Transfer Employee Sponsorship from One Company to Another: A Comprehensive Guide

Employee sponsorship is a critical aspect of international employment, particularly for those with specialized skills that are in high demand. Understanding the intricacies of transferring sponsorship from one company to another is essential for both employers and employees. This article explores the various visa types and the specific rules and procedures involved in such transfers, ensuring compliance with U.S. immigration laws.

Understanding Employee Sponsorship

Employee sponsorship involves a company sponsoring an employee for a non-immigrant or immigrant visa, or for lawful permanent residency. This process allows the employee to legally work in the United States under the terms of the sponsored visa. The sponsored individual typically abides by certain terms and conditions, such as working for the sponsoring employer and maintaining a valid visa status.

Visa Transfer Scenarios

L-1 Visa

The L-1 visa is designed for employees transferring from a related company abroad to an affiliate in the United States. To transfer from the original L-1 employer to another company, the new employer must have a qualifying business relationship with the original employer. Common requirements include:

Relatedness: The new employer must be directly or indirectly owned by the same entity or 50% or more owned by common shareholders. Competency: The employee must have worked for the original employer for at least one year in the past three years. Transfer within Three Years: The new employer must transfer the employee within the last three years.

Until these conditions are met, the new employer cannot file for an L-1 visa for the same individual through the company already sponsoring them.

H-1B Visa

The H-1B visa allows U.S. companies to employ foreign nationals in specialty occupations that require theoretical and practical application of a body of specialized knowledge. Employers can file a “concurrent employment petition” to enable an employee to work for two companies at the same time, known as concurrent employment. To do this, the employee must disclose their plans to both companies and the U.S. Citizenship and Immigration Services (USCIS).

Alternatively, the new employer can file a “transfer petition” to change the employee from their current position in the existing H-1B sponsorship to a new position with the new employer. This process maintains the original H-1B validity and allows the employee to work for the new employer without disrupting their current sponsorship.

TN Visa

The NAFTA (North American Free Trade Agreement) NAFTA TN visa is available to professionals employed by a Canadian or Mexican company working for a branch, affiliate, subsidiary, or parent company in the United States. If an employee already has a TN visa issued by the U.S. and the new employer falls under one of these categories, the new employer can file an application to continue the existing TN status. This essentially allows the original sponsor to be replaced without requiring a new petition.

Green Card Sponsorship

When an employee is sponsored for a Green Card (permanent residency), the process can be more complex. If a company is sponsoring an individual for a Green Card, the first step is to obtain a labor certification. If the individual is currently in the sponsored status and the new employer wants to continue the sponsorship, both the new and old employers would need to apply for a new labor certification and file a new petition. This process can take a significant amount of time and requires careful planning.

Conclusion

Transferring employee sponsorship requires a nuanced understanding of the specific rules and regulations associated with each visa type. As employers navigate the complexities of non-immigrant and immigrant visas, it is crucial to ensure compliance with U.S. immigration laws and maintain clear communication with employees and immigration authorities. Whether working with an employee on an L-1, H-1B, TN, or Green Card visa, the goal is to facilitate a smooth transition that benefits both the employee and the new employer.

Keywords: employee sponsorship, visa transfer, visa sponsorship, green card, concurrent employment