H1B Change of Employer: Process Guide

Under your initial H1B visa you will only be permitted to work for a specific employer in the United States. As such, if you change jobs, your new employer will need to file a fresh petition on your behalf prior to the expiry of your existing status. This is known as an H1B visa transfer.

 

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Accordingly it is a prerequisite to transferring to a new employer that you have an existing H1B visa still in place when you accept your new job offer. Equally, you will need a job offer from a new U.S. employer to initiate the H1B transfer visa process. You cannot transfer to another employer if you have not yet been offered the job.

Whilst you do not need permission from your former employer for the H-1B visa transfer, you will need to adhere to any relevant contractual non-compete clause that you may have previously agreed to with that employer.

What is the process to change employer under an H1B visa?

As previously indicated, your new employer will be required to file a fresh petition on your behalf, prior to the expiry of your existing H1B visa status. Your new employer will also have to file a Labor Certification Application with DOL, prior to filing the necessary petition.

Although you will not need to file a fresh online application, you will still need to submit various documents in support to USCIS, including, for example, a copy of the offer letter from employer, a copy of your degree and any other certificates, as well as your updated resume.

What are the pitfalls when changing employer under an H1B visa?

Changing employers can be costly, complex and time-consuming, although you can commence working for your new employer whilst USCIS is processing the new petition filed on your behalf, so long as they have been issued with an I-797C Notice of Action receipt.

That said, even if you have already commenced your new job role, this does not mean that the H1B transfer process is a foregone conclusion. By way of example, in determining the speciality occupation for which the H1B transfer visa is sought, USCIS may not be satisfied that you have the requisite qualifications and/or experience.

Alternatively, if you are found to have conducted any unlawful acts during your time in the U.S, or otherwise violated your immigration status, your petition for an H1B visa with a new employer will again probably be denied.

As such, it is recommended that you do not start working for any new employer until you have received H-1B visa transfer approval from USCIS, not least because you must cease working with that employer if the H-1B visa transfer petition is denied. You may then be considered “out of status.”

The H1B visa is a nonimmigrant work visa for overseas graduate level workers, including experienced professionals, wanting to travel to the United States to work in a speciality occupation that requires theoretical or technical expertise, such as engineering and computer science.

Any professional level job that usually requires a bachelors degree or higher as a minimum entry requirement can potentially qualify as a specialty occupation. That said, if you do not hold a bachelors degree you can still show degree equivalence through work experience and/or other qualifications.

In other words, the nature of the specific duties you will be required to undertake for your U.S. employer will be so specialised and complex that the knowledge required to perform these duties is usually associated with the attainment of a bachelor’s or higher degree.

You must also be able to demonstrate that you are uniquely qualified for the position in question because of your field of study or work experience. Needless to say, you will also need the offer of a job from a U.S. employer who is prepared to sponsor you, and who can then petition for a H1B visa on your behalf.

Are there any other immigration options if changing employer?

Having established yourself in your new job role, you may decide that you would like to live in the U.S. on a more permanent basis. Under an H1B it is in fact possible to petition for permanent residency in the United States, ie; obtain a green card, whilst you are there.

With many nonimmigrant visas you must maintain an intention to leave at the end of your stay. The H1B visa, however, is statutorily defined as a “dual intent visa”. This will allow you to lawfully enter the U.S. under a time-limited nonimmigrant visa, albeit with immigrant intent.

H1B change of employer transfer process

The H1B visa is what’s known as a petition-based visa. As such, your prospective U.S. employer will need to file on your behalf Form I-129, Petition for a Nonimmigrant Worker, with U.S. Citizenship and Immigration Services (USCIS).

Once the petition is approved, USCIS will send your sponsor Form I-797, Notice of Action. Only once approval has been granted by USCIS can you submit your online application and attend an interview with your local Embassy or Consulate for your H1B visa.

Please note, however, that the approval of a petition does not guarantee that you will be issued a visa.

Your U.S. employer will also be required to obtain what’s known as labor certification from the Department of Labor (DOL) before filing the petition, and only once approval has been granted by DOL can your prospective employer petition to USCIS.

The Labor Certificate Application requires the employer to attest, amongst other things, that it will comply with the following labor requirements:

  • The employer will pay you, as the beneficiary, a wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for your position in the geographic area in which you will be working.
  • The employer will provide working conditions that will not adversely affect the working conditions of similarly employed U.S. workers.

As an H1B visa holder, you may be initially admitted to the U.S. for a period of up to three years. However, if you continue to meet all the relevant conditions, this time period can be extended, although generally speaking the maximum permissible period will not go beyond a total of six years.

Please note, however, the validity period of your actual visa relates only to the time in which you may travel to the US and apply for admission. It does not indicate how long you may remain, although it may allow for multiple separate admissions over a period of time.

Having been granted entry to the US by a customs official at the port of entry, typically they will provide an electronic record of your arrival date, the class of admission and advise you of the permitted duration of your stay.

This article does not constitute direct legal advice and is for informational purposes only.

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