H-1B visa is a non-immigrant visa that permits a U.S. company to hire workers in specialty occupations. The H-1B visa may be granted for up to 6 years. We sometimes get the following question from potential clients: Company X sponsored me for an H-1B visa and I now want to switch employers. Is this possible to switch employers or do I have keep working for Company X that initially sponsored me for the H-1B visa? Does the new employer have to file any forms to USCIS? Can I start working for the new employer immediately, or do I have to wait until USCIS decides the case?
Can I change the employers or do I have to keep working for the employer that initially sponsored me for the H-1B visa?
If your initial H-1B petition was approved by USCIS and you entered the U.S. in H-1B status (meaning that you started working for the H-1B employer who initially sponsored you for the H-1B visa on your start date), you can find a new employer who is willing to sponsor you for an H-1B visa. You do not have to keep working for the same employer who originally sponsored you for an H-1B visa. This rule applies if you were subject to the H-1B Cap selection.
I found a new employer. Does the employer have to file any forms to USCIS?
If you find a new employer who is willing to sponsor you for an H-1B visa, the employer will have to file a Labor Condition Application and Form I-129 to USCIS. While this is often called a “transfer” it is really a brand new application. If you want to have the petition decided quickly, either you or the employer can pay the Premium Processing Fee. This means, that USCIS will issue a decision on the case within 15 calendar days.
When can I start working for the new employer? Do I have to wait until USCIS decides the case?
You may start working for the new employer as soon as the employer files a non-frivolous petition if the following requirements are met:
- You were lawfully admitted to the U.S.
- The non-frivolous petition for new employment was filed before the end of the period of your authorized stay
- You have not been employed without authorization since your lawful admission to the U.S. and before filing of the non-frivolous petition
Congress created this rule to allow H-1B employees to start working for the new employer at the time they file the H-1B petition rather than having to wait for the adjudication. Normally we recommend that you wait until you receive the receipt notice before starting employment.
What is my immigration status while the H-1B petition is pending? What happens if the petition is denied?
If the petition is denied, you will have to stop working immediately.
Please see our blog post that discusses travelling while the transfer petition is pending.
I quit working for the employer who initially sponsored me for the H-1B visa but I did not find a new employer within the 60-day grace period. Can I return to the U.S. and start working once a non-frivolous petition is filed with USCIS?
If you quit working for your initial H-1B employer and you do not find a new employer who would file a new H-1B petition within the grace period (60 days from the date your employment terminated or your I-94 expiration date, whichever date is earlier), you will have to leave the U.S. If you later find an employer in the U.S. who is willing to sponsor you for an H-1B visa, the employer will have to file H-1B petition. You will only be allowed to enter the U.S. and start working for the new employer once the H-1B petition has been approved by USCIS and after you get an H-1B visa at a Consulate abroad.
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