By: Supriya Singh

H-1B Visa is a temporary non-immigrant visa that allows U.S companies and employers to temporarily hire nonimmigrants to work in “Specialty Occupations”. The “Specialty Occupation” requires application of  highly specialized knowledge. The nonimmigrants  working in specialty occupations are foreign professionals, possessing a bachelor’s or higher degree from an accredited college or university in the United States, or in equivalent in their country of origin.

The H-1B visa is an employer-sponsored visa and is granted for a cumulative maximum duration of 6 years. Initially the H-1B visa is granted for three years with an extension available for up to three additional years.  A nonimmigrant worker may extend the H-1B visa beyond the 6 years statutory limit for a period of three years if they have an I-140 petition approved, and for a period of one year if they have a PERM (Program Electronic Review Management) approved and pending I-140 provided the PERM was filed 365 days ago.

One of the frequently asked questions is – “If H-1B approval is employer-specific?” – The answer to this question is “NO”.  H-1B nonimmigrant workers residing in the United States can switch employers in the same occupation as many times as they want. Provided, that their new employer files an H-1B visa transfer petition on their behalf before the period of authorized day expires (INA §214(b)(1)).

I. Process for H-1B Transfer:

H-1B visa transfer does not mean that a nonimmigrant worker can transfer his existing H-1B visa petition from current employer to new employer. It means that their new employer acting as their sponsor must file a new H-1B visa petition. The nonimmigrant worker may begin their work as soon as the H-1B Visa is approved.

• Eligibility:
  The employers seeking to hire a nonimmigrant worker should make sure that the following requirements are met: (INA §214(n), 8 U.S.C. 1184(n)).

1. 1. The nonimmigrant worker must have entered the United States lawfully.
   2. The H-1B transfer petition must be filed before the period of stay on I-94 expires.
   3. The nonimmigrant worker must not have been employed illegally since their lawful admission to the United States and before the petition is filed.

• Cap-Exempt:
  H-1B Visas numerically limited (capped). The good news is that when transferring employers, employees are not subject to the annual H-1B cap because the nonimmigrant worker is already residing in the United States and were counted against the H-1B cap in the last six years INA §214(g)(6) & AC21§105.
  However in specific cases, where  the nonimmigrant worker’s previous employer was exempted from cap and the latter employer is not cap-exempt, the latter employer’s H-1B transfer petition will be a part of the H-1B cap lottery. 

• Procedure:
  The future employer must follow the following steps:

1. 1. Notify the bargaining representative for their employees that a LCA is being or will be filed by the employer. If there is no such bargaining representative, then the LCA should be posted in a conspicuous location in the area of intended employment. Such notification shall be posted on or within 30 days and no less than 10 days of filing a Labor Certification Approval (LCA). (20 CFR §655.734)
   2. Submit the LCA to the Department of Labor (DOL). The employers can request LCA submission by mail if they are physically disabled or lacks Internet access. Such request must be submitted to the Administrator of OFLC. (20 CFR §655.734)
   3. File an I-129 petition on behalf of nonimmigrant alien before their H-1B status expires.
   4. Complete Employment Verification Form I-9 for the new employee. (8 CFR § 274a.2)

II. What Next if Your H-1B Transfer is Denied?

A nonimmigrant worker can work for his new employer from the moment the H-1B transfer petition is filed and a Notice of Action receipt (I-797C) is received. He/she can continue to work the whole time the H-1B transfer petition is in progress and a final decision has been made. If the application is approved, the nonimmigrant worker continues working in his capacity for the new employer.

However, if the nonimmigrant worker started working for his new employer after receiving the Notice of Action receipt (I-797C) and later receives a notice of denial from the USCIS, the nonimmigrant worker can go back to his previous employer and continue working for the period his initial H-1B visa is valid. But if the previous employer refuses to take them back then the nonimmigrant worker loses their H-1B status and needs to return to their home country at the earliest. The new employer then has an option to request H-1B consular processing visa on behalf of the nonimmigrant worker. This means that once the USCIS approves I-129 petition, the nonimmigrant worker visits a U.S. consulate in their home country and get U.S. Visa stamp on their passport. To avoid the hassle of returning to their home country, it is recommended that the nonimmigrant worker join the new employer only after receiving the H-1B approval notice.

