 weeks), employer might not need a new LCA, and hence an H-1B amendment also would not be required. The test would be that it should not become a permanent worksite for the employee.

H1B Transfer to new Employer while previous H1B Transfer is still pending


I have my original H-1B Visa with Employer A which is valid until December 2015. I transferred my H-1B from Employer A to Employer B on January 10, 2015, and the transfer is still pending. I began working with Employer B from January 15, 2015, upon receiving the H-1B Receipt Notice. I now have a new employment offer from Employer C, who offered me a better pay package. Employer C filed for another H-1B transfer on February 15, 2015. I started working with Employer C on February 20, 2015. Does Employer C’s petition approval depend on Employer B’s petition?


  • H-1B portability provisions permit the foreign national to begin working at Employer B the day the petition is “filed” although the processing might continue for another two to three months.
  • H-1B Portability is permitted only if you never engaged in unauthorized employment. Since you already were working at Employer B at the time transfer to Employer C was filed, the employment must be authorized, which means that portability to Employer C depends on the approval of Employer B’s portability petition.
  • So, if Employer B’s H-1B transfer is denied, your employment with Employer B would be deemed unauthorized, and hence, transfer to Employer C would be denied.

H-1B Annual Cap and Cap Exemptions

H-1B Annual Cap

  • Total number of foreign nationals who may be issued H-1B visas or H-1B nonimmigrant status during any fiscal year may not exceed 65,000.
  • If the statutory cap is reached within a fiscal year, subsequent petitions are returned by the Department of Homeland Security (“DHS”) with a notice that they should be resubmitted in the following fiscal year
    No backlog of petitions is created.
  • For fiscal years 2001, 2002, and 2003, the upper limit on the H-1B cap was substantially higher at 195,000. It was regressed to 65,000 in 2004, and has been the same every year since then.

H-1B1 for Chile and Singapore

  • Every fiscal year, 6,800 visas are set aside from the 65,000 for the H-1B1 program under the terms of the legislation implementing the U.S. Chile and U.S. Singapore free trade agreements.
  • Unused visas in this group become available for H-1B use for the next fiscal year.

H-1B U.S. Master’s Cap

  • Applicants who have earned a Master’s degree or higher from a U.S. institution of higher education, would be considered in US Master’s cap with an annual limit of 20,000.
  • Petitions qualifying for Master’s cap quota, and exceeding over 20,000 will be subject to the 65,000 H-1B cap unless the applicant is eligible for another exemption for the H-1B cap.
  • In reviewing H-1B petitions, it will be first determined whether there is another basis to exempt applicant from the 65,000 H-1B cap before considering the master’s or higher degree exemption, thereby freeing up potential exemptions from the 20,000 annual limit.

H-1B Cap Exemptions

A filed H-1B petition can be considered Cap-Exempt under following situations:

  1. If an H-1B petition for a worker has been considered towards the Cap in the past (6) six years, a US employer can file a new H1B under cap-exemption for that worker. In other words, the petition is not subject to annual cap, a new or the same employer can file an H1B like an H1B Transfer. The only difference would be that unlike an H-1B transfer, worker would only be able to work for the employer upon approval of this petition.
  2. A petition to extend an H-1B worker’s period of stay (“H-1B Extension”), filed by the same employer. The worker should be maintaining an H-1B status in the US.
  3. A petition is filed for an H-1B Amendment due to a material change in the petition (e.g. change of client, job position, duties etc.). The worker should be maintaining an H-1B status in the US, and the amendment will be filed by the same employer.
  4. A petition to request a new H-1B employment for the worker (“H-1B Transfer”) by a new employer. The worker should be maintaining an H-1B status in the US.
  5. If employer is an institution of higher education or non-profit entity affiliated with or related to an institution of higher education.
  6. If employer is a non-profit research organization or governmental research organization.

H1-B Labor Condition Application (LCA) : When is a new filing required?

Can an Labor Condition Application (“LCA”) be amended?

No. An LCA cannot be amended. There is no provision to amend it.

For many H-1B employers, this is one of the trickiest questions. Non-compliance with an LCA filing can impose sanctions and violations on the employer, and also put the H-1B employee out of H-1B status. So it is imperative that employers understand the specific situations under which a new LCA must be filed.

Scenarios when H-1B Employers must file a new LCA:

  1. Change of H-1B Employee’s Job Location

    Anytime employee’s job location changes, a new LCA must be filed. So for e.g. if H-1B employer is a staffing company, and the employee who was working on a client-site in Chicago, would now move to a new client site in New York, a new LCA must be filed. The prevailing wages will be in accordance with the new location, and if they are higher than the current wages, employer should make sure the wages are adjusted accordingly.

