The global economy has changed. The old has given way to the new and as always, the law struggles to catch up. When it comes to H-1B status, however, US immigration law is making a valiant effort to keep up with the times. If you are in the US in H-1B status, you enjoy a benefit called “H-1B portability” — subject to certain restrictions, you can change jobs without having to leave the US and start the H-1B visa process all over again.
H-1B Transfers
Strictly speaking, there is no such thing as a legal transfer from one job to another on the same H-1B visa status. What you can do, at least under certain circumstances, is have your new employer petition for a new visa and wait for the USCIS to issue a Receipt Notice for the petition, indicating that it has received it. You can start working as soon as you receive the Receipt Notice, as long as you are in legal status at that time.
You generally don’t need permission from your old employer to have a new employer file a new H-1B petition on your behalf (although some employees are subject to non-compete agreements, etc.). If things go smoothly, you won’t be required to leave the US while you are waiting for the Receipt Notice. A new H-1B petition will not extend the total amount of time you are permitted to stay in the US, however.
The 60-Day Grace Period
If you lose your job, the USCIS allows you an automatic 60-day grace period, during which you can apply for new work without falling out of status and being required to leave the US.
A few caveats apply:
- If your I-94 expiration date is earlier than the end of the 60-day grace period, the I-94 governs and you will be expected to leave the US by your I-94 expiration date.
- The USCIS can shorten or cancel the 60-day grace period in its sole discretion (this discretion is seldom exercised, however, unless the H-1B worker is fired for misconduct or breaks the law in some way).
- If the 60-day grace period or the I-94 deadline (whichever is applicable) expires without you receiving a Receipt Notice, you will be out of status as soon as the deadline expires, and you will be expected to leave the US immediately. Talk to an immigration attorney if you anticipate this scenario.
Denial of Your H-1B Transfer Request
If the USCIS denies your H-1B transfer petition, you can remain at your old job if your employer will accept you. You can also appeal the denial, or you can leave the US and apply for a new visa from abroad. Keep in mind that if you are attempting to transfer to a new job because you anticipate that your old employer is planning to lay you off, your old employer may be willing to help you make a smooth transition because that would relieve him of the responsibility of paying for your trip home.
“Bridging” Petitions
H-1B “bridging” means submitting more than one H-1B petition through more than one employer so that you have two or more H-1B petitions pending at the same time. You might want to do this if you seek multiple jobs offers so that you can choose the best offer among them.
Certain limitations apply. You won’t be able to use bridging to keep resetting the 60-day grace period clock to zero, for example. Additionally, multiple petitions are not considered independent of one another — a later petition can be rejected based on the rejection of an earlier petition. A single employer is not allowed to file more than one H-1B petition for the same employee (for two different positions, for example) unless the position is not subject to any H-1B cap.
H-1B “Benching”
Some employers, especially in the IT industry, try to game the system by hiring an H-1B worker for the purpose of outsourcing him to various third-party employers on a project basis. Many of these employees are not working and remain unpaid most of the time. The USCIS considers this “benching” behavior an abuse of H-1B status, and if you submit a new H-1B petition, it is likely to demand pay stubs to prove that you and your employer are not involved in “benching.”
We’re Here to Help
Despite the great increase in flexibility generated by H-1B portability, limitations do exist, and a major mistake could not only shut down a promising opportunity for you, in some cases, but it could also result in you losing legal visa status in the US and being ordered to return home. A skilled H-1B immigration lawyer can help you drastically reduce these legal risks.
