Asian Journal- The Filipino-American Community Newspaper

ARE you feeling tied down to your current job because of your H-1B visa? Did you receive a job offer from a different company but don’t know what to do? The fact is: You CAN change employers while on an H-1B visa! What is important is that you and your employer follow the correct procedure necessary to do this.

Fortunately, the American Competitiveness in the Twenty-First Century Act (AC21) was enacted into law in 2000 and allows H-1B portability. This means that alien with an H-1B visa has an opportunity to move to a different employer. It does not mean that your visa is transferred from one employer to another. The new H-1B employer must first file a new Form I-129 petition for the alien before he or she begins working for the new employer. The application will include the alien’s pay stubs as evidence that there will be no gap in employment. There cannot be any gaps in employment. Oftentimes, employers/employees make a mistake of not filing the petition before the employee starts working for the new company. Failure to do so may lead to the revocation of an alien’s H-1B visa.

Since their H-1B visa was already counted against the 65,000 visa cap when they obtained the visa from the current employer, the new employer can still file for their H-1B visa even if the 65,000 visa cap has already been exhausted. Once your H-1B visa has been counted toward the visa cap, you will no longer have to wait the next year to apply.

Another common mistake is when the employers do not pay the employee they petitioned with the wage indicated in the H-1B petition. These aliens should receive salary that is in accordance to the industry’s prevailing wages. There are instances when aliens petitioned by employers turn a blind eye on this violation made by their employers because they are happy enough that they are able to work in the United States.

As with any H-1B visa, aliens are only allowed to work for the petitioning US employer and perform the tasks described in the petition. The duties you are to perform and the wages you are to receive should be in accordance with what was filed by the employer.