  2. Significant change in job duties and/or occupational classification

    A change in job duties that would result in the position being classified under a different standard occupational code, or where the nature/focus of the duties is quite different than that stated in the LCA. For example, an employee in position of a Software Developer (on LCA), is now being placed at a new client as a Computer System Analyst would require a new LCA filing, as this would not only change the job duties but also the occupational code.

  3. H-1B Transfers and Extensions

    The employer must file new LCAs if it hires new employees or seeks extensions for the transferred employees. This is obvious since new H-1B Petitions have to be filed in both an H-1B Extension and an H-1B Transfer, which must be accompanied by a new LCA.

Scenarios when H-1B Employers need not file a new LCA:

  1. H-1B Employee is Promoted

    A new LCA need not be filed if the H-1B employee is promoted, and there no significant changes in the job duties and occupational classification of the employee. Employer must document the changes and show that the wages are in accordance with the prevailing wages.

  2. H-1B Employer goes through Corporate Restructuring

    Where an employer changes its corporate structure as the result of an acquisition, merger, “spin-off’ or other such action, the new employing entity need not file new LCAs or H-l B petitions for transferred employees even if there is a change in the FEIN. Prior to employing the H-1B, the “new” employer should issue a sworn statement assuming all obligations, liabilities, and under-takings in all existing LCAs, and put them in the H-1B employee’s Public Access File (“PAF”).

  3. H-1B Employer Name Change

    A name change does not require a new LCA. However, this might have practical issues, if the H-1B employee is returning to the United States on an unexpired visa with the previous employer name. It is recommended for employer to provide relevant name change documents and/or sworn affidavit to the employee while he travels into the United States, to avoid any Port Of Entry issues.

  4. H-1B Employee location moves within the same Metropolitan Service Area (“MSA”)

    Usually if the H-1B employee changes a work-site which falls within reasonable commuting distance (35 miles) or within the same Metropolitan Service Area (MSA) as the original worksite for which the LCA was filed, a new LCA filing is not required. For e.g. a work site change from Midtown NYC to Downtown NYC.

  5. H-1B Employee is temporarily traveling to a Client Location

    If H-1B employee is temporarily traveling to a client location for a very short duration (e.g. 2 weeks), employer might not need a new LCA. The test would be that it should not become a permanent work-site for the employee.

Please be advised whether a new LCA needs to be filed is a very complex legal subject, and certain determinations fall into very gray areas of H-1B regulations. Also, every situation is very unique, and hence, it is always recommended to consult a competent immigration attorney before making a decision based on the above scenarios.

H-1B Eligibility Criteria for Employers

So what makes an employer eligible to file the H-1B petition?

In order for a US employer to file for an H-1B, there are several criteria that should be complied with. For H-1B purpose, an “employer”:

  1. Is a person, association, firm, or a corporation which currently has a location within the United States to which U.S. workers may be referred for employment, and which proposes to employ a full-time worker at a place within the United States or the authorized representative of such a person, association, firm, or corporation. For purposes of this definition an ‘authorized representative’ means an employee of the employer whose position or legal status authorizes the employee to act for the employer in labor certification matters;
  2. Engages a person to work within the United States;
  3. Has an employer- employee relationship with respect to employees and has the ability to hire, pay, fire, supervise, or otherwise control the work of any such employee; and
  4. Has an Employer Identification Number (“EIN”) or a Tax Identification Number issued by the Internal Revenue Service (“IRS”).
  5. Should be approved by the U.S. Department of Labor (“DOL”) to file for a Labor Condition Application (“LCA”). For employers who are new to H-1B filing, DOL would do a one-time EIN verification, before certifying an LCA.

Is H-4 amendment required in an H1B transfer?

No. An H-4 does not have to be amended, when the principal transfers his H-1B with a new employer.

However, an H-4 extension would be required, if the H-4 I-94 is about to expire.

  • An H-4 visa is not employer-specific. Accordingly, when the H-1B visa holder changes employers, no action is required to amend the status of his or her H-4 dependents.
  • However, since the H-4 status is dependent on the principal H-1B, it is absolutely necessary that the principal maintains a valid H-1B status and complies with all regulations of the H-1B status.
  • If H-1B can be deemed out of status due to any violations of the H-1B regulations, the H-4 would also be considered out of status.

