Immigration Rumor :
New Visas NOT Required for H1B Employer Change
Posted Aug 06, 2004
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We at The Law Office of Sheela Murthy, the MurthyChat, and the MurthyForum have recently received questions as to whether an H1B employee must leave the United States when changing employers, or must obtain an H1B approval in order to extend his/her status or start working for a new H1B employer. Many of these questions and the rumors surrounding them may result from the termination of the visa revalidation program in the U.S. A flood of ensuing panic and questions arose after articles in Indian newspapers incorrectly advised that an H1B employee had to return to his/her home country and obtain a new visa stamp each and every time there was a change in employer. This information is simply wrong.
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I-94 Card Determines Validity of Status in the U.S.
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As we explained in our July 23, 2004 MurthyBulletin article, Revalidation Ends: Extension Urged, available on MurthyDotCom, it is no longer possible to get a new visa stamp in one's passport from within the U.S. It is entirely possible in many situations, however, to get a new I-94 card, extending or changing status, from within the U.S. It is the H1B petition approval along with the I-94 card that determines whether a person has a particular legal status in the United States. Of course, one has to comply with the terms of that status. The visa stamp in the passport is only a travel document. It is presented at the Port of Entry (POE), an airport for example, to request admission to the United States. At that time the individual obtains a new I-94 card that determines the length of time that s/he may lawfully remain in the U.S., unless there is a filing for an extension of stay or a change of status. Once lawfully inside the U.S., the visa stamped in the passport has no bearing on one's legal status.
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Each H1B Employer Must File a New H1B Petition
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When an H1B employee wants to change employers in the United States, the prospective new employer must first file a new H1B petition. Although many people refer to this as an H1B "transfer," there is no separate transfer procedure under law. Each H1B is employer-specific and requires the filing of a new H1B petition and an approval from the USCIS to work for the new H1B employer. While a person may begin working for the employer upon filing under H1B portability, in order to maintain / extend an employee's H1B status the employee will need a new H1B petition approved and a new I-94 issued with the H1B approval notice to continue to work for the new employer. If this is accomplished within the United States, there is no need for travel abroad, nor is there a need to apply for a new visa stamp at the U.S. consulate abroad for the issuance of a new visa stamp in the passport.
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Visa Stamp of Prior Employer Remains Valid
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If the H1B employee has an unexpired H1B visa stamp in the passport with a prior employer, that visa remains valid until its expiration date for use at the time of reentry from abroad to work with a new H1B employer. Of course, the new H1B employer has to file and obtain a new H1B petition approval for that employee to work at its work location/s. Even though the visa stamp will contain the name of the prior H1B employer, it may be used at the time of entering the United States with the H1B petition approval of the subsequent H1B employer / sponsor, as long as the H1B employee is eligible for entry in H1B status. The important thing to remember here is to request that the POE Inspector stamp the I-94 card valid until the date of the H1B approval notice with the present employer and not the earlier visa validity date stamped in the passport with the earlier employer. To avoid this problem, some H1B employees prefer to obtain a new H1B visa stamp from a U.S. consulate. This new visa stamp carries a notation with the name of the new employer and a new validity date.
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We at The Law Office of Sheela Murthy, P.C. hope that this detailed analysis puts many fears, rumors, and questions to rest on this issue. We are pleased to be able to review and analyze the articles carrying the erroneous information to clarify matters for the benefit of our MurthyDotCom and MurthyBulletin readers.