VISA SPOTLIGHT: CHANGING H-1B EMPLOYMENT

One of the easiest ways for an H-1B visa holder to run into trouble with his or her visa status is to fail to comply with immigration regulations when switching employers or changing the terms of his or her employment.

The most difficult problems are often created when someone changes jobs without taking care of immigration issues. In fields like computer programming or physical therapy, it is not unusual for an individual to move frequently from employer to employer. But for an H-1B visa holder, each change can present challenges.

The first basic rule to note is that an H-1B is employer specific. In other words, it is only valid for the petitioning employer and only entitles the recipient to work for the employer approved by the INS. That means that each time a worker moves to a new employer, a new H-1B approval is required. It is possible to apply for a change of status to switch employers from the US without having to leave and get a new visa stamp, however. But it is important to remember that the process involved will be pretty similar to getting an H-1B visa from scratch.

At one time, it was thought that changing H-1B employers meant that a new visa stamp is needed the next time someone leaves and reenters after a change of status in the US. The INS and State Department now make it clear that as long as the visa remains unexpired and the applicant remains in H-1B classification. Note that someone who changed from another visa to H-1b status in the US (such as from F-1 to H-1B) and never has had a visa stamp will still need to get an H-1B visa at a consulate.

Whether the applicant for a change of status can work for the new employer while the application is pending is a question with no clear answer. More than 20 years ago, the courts said that work for a new employer while a change of status application was legal. However, the INS has never agreed to this and takes the position that such work is illegal. Consequently, many immigration lawyers take a conservative view on this and tell their clients not to start work for the new employer until the change of status is approved.

What about the H-1B cap when a change of status is requested? The INS has stated that the limit on the number of H-1B visas does not apply in this situation. However, if one leaves an employer and waits more than 30 days to apply for a new H-1B visa, the cap would apply again.

Also, the new H-1B 0 worker retraining fee would be due once again for a new employer (assuming the new employer is not otherwise exempt from the fee).

What if you change employers and then decide to go back to the first employer? The news here is good. The H-1B petition continues to remain valid until it expires or until the employer has it revoked. The INS takes the position that if neither of the above has occurred, one can resume work for the first employer without filing a new petition or an amendment.

Another common question is what to do when several employers file H-1Bs for a worker. Let’s say that two employers successfully file an H-1B and the worker enters to work for Company 1. After coming here, the worker decides to go work for Company 2 instead. Even if the worker never worked before for Company 2, the worker can switch to Company 2 without the need for a new petition. As noted above, a revocation of the petition by Company 2 or the expiration of the visa approval period for Company 2 would mean a new petition is required.

What about the case where an employee accepts a job with a second employer without giving up the first position? There is no legal reason why this cannot take place. An H-1B worker can work for several employers simultaneously if desired. However, each employer must have a separate approval for the worker to work there. Also, the INS does not recognize "co-employer" arrangements so if this is the case either one employer must designate itself as the petitioner or each employer must file a separate petition.

There are many times when a change in the nature of one’s employment will trigger the need to file either an amendment to an H-1B petition or a completely new petition. The INS position is that if the change in employment is "material" then an amendment must be filed. So, for example, if there is a significant change in job duties, then a new petition will probably be necessary. Also, being transferred to a different legal entity within the same corporation would trigger an amendment. Also, in certain cases, changing job locations could require an amendment.

Mere changes in job titles without a serious change in job duties will probably not require an amendment. The same holds true for raises in salary unless the change is so great that the INS presumes that the position is really a new one.

Note that changes in the corporate structure of a company could mean that a new H-1B petition must be filed. The general rule is that if a new legal entity is created, a new petition is required. This would be the case, for example, if a company is sold and the new company dissolves the old company without assuming its liabilities. A merger that results in the creation of a new company might also mean that new petitions should be filed. If the new company is what in corporate law is called a "successor in interest" then a new petition is normally not necessary. Note that changes in a company’s name will not trigger the need for an amendment or refiling, but an amendment is useful in order to avoid confusion when the worker reenters the country later on. As the issues here are quite complex, it is best to consult with an immigration law with a corporate law background or an immigration lawyer who can check with corporate counsel in order to determine how an H-1B petition is affected. Before the ink even dries on a corporate closing document, all of a firm’s visa holders can be rendered illegal aliens if these issues are not explored first.

< Back | Next >

Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.