H1Bs Cannot Be “Transferred” – Misconceptions Around H1B Employment Change20 Apr 2017
MurthyDotCom regularly addresses common questions and misunderstandings about immigration law. Questions regarding H1B status and changing employers often arise that refer to “transferring” the H1B. This term is frequently used, even by some immigration attorneys. The H1B is not actually transferred from one employer to another when an individual changes a job, however. The meaning is generally understood when people refer to an H1B transfer, but it is important to understand the actual process. This should help readers to avoid misunderstandings as to procedure and requirements, based on the mistaken belief that the H1B is somehow transferable from one employer to the next.
When an individual is already in H1B status and plans to change employers, what technically is filed with the USCIS is a new H1B petition, reflecting a change in employment, generally with a request to extend the H1B status. There is nothing that transfers from one employer to the other, with the exception of the foreign national employee, him/herself.
Permission Not Required from Earlier Employer
Since there is nothing transferred between employers, it is not necessary to obtain permission from one employer to move to the other. The new employer must simply file a new H1B petition with the USCIS. In order to obtain the H1B extension of status in the United States, the foreign national beneficiary must show that s/he is in status at the time of filing. This can be evidenced by including the most recent pay stubs.
As of January 17, 2017, upon the cessation of employment, a foreign national in E-1, E-2, E-3, H1B, H1B1, L-1, O-1, or TN status has a grace period of up to 60 days, or until the exiting validity period ends (i.e. the expiration date on the latest I-94), whichever is shorter, to file for a change of status or change of employer. This can be used once per authorized validity period of a petition.
Of course, this ability to obtain a new H1B approval without the permission of the former employer does not override any contractual obligations in terms of notice, non-compete agreements and the like, which the employee may have entered into with that employer. These matters are often governed by both federal and state aspects of employment law.
Not “Just a Transfer”
It is frequently assumed that what is called a transfer is somehow easier than the first H1B petition filed on one’s behalf. Many individuals say that their petition is “just a transfer”. Again, this is incorrect. All H1B filings must be complete, and must fully establish the employee’s eligibility for the H1B category and the employer’s eligibility and compliance with the H1B requirements with respect to the offered position. There is not an abbreviated transfer filing that is approved more easily than an initial H1B filing.
Are Multiple H1B Filings Allowed?
The Murthy Law Firm often receives questions that involve a person working for Employer A, who has a pending H1B case filed by Employer B, who would prefer to work for Employer C. In such a scenario, how would an H1B be transferred to Employer C if the USCIS has approved the H1B petition with Employer B? Again, there is the misconception that something gets transferred. H1B employees assume that if there are two cases pending, there will be a problem getting the H1B transferred to the appropriate employer. This is just not the case. As long as there is an unbroken chain of status, the H1B may be approved as an extension of status with an I-94 attached at the bottom of the H1B approval notice.
Multiple filings are not without complications. Multiple filings can create confusion when trying to track an individual’s status. There are issues with what is known as bridging when there are multiple filings. If one is relying on the filing from Employer B as a bridge in status to carry him/her over to Employer C, the Employer B petition has to be approved in order for the Employer C petition to be approved as an extension of status. Therefore, it is best to get legal advice to determine how to best coordinate these matters.
What If I Do Not Have Recent Pay Stubs?
People often want to leave their H1B employers when they are being unlawfully benched or otherwise not paid under the requirements of the H1B labor condition application (LCA). They worry about whether they can transfer the H1B if they are not being paid. Again, there is no concept of a transfer, as such. If there are no recent pay stubs, and once the 60-day grace period has passed, it may not be possible to establish that the individual has been maintaining valid H1B status. This, however, does not prevent one from obtaining an H1B petition approval through a new employer and regaining valid, legal H1B status by traveling abroad and reentering on a new I-94 card. (It is recommended that one discuss this matter with a knowledgeable lawyer, as it is sometimes possible to overcome this problem.) The new I-94 card would be issued at the port of entry (POE). A new H1B visa stamp would need to be acquired for the passport, if the prior H1B visa stamp is expired.
Conclusion: What Happens to My H1B if I am Abroad?
Questions arise on the topic of traveling abroad, or come from those who are outside the United States. An individual might have had an H1B filed by an employer, but for one reason or another, never entered the U.S. or worked for the employer. One might have been in the U.S. as an H1B employee at some point, but then left to live abroad. Individuals such as these ask about getting their H1Bs transferred from companies where they either never worked or are no longer working. Since there is no transfer, paystubs generally are not a requirement for filing an H1B petition through a new employer. There may be questions regarding whether or not the new employer’s case is subject to the H1B cap, or whether a cap exemption applies, based on the earlier H1B approval. These issues are beyond the scope of this article.
If one is abroad, the new company must file a new H1B petition. There typically is no pay stub problem in connection with the petition for a person living abroad, since there is no request for of an extension of H1B status when one is not in the United States. (Lack of proper pay records may be an issue at the consulate in connection with an H1B visa application for one who was in the U.S. as an H1B employee, but was not complying with her/his terms of status.) The H1B employee would need a new visa, if the earlier H1B visa stamp is expired.
This summary of H1B matters should prove helpful to many MurthyDotCom readers. It is important to their processes for foreign national workers to understand that their H1Bs are not actually transferable.
Originally posted in 19.Aug.2011, this MurthyDotCom NewsBrief has been updated for our readers.
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