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.
The most important thing to remember about changing employers while on an H-1B visa is this: There should be no gaps in your employment because your H-1B allows you to stay in the US legally.
Bander Law Firm, LLP has been providing immigration services for over 15 years and has multilingual staff who can communicate effectively in Tagalog, Spanish, Sinhala, and Mandarin. Our firm provides free initial consultation on immigration matters, except criminal-related matters. Please feel free to call Bander Law Firm, LLP at 213-873-4333 to schedule your free initial consultation. To learn more about immigration concerns and read previous columns, visit www.BanderLaw.com.
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Atty. Joel R. Bander is the partner of Bander Law Firm, LLP. With over 15 years of litigation and immigration experience, Mr. Bander is a leading litigator and accomplished trial strategist. He has successfully handled numerous cases before Federal, State, Civil, and Criminal Judges and has participated in hundreds of arbitrations and trials.
Bander Law Firm, LLP Downtown office address: 1055 W. 7th Street, Suite 1950, Los Angeles, CA, 90017. Tel: (213) 873–4333 Fax: (213) 873–4334. San Gabriel Office address: 1045 E. Valley Blvd., #A215, San Gabriel, CA 91776. Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it .
( Published on December 20, 2008 in Asian Journal Los Angeles p. C2 )
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