- Hui Zeng, Esq.
H-1B transfer adventure? What do you need to know?
Abstract: Many people have job-hopped upon the receipt of their H-1B approval. However, how do you smoothly transfer to a new employer while maintaining your H-1B status? When should you join a new company? Should you travel abroad during the change of employer process? This article will answer all of the above questions for you!
I. Can I change the employer before the end of my H-1B term?
Many people obtained an initial 3-year H-1B after the H-1B approvals. Many might have wondered if it’d be possible to change employers during the H-1B validity period, and the answer is yes. Through working with numerous clients, we noticed that many applicants have a misconception that you’d have to obtain approval from your current employer to make the transfer, or that there are a limited number of times that the transfer can be made. While you are currently in your term, that is, within the 3-year duration of the H-1B term, you do not need to obtain approval from your current employer and there isn’t a limit on the number of times that you can make an H-1B transfer. Also, the H-1B transfer can be made for the position and the employment term (part-time/full-time) that are different from your previous employer, and this will not affect the new H-1B transfer petition.
II. Do I need to go through the H-1B lottery again when I’m changing the employer?
Before we clarify whether if an H-1B lottery would be necessary as the applicant is seeking to change employer, let’s first verify the following points: whether your current and new petitions are cap-subject or cap-exempt H-1B?
A brief overview of the jobs that are not restricted by the H-1B quota.
When the employer is a higher education institution or non-profit organization associated with universities, or when the employer is a non-profit research institution or government research institution, under this condition, the H-1B quota limit does not apply and the H-1B is cap-exempt: e.g., non-profit organizations associated with Universities or within the Universities, such as laboratories, teaching hospitals, or research institutions, etc.
We advise that if you are unsure whether your current or new position falls into the above category, please consult an attorney to prevent any unforeseen impacts on the petition results!
After determining whether if your current or new position is limited by the H-1B quota, an analysis can be made based on the four following situations:
Based on situation 4, if the foreign employee worked for an employer that is restricted by the H-1B quota in the past 6 years, the H-1B lottery will not apply.
Example: Mason worked in company A in which he participated in the H-1B selection and was selected. After a while, Mason switched his employment to university B. Since university B was a non-profit institution, it was therefore not restricted by the H-1B quota. Meanwhile, Mason received an offer from a commercial company C in which the company was cap subject. In this case, if Mason has worked in company A which was restricted by the H-1B quota and within 6 years from the time company C submitted the application for employer change, Mason did not need to participate in the H-1B lottery.
According to the Portability Rule, all H-1B employees under the above situations can start working in the new company immediately after the USCIS receives the petition submitted by the new company.
III. When can I start working for the new employer? How will the application of the Portability Rule affect the H-1B transfer petition? What to do if my H-1B transfer is denied?
Can I start working immediately for the new employer upon the submission of the H-1B transfer? The answer is determined by the situation.
According to the Portability Rule from the “AMERICAN COMPETITIVENESS IN THE TWENTY-FIRST CENTURY”, the H-1B beneficiaries can choose to use the Portability Rule when they meet the following conditions, and to start working for the new employer without holding off for petition approval, when the H-1B transfer petition is received by the USCIS:
The applicant must enter the U.S. legally
The new employer must submit an H-1B transfer petition before the employee’s grace period
The H-1B employee should not have any record indicating illegal work from the time of entry and by the time of submitting the petition
Example: Mason is a foreign H-1B employee, and he currently works in company A. Mason’s H-1B effective date started from October 12, 2018 and will end by October 11, 2022. In the future, if Mason accepts an offer in May 2019 from company B in which the company will submit a petition for change of employer and presume that the company will have received the receipt notice from USCIS on June 1. In this case, Mason will not need to wait until the petition approval and can immediately start working for company B starting on June 1.
In summary, by applying the Portability Rule, the H-1B employee can start working for the new employer upon the submission for H-1B transfer, rather than wait until the petition approval. It is a great benefit from USCIS given to the foreign H-1B employees by applying this rule. However, please note that employees applying this rule also face greater risk. Here we are going to emphasize the impact of the Portability Rule on the status of H-1B employee when the new petition is denied:
(1) If the employee does not apply the Portability Rule and remains with the current employer, the denial of H-1B transfer petition will not affect the employee’s legal work status with the current employer. Also, the employee can remain working with the current employer.
(2) The employee starts working for the new company immediately upon the submission for H-1B transfer petition based on the Portability Rule. At the same time, the previous employer revoked the first H-1B petition as the employment ended and if at this moment the H-1B transfer is denied, then the employee will lose the legal work status in the U.S., and work must be stopped immediately.
Real Case: Mason is a foreign employee, and he currently works as an H-1B employee at company A that is cap-subject. The H-1B period started on October 12, 2018 and will end by October 11, 2021. While working with the current employer, Mason discovered a better opportunity and accepted an offer from company B that is also cap-subject. In this scenario, Company B will submit an H-1B transfer petition on Mason’s behalf and will receive a receipt notice on June 1, 2019. Next, Mason has 2 choices:
Choice A: Remain at company A until the petition result for company B is given.
