Can I Use my Work Visa to Enter the U.S. if I Changed Employers?

When a foreign national wants to work in the United States they will need to apply for a U.S. visa. For many common visa categories, such as H-1B, L, O and P visas, the foreign national must first get an approval from U.S. Citizenship & Immigration Services and then get a visa stamp in their passport to allow them to travel to the U.S. The visa stamp is often annotated with the name of the specific employer that the foreign national plans to work for.

A common question we receive from clients is whether their visa stamp is still valid after they change employers in the U.S. For example, if an H-1B visa holder gets a visa stamp while working for Company X and then they port to a new employer through a change of employer petition, are they permitted to still use the visa stamp that is annotated with Company X’s name even though they now work for Company Y? The good news is that foreign nationals often can use their existing visa stamp to enter the U.S., even after they change employers. While there is no law that specifically allows this, there is policy guidance provided by a legacy INS memo and Customs & Border Protection that supports the idea that a foreign national may use a valid visa stamp to enter the U.S. even after changing employers.

The way this works in practice is that the foreign national would get a new approval from USCIS and then they could travel with their new approval notice and the old visa stamp. A legacy INS Aytes memorandum from 1997 addressed this question and stated that the policy of the immigration service for H, L, O and P visas is that the visa is valid even if the foreign national’s employer changes, as long as the foreign national changed employers in the same visa classification. For example, if you have a valid H-1B stamp and you change your status to O-1, you would not be able to use the H-1B visa to enter the U.S. However, if you have a valid O-1 visa and you change employers but are still on O-1 status, you can use the existing O-1 visa and the new O-1 approval notice to enter the U.S.

In recent years, U.S. Customs & Border Protection has confirmed that for most petition-based categories, such as H-1B, L, O, P & R,  they will admit foreign nationals with an approval notice for the new employer and a valid work visa that lists the old employer as long as they are in the same visa classification. They are also willing to allow TN visa holders to add new concurrent employers at the border if they present an I-797 approval notice from USCIS or a new employer letter with evidence that the applicant qualifies for the TN. There are some risks to this approach, as there is nothing definitive in the law that requires Customs & Border Protection to admit the foreign national with the new approval notice and visa stamp listing the old employer. However, if the foreign national is not able to get to a U.S. Consulate in a timely manner to get an updated visa stamp, these policy statements provide a legitimate basis for the foreign national to try to enter with the existing visa listing the old employer.