New York Lawyer's Legal Updates

How to Change H1B Employer: H1B Transfer

Author: Employment Immigration Attorney Alena Shautsova

Life happens: your offered a new job with a higher pay or better benefits, you want to take this new job, or in some cases have to, but you’re unsure of how to go about doing this. Statistics is clear: those attempting to handle their immigration cases themselves much more often find themselves in difficult situations, than those who used a competent counsel. Nevertheless if you wish to change your H1B employer, you need to comply with a few prerequisites in order to ensure your eligibility for the transfer process.

First, your potential employer must file a I-129 petition requesting classification and an extension of your stay in the US. Although typically you will not be able to begin working until an H-1B Visa is approved for your specific employer, in this case the general ruling does not apply, if you were previously approved for H-1B Status and seek to work for a new H-1B employer. You will be authorized to accept employment from the new H-1B employer provided your new employer files the I-129 petition. This is commonly known as a port, or porting H-1B employment authorization. However if the employers I-129 petition is denied your H-1B status will be terminated and you will have to return to your home country.

In order to ensure an approved I-129 petition the following conditions must be satisfied:

  • You must have been lawfully admitted to the US
  • Beneficiary to a non-frivolous petition for new employment
  • You must not have engaged in any unauthorized employment after being admitted to the US before your new H-1B is filed

Some employers prefer to wait for the grant of the new petition, some will allow immediate employment upon porting H-1B employment authorization. This is completely up to the employer and does not affect the outcome of the I-129 so do not worry if your employer chooses to wait until your petition is granted. It is however common practice to port H-1B employment authorization as it can take several months for USCIS to render a decision no your petition.

To avoid possible complications, retain a copy of the mailing receipt and a copy of the file sent to USCIS regarding the new petition. USCIS will send you a receipt in the mail Form I-797 stating that they have received your I-129 petition, this is absolute incontestable proof for an H-1B port. This ensures that your H-1B has been accepted for processing. It must be noted that I -129 I filed by the employer, not the employee. An employee may file a request for extension of status, if necessary, but the I-129 is a petition filed by the employer/company.

Additionally, when your H-1B status is about to expire and you are forced to change employers before extending your status, your ability to port H-1B employment authorization is only available for the duration of your status. It is only upon the approval of the I-129 petition that you may obtain an extension of H-1B status. Changing of your employer and filing the I-129 petition will prevent you from accruing unlawful presence in the US, however porting H-1B employment authorization does not extend your I-94.

It is best to file your new I-129 petition before the old petition is revoked or withdrawn by the old employer. This will ensure full portability of your H-1B status and prevent ineligibility of an extension for your H-1B status. This does not mean that you have to continue working for your first employer until the employer you wish to change to files your I-129; just that the petition of your first employer is still in effect and not revoked. Unfortunately, there is no “grace period” in this case. However, USCIS does have the ability to exercise a favorable discretion. If you have to rely on the discretion of USCIS, make sure you are still a person of good moral character, stay out of trouble, pay your taxes, and if possible show that you can bring something of value to the US that an ordinary citizen could not.

If your extension is denied by USCIS after porting your H-1B employment authorization, you will have to leave the country until the petition of your new employer is approved, and then resume employment after being re-admitted to the US. Upon reentry you will present your old H-1B visa and they will issue you a new one and you can continue working. You must prove admissibility and like all H-1B requests, conform to the limits on your temporary stay, this means that you cannot exceed six years of physical presence in the US in H-1B statuses*. After approval of an H-1B change of employer petition you will not need a new visa which shows the name of your new employer, you can apply for US admission with your previous H-1B visa pursuant to your previous H-1B employment. Lastly you must present the new Notice of Action or Form I-797 to prove that you are authorized to work for the new employer.

*It is possible in certain situations to extend the H1B status beyond the 6 year period. Consult with an attorney regarding this issue.

02 November 2013
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