The H-1B visa program is a popular pathway for foreign workers seeking employment opportunities in the United States. However, as the recent mass layoffs in the tech industry have shown, not all job situations are secure. These layoffs affected software engineers and other professionals working in the U.S. on an H-1B visa, which raised a lot of questions:
- Can you change jobs on an H-1B visa? Or do you have to stick with the sponsoring employer?
- If your employer lays you off, do you have to leave the country?
In this blog, we will provide an overview of the H-1B visa program, discuss the requirements for changing jobs while on an H-1B visa, and explain how a Los Angeles immigration lawyer can help you navigate the transition.
H-1B Visa Requirements- an Overview
The H-1B visa is available for various specialty occupations that require theoretical or technical expertise, including IT, architecture, engineering, and medicine. To obtain one, you must meet the following requirements:
- Job Offer From a U.S. Employer: You need a job offer from a U.S. employer who will act as the petitioner for the visa application.
- Specialized Knowledge or Skills: The job must involve specialized knowledge or skills that typically require a minimum of a bachelor’s degree in a specific specialty or equivalent education and/or experience.
- Educational Qualifications: You must have the required academic qualifications for the job, typically a bachelor’s degree in the required specialty or higher, or its equivalent in education and/or experience.
- Labor Condition Application (LCA): The U.S. employer must file an LCA with the Department of Labor, which outlines the job title, salary, and working conditions for the H-1B visa holder.
- Admissibility: You must meet the admissibility requirements for entry into the U.S.,
H-1B status is usually (but not always) granted for three years, assuming that your employer requires your services for that long with the possibility of a three-year extension. This means that you may be able stay in the U.S. for up to six years in H-1B status. After this time, you generally must leave the country for at least one year before being eligible to apply again for H-1B status. However, that time may be extended if an application for labor certification or permanent residency was filed upon your behalf over a year ago (and hasn’t been denied) or a petition for immigrant worker has been approved upon your behalf.
It’s important to note that the H-1B is a non-immigrant visa, meaning that it does not provide a direct path to permanent residency or citizenship in the U.S. Nevertheless, you may work in the U.S. in H-1B status while you pursue permanent residency.
Does Changing Jobs Affect H-1B Status?
If you want to change jobs as an H-1B visa holder, you must find a new employer willing to sponsor you. This employer must file a new H-1B petition with USCIS, and you will have to obtain a new H-1B visa stamp if you are outside of the U.S., unless you are a Canadian citizen.
It’s important to note that H-1B visa holders are also subject to the “portability” provision, which allows them to change employers and begin working for the new employer as soon as the new H-1B petition is filed, without waiting for the petition to be approved. However, certain conditions must be met for this provision to apply. They are as follows:
- The new employer must file a new H-1B petition before the worker’s current authorized stay expires.
- The worker must not have worked without authorization since their last admission to the U.S.
- The worker must have previously obtained H-1B status or a visa on account of being chosen in the H-1B lottery or his prospective employer must be “cap-exempt” (for example, a non-profit university or non-profit university affiliate or non-profit research organization)
If these conditions are met, you may begin working for the new employer as soon as the new H-1B petition is filed. However, if the new H-1B petition is denied, you must stop working for the new employer immediately and may be required to leave the U.S. if you don’t have another valid immigration status.
What If You Lose Your Job While in H-1B Status?
If you lose your job, your status is immediately affected. Since the H-1B status is tied to the specific employer who sponsored it, losing the job means that your status is no longer valid. However, you may be eligible to remain in the U.S. for a limited period of time to find new employment or make arrangements to leave the country.
Termination of Employment
You may continue to remain in H-1B status for 60 days after your employment is terminated or until 10 days after the date your current period of authorized stay expires, whichever is sooner. If you can’t find new employment within this timeframe, you must leave the U.S. unless one of the following exceptions applies:
- You’ve located a prospective employer who can file an H-1B status transfer petition;
- You change your H-1B status to a dependent one if you have a spouse in a valid nonimmigrant status in the U.S.
- You apply to change or “adjust” your immigration status. An immigration attorney can advise you as to what other status may (or may not) be available to you
Changing jobs on an H-1B status can be a complex process that requires careful consideration and planning. To begin with, you need to understand the legal requirements and restrictions associated with transferring to a new employer. Consulting with an experienced immigration attorney can help ensure a smooth and successful transition to your new job.
At the Immigration Law Office of Los Angeles, P.C., our lawyers can provide you with skilled and qualified representation when you change jobs on your H-1B visa. We can:
- Help you evaluate whether your new job offer meets the H-1B statusrequirements
- Prepare and submit the necessary paperwork on your behalf
- Represent you if the petition is denied
To learn more or schedule a consultation, please call (213) 375-4084 or contact us online.
See Also: Making the Move: Changing Employers on an H-1B Visa