One of the more complicated aspects of being in the U.S. on an employment-based visa is the level of scrutiny and specificity it takes to be approved. Immigration law plays out according to a strict set of rules. Life, on the other hand, is not always so clear-cut.
When you enter the U.S. under one set of rules and life takes you in another direction, you might want to consider consulting with an immigration lawyer to have the best chance of seamlessly transitioning to your new pathway without losing the ability to reside in the U.S.
What is the H-1B visa category?
The H-1B is a temporary nonimmigrant visa category that allows employers to petition for highly educated foreign professionals to work in specialty occupations that require at least a bachelor’s degree or a foreign equivalent. These often include jobs in fields including mathematics, engineering, technology, and medical sciences. The initial duration of an H-1B visa classification is three years and may be extended for a maximum of six years.
The H-1B visa program allows U.S. employers to fill certain specialty occupation positions with foreign nationals. Each year, the H-1B program has a numerical cap of 65,000 new visas, with an additional 20,000 petitions filed on behalf of beneficiaries with master’s degrees or higher from a U.S. institution of higher education who are exempt from the cap.
Before an employer can file a petition with USCIS to sponsor employees under the H-1B category, they must take steps to ensure that hiring the foreign worker will not harm U.S. workers by filing for a labor certification with the Department of Labor as well as provide their existing workers with notice that they intend to hire H-1B workers. As you can tell, the residency of a foreign national in the U.S. as the beneficiary of an H-1B visa is specific to the job they hold. So what happens if they want to change jobs?
Can you change jobs if you have an H-1B visa?
Foreign nationals in the U.S. under the H-1B visa program must always have an employer sponsor. If they want to change jobs, it must be for another employer who can and will sponsor their visa. To do so, the new employer must file their petition with the DOL and/or USCIS, depending on where they are in the process of labor certification for the position. While this is commonly referred to as a transfer, there is no real difference in the employer’s application process whether the employee is currently a visa holder under the H-1B program or not.
However, when an employee is already a visa holder under the H-1B program, they are not subject to the cap, which can benefit both the employer and the employee. Employers do not need to worry about the lottery process, which can make prospective employees more attractive and competitive in the labor market.
What can go wrong when changing jobs on an H-1B visa?
Because employees who are in the U.S. as a beneficiary of the H-1B program are already approved, they can immediately start working for the new employer once the petition is filed. The assumption is that it will be approved and, since they are not subject to the caps, they should have no problem remaining eligible.
However, even the most minor paperwork errors can cause delays or even denials when it comes to labor certifications or petitions for H-1B workers. If the employer’s petition is denied, the employee is at risk of being out of status, which can lead to removal proceedings.
To reduce the risk of complications during the petition process, employers should consider working with a business immigration attorney. This way, employers can avoid common pitfalls that lead to wasted application fees, unnecessary delays, and tarnished relationships with highly qualified talent.
Can you transfer from a J-1 visa to an H-1B visa?
Sometimes a foreign worker may enter the U.S. under the J-1 visitor program but become qualified for the H-1B program while in the U.S. or decide they want to remain in the U.S. after building a strong connection to a company, organization, or industry. When that happens, the foreign national will need to start the H-1B application process from the beginning; however, their experience as a J-1 visitor may make them a more attractive candidate to multiple employers, which can increase their chances of successfully becoming an H-1B beneficiary.
If the J-1 visa has a home residency requirement, then the employee must either return home for two years before applying under the H-1B program or apply for a J-1 waiver.
The H-1B visa program provides a number of benefits both to U.S. employers who struggle to find qualified talent as well as foreign workers who choose to benefit from the opportunities that are available to them through the program. If you need more information about H-1B eligibility or its application process, schedule a consultation with the business immigration attorneys at Farmer Law today.