Choice B: Apply the H-1B Portability Rule and start working immediately at company B upon receiving the receipt notice.
Mason’s H-1B status will not be affected if he chooses to remain in company A after receiving the receipt notice on June 1, 2019, and by August 1, 2019 received the denial notice of H-1B transfer petition submitted by company B. Mason can continue to work in company A while keeping the same H-1B effective term of October 12, 2018 to October 11, 2021.
However, should Mason opt for solution B and chooses to apply the Portability Rule to start working immediately at company B upon receiving the receipt notice while company A revoke his H-1B petition as the employment ends. At this time, if Mason receives a denial notice for his H-1B transfer petition which has been submitted by company B on August 1, 2019. In this scenario, Mason will lose his right to work and therefore, he will not be able to work in company B nor can he return to work at company A.
Therefore, to avoid the above dilemma, we advise the H-1B employees to not apply the Portability Rule unless they are certain that their H-1B transfer petitions will be approved; and to keep their statuses while staying at the current position, and not to work for the new company until the transfer is approved. Also, we advise you to use the Premium Processing service provided by USCIS to expedite the adjudication process. However, the applicant needs to note that USCIS will sometimes temporarily hold off the Premium Processing services, for example, the service was temporarily held off on September 11, 2018. Therefore, we advise all applicants to collect all the relevant information beforehand and take hold of the right opportunity.
If the new employer requests the employee to start working immediately, premium processing service is on hold, or when the new employee finds out that his/her employment is about to be terminated, in urgent situations as such, it is therefore inevitable to apply the H-1B Portability Rule. Under these circumstances, we will advise the H-1B employee to consult with experienced immigration attorneys to asses the situations and represent the cases to minimize the possibility of the H-1B transfer petitions being denied.
IV. Can I travel aboard during the period of my employer change?
In the previous example, in the duration of Mason’s employment at company A, the new employer company B has submitted an H-1B transfer petition on behalf of Mason and have received the receipt notice. At this time, if Mason decides to travel abroad, will he be able to return to the U.S. successfully?
If Mason has not applied the Portability Rule and upon receiving the receipt notice that he chooses to remain at company A, with an effective H-1B status. In this scenario, Mason can still enter the U.S. with the unexpired visa stamp from company A, or with the new visa stamp obtained from the consulate abroad.
Real Case: Mason’s H-1B effective date in company A started from October 12, 2018 and will end by October 11, 2021. The new employer will submit a new H-1B petition for Mason and presume it will have received the receipt notice on June 1, 2019, in which Mason will choose not to apply the H-1B Portability Rule and will continue to work at company A. In this scenario, before Mason’s H-1B status expires, (that is, October 11, 2021), he will be able to enter the country using the unexpired H-1B Visa Stamp of company A.
After receiving the receipt notice, If Mason chooses to apply the Portability Rule to start working for the new employer, then he will need the following evidence to enter the U.S.:
1. Effective H-1B Visa Stamp (current employer A);
2. Receipt notice of the H-1B transfer petition
At the same time, we suggest that the employee provides evidence issued by the new employer, proving that the employee is currently working for the company.
The above-mentioned problems on leaving the country during the H-1B transfer pending period and enter the country before the results determined by USCIS are summarized as follows:
In addition to the above situations, if the applicant terminates the employment (H-1B approval notice is deemed ineffective) with the current employer and leaves the country before obtaining the receipt notice, in this case, the employee will face great risk. First of all, if the USCIS did not receive the H-1B petition submitted for you by company B or have rejected the petition for any given reasons, then you will have no evidence proving that you have submitted the new H-1B petition. Also, since that you are not currently in the U.S., you will not be able to apply the Portability Rule in returning to the U.S. to work for the new company.
If Mason leaves the country after obtaining the receipt notice for the H-1B transfer petition submitted on his behalf by company B, and while abroad, he is notified of the petition result. In this scenario, will Mason be able to enter the country?
If the petition is approved, then Mason can use the H-1B approval notice of company B to enter the country;
If the petition is denied:
(1) If Mason has applied the H-1B Portability Rule to start working for company B, unless he obtains other types of visa, he will not be able to enter the U.S.
(2) If Mason has not applied the H-1B Portability Rule and he continues to work at company A, then, he will be able to use the unexpired H-1B visa to enter the country. (In the case that the Visa Stamp expires, Mason can still be admitted into the U.S. upon the renewal of the expired visa.)
All the above summed up our explanation in response to your questions on H-1B transfer! We hope this article can provide guidance and clarity for you in navigating the H-1B transfer process. For other questions, please continue to follow up on the newest articles.
We wish you the best of luck!
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Attorney Hui Zeng is a senior partner of Zeng Law Group, PLLC in New York. Attorney Zeng was named as the annual Rising Star for three consecutive years in 2017, 2018, and 2019 by Super Lawyers magazine of Reuters. Only about 2.5% of practicing lawyers in the U.S received this honor. Attorney Zeng was also selected as 2018 Leading Women Lawyers in NYC by Crain's New York magazine.
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