Common Misunderstandings Clarified: H1Bs and Change of Fields08 Sep 2016
Originally published 06.Sep.2013, this NewsBrief topic remains relevant to many MurthyDotCom readers.
One common area of misunderstanding in immigration law involves H1B workers who wish to move to a new position that is in a different field from the current H1B position. Foreign nationals and their employers often mistakenly believe that there has to be a similarity between the current H1B job and the prospective H1B position. In reality, however, there is no such limitation, as long as the individual has a related degree and otherwise qualifies for the new position.
Common Fact Patterns in H1B Changes of Field
I am on an H1B. I have a bachelor’s degree in computer science and a master’s degree in mechanical engineering. I have an H1B for my job as a computer programmer. I have an opportunity to change to an engineering position. Can I do this? I thought there was a requirement that the new job be the same or similar.
It is NOT necessary for the new H1B job to be similar to the current H1B job. What is necessary is for both jobs to meet the general H1B requirements for a specialty occupation. That is, the positions must require the minimum of a bachelor’s degree in a field of specialized knowledge. Of course, the foreign national beneficiary must possess the required degree or its equivalent and any other experience required for the particular position.
H1B Has Potential for Many Types of Jobs
Since many people have multiple degrees, they potentially could qualify for multiple types of H1B jobs. Additionally, many who have degrees in math, engineering, physics, or other technical areas have experience in information technology (IT) and work within that area. While they often qualify for IT-related H1B positions, they could also qualify for positions that more directly match their degree fields.
The same analysis applies when individuals return to school and obtain additional degrees after or while working in H1B status. It is fairly common for individuals with technical degrees to enroll in Masters of Business Administration (MBA) programs. Such individuals could move from existing H1B positions in the IT field to management positions requiring MBAs, or a position requiring a combination of both technical and management skills.
As should be clear from these examples, there is no need for the earlier job and the new job to be in the same or similar job category. The same or similar requirement applies to a different immigration option in the permanent residence (green card) context, under what is known as AC21 adjustment-of-status portability. This concept simply does not relate to H1B eligibility.
The applicable regulations provide H1B workers with a good deal of flexibility for moving to new positions, even if such a move would involve a change to a completely different field of occupation. Employers and H1B workers with questions regarding how to move to a new employer are encouraged to schedule a consultation with a Murthy Law Firm attorney.
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