Once you’ve landed a job in the United States that will sponsor your H-1B visa, you might find letting go of that job difficult, no matter what the circumstances are. Luckily, you have a few options when it comes to getting a new sponsoring job. One of the great things about working in the US is that you are never limited to the job you have, and you have legal allowances on your side to make sure that you find a job that is fulfilling and rewarding.
Like any other member of the American workforce, you’re not stuck in a job hoping that it works out for the best. If you’re in a situation where you’ve been laid off or terminated unexpectedly, or if you’ve found a better job offer, here are a few tips to help you navigate through the process of changing jobs while on an H-1B visa.
What is an H-1B transfer?
As you begin your search for new employment, you may read about H-1B transfers. Despite common misconceptions, you can’t transfer your H-1B visa. When you get a new job on an employment-based visa, the only thing that transfers is you—from one job to another. However, the process of applying for a new H-1B visa after changing jobs is commonly referred to as an “H-1B transfer”.
When you accept a new job, you will need to file a new H-1B visa petition. While this sounds tedious, you have a few benefits working in your favor since you’ve already received a H-1B visa with your first employment in the US:
- You are not subject to any visa caps.
- You can petition any time of year.
- You can file more than one petition simultaneously, also known as “bridging”.
- You can begin work at your new job once you have a receipt notice from USCIS. This notice confirms they have received your petition for a new visa, regardless of whether or not your petition is approved, also known as “porting”.
- You do not need permission from your current employer to file a new H-1B petition. However, you may still be bound by non-compete agreements and contracts. If this is the case, be sure to contact a knowledgeable labor attorney.
Your new employer will need to file an H-1B petition to USCIS on your behalf, just like your previous employer did for your current visa. You will also need to show proof of your legal status at the time of filing. Some of the required documents to prove this may include your three most recent pay stubs, a copy of your current H-1B approval, and a copy of your passport, visa, résumé, I-94 records or social security card.
It is important to keep in mind that this new H-1B petition will not extend your stay in the US, and you are still subject to the departure date on your I-94 record. However, you can use this opportunity to file for an extension.
What to do if your H-1B transfer petition is denied
If your H-1B transfer petition is denied, you can continue working for your current employer who sponsored your first visa, if they are willing to keep you on. A denied petition does not change your current H-1B visa status—you are still able to remain in the US until the return date stated on your I-94 card. You also have the option to appeal the decision. Another option would be to leave the US and file a new H-1B petition.
Keeping your options open with H-1B bridging and porting
As mentioned above, job seekers can file multiple H-1B petitions at the same time. This is sometimes referred to as bridging the petition. The process might be something like this:
You leave Company A and start the H-1B process with Company B. In the meantime, Company C gives you a better offer, and you decide to pursue your H-1B through Company C.
Until your I-94 card expires, you can file new petitions while previous petitions are still pending. This provides you with some flexibility to pursue a company that is a better fit for your talents and skills.
In the scenario above, the outcome of Petition B relies on Petition A, and Petition C relies on Petition B. If your status changes due to an expired I-94 date in Petition A, then all other pending petitions will be denied. The denial of Petition B will mean an automatic denial of Petition C.
Porting allows you to begin your new job before your new H-1B petition has been approved, provided that you are not engaged in any unauthorized employment. An employer must submit an I-129 form on your behalf to begin the porting process. This form allows your new employer to employ you or amend the details of your non-immigrant visa status.
This provision is part of The American Competitiveness in the 21st Century Act (AC21), signed into law in 2000, and allows for a smoother transition for you and your new employer. However, this does not guarantee that your new petition will be approved. It is also important to keep in mind that the I-129 form can only be filed while you maintain your current H-1B status.
Benching H-1B employees
Recently, USCIS has put extra focus on limiting visa fraud committed by employers who “bench” H-1B workers. This practice is common in the IT and consulting industries, and means that an employee is hired for specific assignments or jobs, but then is unpaid until they are given their next assignment.
While an employee is benched, they are still technically employed, but they are not working or receiving any wages. This is considered an abuse of an H-1B visa because the limited number of visas approved each year should be given to individuals who are needed to work on a regular basis with their company. Legally, an H-1B employer is required to provide their employees with a continuous salary and benefits.
This puts benched workers in a tricky situation if they want to change jobs or extend their visa status. To cut down on benching fraud, when filing for a new H-1B visa, you are required to show your most recent pay stubs. If you’ve been benched, chances are you haven’t been getting paid.
If you are considering a position with a company that lends out your skills as a “consulting” service, protect yourself and ask them to provide you with proof in writing that you will receive a regular paid salary and benefits regardless of your assignment status.
If you do find yourself in a benching situation, you can report the issue and receive protections against retaliation or loss of H-1B status. Read more about benching on the USCIS website: Combating Fraud and Abuse in the H-1B Visa Program.
What to do if you’ve been fired or laid off
First things first, don’t panic. If you suddenly find yourself without a job, you have up to 60 days to find new employment or change your status, or until the expiration date of your current I-94, whichever comes first. After that, your legal status will have ended, and you’ll be required to leave the country.
The 60-day grace period is a new rule that became effective at the beginning of 2017. The grace period begins on the day your employment has ended with your sponsoring employer, regardless of any severance pay you may receive. This 60-day period is only granted once per visa validation period. Conditions may apply depending on certain employment-based nonimmigrant and immigrant visa programs. You can read more about the grace period by visiting the USCIS website: USCIS Publishes Final Rule For Certain Employment-Based Immigrant and Nonimmigrant Visa Programs.
While looking for a new job, you can request a change in status or an extension of your H-1B visa to allow yourself more time. One change in status option is to file for a B-1 visa. This is a temporary nonimmigrant visa status, and it can allow you more time in the US—anywhere from six months to one year. However, under this status, you are not allowed to engage in paid employment. This is only a temporary solution until you can find a new job, which is when you’ll need to file for a new H-1B visa. Also, keep in mind that you may have to consider premium processing to change your status before the 60-day grace period ends.
If an extension of your H-B visa is denied, you may have to leave the country and re-enter with a new H-1B petition under a new employer. At the very least, you will be able to obtain a new I-94 card with a new departure date. According to The Society for Human Resource Management, your employer does have an obligation to provide you with the “reasonable costs of transportation” back to your last foreign residence.
Finding the right fit
In the United States, provisions are in place to encourage visa holders to find jobs that fit well with their skills and talents. Don’t feel that you’re limited to your current job just because of your visa status—particularly if you think your skills are more suited to another employer.
Regardless of why you’re back on the job market, feel confident in the fact that you have options. As long as you’re transferring to a new company in a field similar to the one you left, and you’re in good standing with the law, your new H-1B process should be relatively seamless.
Be sure to check out our article, How To Land A Job That Will Sponsor Your H-1B Visa, for tips that will help you find the right fit for your future in the American workforce. Should you or your new employer have any questions or concerns about your employment-based visa status, please reach out to us—we’re happy to help.
Looking for Immigration Help?
Stump & Associates is Oklahoma City’s most respected immigration law firm. With more than 30 years of experience, we know how to handle cases just like yours.
Comments are closed