Every year, thousands of H-1B visa holders travel to the United States to work for American employers. While many of them enjoy a mutually beneficial working relationship, others end up seeking other opportunities. This could be due to layoffs, dissatisfaction with their new employer, or a better offer from another company.
If you find yourself in this position, you may wonder if you can change jobs without jeopardizing your H-1B status. The answer is yes, but it’s not a straightforward process. There are several requirements that you need to follow to ensure that you don’t violate your status.
In this blog, we’ll explain some things you need to know about changing employers while on H-1B status. We’ll discuss the steps involved, the potential risks and benefits, and how a Los Angeles immigration lawyer can help you navigate the legal requirements.
Is Your H-1B Status Tied to a Particular Employer?
If you currently have H-1B status and have been laid off or are thinking about changing employers, the process isn’t as simple as accepting an offer at a new company and starting right away. To ensure that you comply with U.S. immigration laws, you need to secure a new H-1B status by following steps similar to those you did when applying for the first one.
This includes finding a new employer who is willing to:
- Submit a Labor Condition Application (LCA) to the Department of Labor and
- File a petition with the United States Citizenship and Immigration Services (USCIS)
Whether this new petition counts against the current H-1B cap depends on whether your initial petition was cap-subject. If it was, a petition from your next employer wouldn’t be counted again. Therefore, it may be approved even if the cap has been exhausted at the time of filing.
Some workers decide to transition from a cap-exempt to a cap-subject position. For example, if you worked for a university or affiliated nonprofit (and therefore are not subject to the annual H-1B visa quota) and now want to work for a private company, you will need to qualify for one of the available visas. If the quota has been exhausted for the current fiscal year, you won’t be able to take the new job until you are chosen in a new lottery, which is held in March of every year. Further, even if you are chosen, and a petition upon your behalf is filed, the earliest date you could start working is October 1 of the year of the lottery, or when your petition is approved, whichever is later, so the timing for when the employer files the petition and when you start working has to be carefully planned.
When Can You File a New H-1B Petition?
Unlike your initial petition, you can seek H-1B status with a new employer at any time. As soon as you get confirmation that your petition has been received by USCIS, you can start your new job (assuming that the petition also requested that your stay in the U.S. be extended and you haven’t engaged in unauthorized employment).. You may want to consult a Los Angeles immigration lawyer before making the move because if your petition isn’t approved and you’re already at your new workplace, you may find yourself out of status.
How Long Does It Take to Make the Transition?
Once your petition has been submitted, it can take several weeks to receive confirmation from USCIS that it has received your petition. How long it takes for the USCIS to approve your new H-1B status can vary from any time from a few days (best case scenario if an extra $2500 filing fee is paid for “premium processing”) to literally years in a worst case scenario if premium processing isn’t requested. The exact time can vary from one case to another and depends on factors like employment location and which USCIS regional center is processing your petition.
Again, unlike your original petition, you can start working for your new employer while you wait. This move, known as porting, is legal, but there are a few things to watch out for:
- If you travel outside of the United States while your new H-1B petition is still being processed, make sure you have copies of your new petition with you, as you will need to present them when you return. Without them, you may face difficulties at the border, which can cause significant delays and complications.
- In any event, you will almost always need an unexpired H-1B “visa” stamped into your passport by a U.S. consulate to return to the U.S., though it need not be issued in the name of the petitioner for whom you are currently working. Further, Canadian citizens do not require visas, and neither, in certain circumstances, do persons traveling briefly to Canada or Mexico, but you must consult with legal counsel for the details.
- If your new petition is denied after you’ve switched employers, contact an immigration lawyer immediately so you can explore your options.
Fortunately, since you are already in the United States on H-1B status, the process is a little easier than your original petition. You also don’t have to inform your current employer that you plan to change jobs.
What Happens if You’re Laid Off?
If you get laid off while holding H-1B status, you’ll have to find a new employer to sponsor your visa within 60 days or risk losing your legal status. This can be a pretty stressful situation, especially if you don’t have any job offers lined up.
If you don’t find another job, you may be able to apply for a change of status that lets you remain in the country. Some H-1B workers apply for a change to F-1 status so they can attend U.S. universities while others, depending on their circumstances, may qualify for a change to H-4 (family member of an H-1B visa holder) or even B-2 (tourist) status.
Whatever the case may be, it’s best to submit your change of status application as soon as possible, preferably while you are still employed. You may be required to leave the country and obtain a new visa if you can’t prove to USCIS that you were working to maintain your status.
Should You Get Your Own Immigration Lawyer?
If you decide to seek legal advice for the job switch, you may wonder if you can use the attorney who handled your original H-1B petition paperwork. Unfortunately, since this lawyer was hired by your employer, they aren’t in a good position to advise you if you later opt to work elsewhere. Further, and in any event, the attorney handling the new petition must be hired, and paid, by, your new employer. Nevertheless, you can certainly suggest to the new employer what attorney it should hire, and that will seldom be the attorney who handled your prior H-1B petition. You may also retain the attorney hired by your new employer (or a different one) yourself, but you can only pay them for advice pertaining to your legal status, and not for H-1B petition itself.
Contact an Experienced Los Angeles Immigration Lawyer
While changing employers while in H-1B status is possible, it’s important to follow the correct procedures and be aware of the potential challenges. An experienced Los Angeles immigration lawyer can guide you and/or your potential new employer through the process and help you address any immigration challenges you encounter en route. The Immigration Law Office of Los Angeles, P.C., can provide you with the guidance and support you need to ensure a smooth and successful transition. To learn more or schedule a consultation with one of our experienced H-1B lawyers, please call (213) 375-4084 or contact us online.