III. Switching Employers During the Green Card Process (PERM)

An employment based green card comprises of three stages:

1. The PERM labor Certification
2. I-140 Application supporting the nonimmigrant workers’ qualification and employers’ ability to pay the minimum wage as per the Prevailing Wage Determination approved by DOL
3. I-485 Adjustment of Nonimmigrant status application

As mentioned above, the first step in the process to get an employment-based green card is  getting a PERM Labor Certification. Through this process the Department of Labor verifies employer,  job location and  salary  The goal of PERM is to prevent employer from employing foreign labor who would be willing to work for lower salary thereby adversely affecting the U.S. labor market by displacing the American workers. However, the PERM process is more complex than it seems making it difficult to switch employers and get a PERM Labor Certification Transfer.

If a nonimmigrant worker is wishing to switch employer pending their PERM process, they need to understand that when an employer files a labor certification with the DOL, the employer confirms that there is a vacancy of a specific job position in their company for which the employer failed to find any qualified American worker who can fit in that specific position. When the PERM is approved by the DOL; the approval applies to the specific job position at the employer and not the beneficiary on the PERM application. If the nonimmigrant worker wishes to switch his employer after the PERM application is filed with the DOL, they must file a new PERM application.  PERM applications are not transferable from one employer to another.

However, §106(c) of AC21 read with INA §204 (j) provision allows nonimmigrant worker to change their employer if they:

• Have an approved or pending valid I-140 petition based on the employment-based EB-1, EB-2, and EB-3 category.
• Properly filed form 1-485, adjustment of status application, and the same has not been adjudicated for more than 180 days.
• Have employment in the same or similar job occupation classification as the previous job.

In determining whether a new position is in the same or a similar occupation classification as the offer of employment for which a petition was filed, the government will consider beneficiary’s:

• Prior education.
• Experience, training, certifications, or licenses.
• DOL occupational classification codes allocated to each job.
• Skills and technologies required to perform the assigned Job duties.
• Wages offered for each Jobs etc.

When a nonimmigrant switches their employer they must go through the PERM application process again. Good news is that after the PERM is certified with the new employer they can retain the priority date from the previous approved or pending I-140 petition. The non-immigrant may file their I-485 once the priority date becomes current.

A. Withdrawal of I-140 Petition by the Previous Employer

Determining if and when to switch employer during a PERM process is also a very significant decision as that effect a non-immigrants current H-1B visa validity. If a nonimmigrant worker switches job with an I-140 approval he/she can retain the priority date.

But a unique situation follows when a nonimmigrant worker switches employer with an approved I-140 petition and the previous employer withdraws approved I-140 petition within 180 days of filing the I-140 petition. In the said circumstances, although the nonimmigrant worker will be able to retain the priority date from the previous I-140 petition and be eligible for all the I-140 approval benefits,  they will no longer be eligible for the H-1B extension beyond the period of six years based on the previously approved I-140 petition. Therefore, it is recommended ensure the employer is aware of the consequences a withdrawal may have on non-immigrant worker visa status.

B. Switching Employer with an I-140 Approval and I-485 Pending

Another interesting situation arises when a H-1B nonimmigrant has ported to a new employer after I-140 approval and before filing I-485 adjustment of status application with the USCIS. The complexity arises when the priority dates become current even before the nonimmigrant employer started his PERM process with the new employer.

Under AC 21 §106, a nonimmigrant can extend his visa beyond the cumulative six years period in the following conditions:

• In three years increment if they are beneficiary of a pending I-140 petition and the priority date is not current and
• In one year increment if the I-485 has been filed and remains pending due to unavailability of an immigrant visa number.

To qualify for the lengthy adjudication delay exceptions by the USCIS, the I-485 must be filed within one year of the priority date being current. Now the complexity arises when the nonimmigrant worker has an I-140 approval, and their priority date becomes current before starting the PERM Process with the new employer. In the above scenario, the nonimmigrant’s will not fall under exception to qualify for lengthy adjudication delay and his H-1B visa extension beyond six years may be denied by the USCIS.

Thus, it very important to ascertain whether the priority date will be current soon when porting to a new employer with a previous I-140 approval as it will not only affect their employment based green card process but it will also affect the H-1B extension beyond six years.

Conclusion

The employment-based visa is complex and confusing when switching employers. The prolonged process adds up to situations which sometimes are not under nonimmigrant worker’s control. Similarly, sometimes the nonimmigrant workers are not aware of the consequences because of lack of in-depth knowledge of Immigration law. It is strongly recommended to know the immigration process and determine the pros and cons before switching employers to avoid any future complications. For assistance in transferring your H-1B application to another employer, or help transferring an employee please contact your trusted Chugh, LLP Immigration team.