H-4 Extension

  • When an H-1B employer files a new or amended petition for principal H-1B’s extension, the dependents on H-4 should also apply for an extension of status (I-94), either along with the H-1B extension or separately soon after.
  • It should be noted that the H-1B employer is not responsible to file for the H-4 extension, as H-4 is not employer specific. H-4 status is entirely dependent on the H-1B employee, and hence, the principal should be mindful of applying for the H-4 extension before the H-4 status (I-94) is about the expire.
  • There are many cases when H-1B employees forget about the H-4 extension, and as a result the H-4 dependents can be deemed out-of-status if their I-94s have expired.
  • The 3/10 year bar will be applied, and “unlawful stay” in the United States will begin accruing after the I-94 of H-4 dependent(s) expires.

Can an H4 change status to H1B if maximum time allowed on H4 is about to expire?

H-1B and H-4 maximum time period allowed

  • H-1B may be admitted for maximum of 6 years.
  • H-1B extensions are possible beyond 6 years under AC21 (American Competitiveness in the Twenty First Century Act), if H-1B’s Labor Certification (“LC”) or Greencard Petition (“I-140″) has been filed and is pending or approved.
  • The 6-year limit and AC21 regulations also apply to H-4 spouses and children. H-4 dependents would obtain extensions based on principal H1B’s extension status.
  • At the end of the maximum period, H-1B must either change to a different status (other than from H to L) or depart the United States.
  • If H-1B leaves the United States and stays outside for at least one year, The H1B clock will “reset” and would make him/her eligible for a new six-year period of admission in H-1B status. If the 6 year period has expired the new H-1B petition would fall under “H-1B statutory cap”.

H-1B and H-4 after six (6) years can switch positions with each obtaining a new six (6) years

  • An H-4 may change to H-1B because time spent in H-4 status is not counted toward the 6-year maximum.
  • An H-4 dependent can subsequently becomes an H-1B principal who would be entitled to the maximum period of stay applicable to the classification. At the same time the H-1B holder could become H-4 dependent since he/she has exhausted the maximum stay allowed. This promotes family unity by affording each qualified spouse the opportunity to spend six (6) years in H-1B status while allowing the other spouse to remain as an H-4 dependent and without undermining the Congressional intent to limit a principal alien’s ability to work in a specialty occupation for six (6) year maximum period. For example, a husband and wife who come to the United States as a principal H-1B and dependent H-4 spouse may maintain status for six years, and then change status to H-4 and H-1B respectively. However, upon the switch, the new “principal H-1B holder” would be subject to the H-1B cap if not independently exempt.

Switching statuses between H-4 and H-1B

The change of status application from H-4 to H-1B and H-1B to H-4 will have to show that until now:

  • H-4 complied with the requirements of accompanying or joining the H-1B
  • H-4 maintained valid nonimmigrant status (e.g. H-4 should not have been employed since not authorized to work)
  • Principal H-1B maintained his/her status for six (6) years by complying with all H-1B program guidelines

Can an H1B Candidate accept a Signing Bonus prior to H1B petition validity?

Signing Bonus

A signing bonus, also popularly known as a “sign-on bonus” is a sum of money paid upfront, to a new employee by a company as an incentive to join that company. This is usually a way for employers to compensate an employee by paying a one-time bonus, especially if employer’s starting salary is lower.

Can an H-1B Candidate accept a Signing Bonus prior to H-1B petition validity?

  • Under the H-1B regulations, usually, employment authorization and the ability to earn wages does not commence for H-1B candidates until the approval of an H-1B petition. Technically they don’t assume the “employee” status until the H-1B petition is approved.
  • In many cases, especially for F-1 students and J-1 exchange visitor nonimmigrants, while their change of status to H-1B is pending because of the H-1B statutory cap, there are concerns if they can accept a signing bonus for accepting a job offer from an employer who has filed their H-1B petition, before the H-1B petition takes effect on October 1.
  • The simple answer is YES. They can accept signing bonus, since it does not represent a salary or a reimbursement for services rendered and, as a result, may be accepted, prior to H-1B petition validity.
  • Not only that, but F-1 and J-1 nonimmigrants awaiting approval of an H-1B petition may receive monetary benefits, nonmonetary benefits (such as stock options), signing bonuses, and health benefits ‘‘so long as the bonus does not constitute reimbursement for services and is not made in expectation of future services.’’
  • While these propositions specifically refer to F-1 and J-1 nonimmigrants awaiting H-1B status, the underlying logic may be applied to any foreign national awaiting approval of an H-1B petition. “As long as the signing bonus is not salary, it is permissible for H-1B applicants no matter what their prior status may be.”