The H-1B visa program allows U.S. employers to hire highly skilled foreign workers for specialty occupations. However, many H-1B employees may seek new job opportunities and wonder whether they can change employers while on an H-1B visa. The answer is yes, but the process involves specific legal steps and considerations.
Understanding H-1B Portability
The ability to change employers while on an H-1B visa is referred to as H-1B portability, which was introduced under the American Competitiveness in the Twenty-First Century Act (AC21). This provision allows H-1B workers to begin working for a new employer as soon as the new employer files an H-1B transfer petition with the U.S. Citizenship and Immigration Services (USCIS), rather than waiting for full petition approval.
Process for Changing Employers on an H-1B Visa
Changing employers on an H-1B visa involves several steps, and it is crucial to follow each one to maintain lawful status in the U.S.
Step 1: Obtain a Job Offer from a New Employer
Before initiating the transfer process, the foreign worker must secure a job offer from a new U.S. employer willing to sponsor their H-1B visa.
Step 2: New Employer Files an H-1B Transfer Petition
The new employer must file an H-1B transfer petition (Form I-129) with USCIS, which includes:
- A certified Labor Condition Application (LCA) from the Department of Labor
- The foreign worker’s current H-1B approval notice (Form I-797)
- Copies of the worker’s passport, visa, and I-94 record
- Proof of the worker’s qualifications (degree, transcripts, etc.)
Step 3: Begin Employment with the New Employer
Under the AC21 portability rule, the H-1B worker can begin working for the new employer as soon as USCIS receives the H-1B transfer petition (provided the worker was already in valid H-1B status at the time of filing). However, if the petition is ultimately denied, the worker must stop working for the new employer and may need to leave the U.S.
Step 4: USCIS Decision and Approval
USCIS will process the petition and issue either an approval notice (Form I-797) or a Request for Evidence (RFE). If approved, the worker can continue employment with the new employer without interruption.
Key Considerations When Changing Employers on an H-1B Visa
Changing H-1B employers comes with important legal and practical considerations:
1. Maintaining Legal Status
- The worker must remain in valid H-1B status at the time of filing the transfer petition.
- Any gap in employment between leaving the previous employer and joining the new employer should be minimized.
2. Cap-Exempt vs. Cap-Subject Employers
- If the new employer is subject to the annual H-1B cap (such as a private company), and the worker was previously employed by a cap-exempt employer (such as a nonprofit or academic institution), the new employer may need to go through the H-1B lottery process.
3. Pending Green Card Applications
- If the worker has a pending employment-based green card (PERM or I-140 approval), switching employers may affect their green card process. The new employer may need to restart the green card application process unless portability rules apply.
4. Travel Considerations
- If the worker travels internationally while the transfer petition is pending, they may need to wait for approval before re-entering the U.S.
- If their visa stamp has expired, they must obtain a new visa stamp based on the new employer’s approval notice.
Common Mistakes to Avoid
- Not filing the transfer petition before leaving the current employer: If there is an employment gap, the worker may fall out of status.
- Working for the new employer before USCIS receives the transfer petition: This could result in unauthorized employment.
- Assuming the transfer is automatically approved: While most transfers are processed smoothly, there is always a risk of USCIS denial.
Conclusion
Yes, H-1B visa holders can change employers through the H-1B transfer process, but it requires careful planning, compliance with legal requirements, and timely filing of necessary documents. To ensure a smooth transition, it is advisable to consult an experienced immigration attorney, such as Mantra Law Office, for guidance on H-1B transfers and any related immigration concerns.
For more information or assistance with your H-1B transfer process, contact Mantra Law Office today.
