Leaving your Job on your H-1B or E-3 Visa

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Despite contrary opinion you can leave your job when you are on a H-1B visa or E-3 visa, it is however a difficult route especially if you are not aware of the immigration rules that govern leaving and changing employers.

As it stands now the rules are very strict when leaving an employer and remaining on the same visa. Specifically that you can be no longer than 10 days without an employer. This can be a little bit of a grey area as sometimes in the case of either being laid off as a foreigner or naturally leaving your job, the last portion of your official time at a company may actually be PTO (paid time off or vacation) or some form of long term official sanctioned leave that may be paid or unpaid. So in any of these cases it should still be the case that the 10 day countdown only begins once your employed connection with the company ceases. This differs from so called severance pay which may be paid in lump sum or increments but would at or after your final official date of employment and thus doesn’t impact the 10 day countdown.

The four most common reasons for leaving your US employer while on a non-immigrant visa is;

1. To return to your home country or other non US destination
2. To change employers within the US
3. A forced change to leave US employer either via lay-off, termination/firing or leaving due to bad circumstances
4. Change to another visa like the F-1 visa for studying or being eligible for a Green Card allowing flexibility of employment

Leaving the US
If you are leaving your job and planning to leave the US the biggest things to note are ensuring you continue to file a tax return with the IRS the following year and any other year you are earning US income. Additionally ensuring you don’t have any other outstanding debt owing is also ideal especially if you plan to return to the US or in the future want to achieve a status like Permanent Residency and US Citizenship.

Changing Employers
We have written extensively on the issues, process and timing of changing employers on either your H-1B visa or E-3 visa and the differences between the two statuses. The biggest thing to note is the concept of Portability and the fact that it explicitly is stated and applies in the case of the H-1B visa and allows someone to commence employment at a new employer even if the new petition is not approved and is just being processed. In the case of the E-3 visa, some people have received advice that the same process applies for the E-3 visa, however it is not a written statute so many people leave the country to get a new E-3 visa as a quicker route than the approval process of changing employers within the US.

Forced Departure From Employer
If you are laid off from your employer, there is no special rules that the US employer must follow for you as a foreigner so other than paying you severance at their discretion, extending your official final date and/or helping you in your job search, the 10 day rule still applies from your final date. However if they do lay you off, they are obligated to pay for your return trip to your home country and do it for a trip that does not violate your visa status rules. If you are terminated with or without cause it becomes a grey area as to whether they are obligated to pay this return fare, however they really should. Ultimately if you are terminated without cause or have been forced to leave b/c of unlawful work conditions, the US workplace rules still apply to you as a foreigner and you can report your employer company and specific people to the Department of Labor and USCIS. However unless it is a criminal case this won’t in and of itself help your ongoing visa status.

Changing Visa or US Status
If you are changing to a status whereby you are studying in the US or achieving a Green Card either via the Diversity Visa Lottery, the employer sponsored EB-1, EB-2 or EB-3 permanent visas or by marrying a US Citizen or Permanent Resident, then you are bound by the new terms of that status as you have that approval. Therefore you can’t operate under the new terms of that visa or permanent residency  until you receive approval to do so. There are various change of status forms and process and tasks that apply in each case including things like the I-129 form, I-485 form, medical visits, etc. depending on what you are changing too.

The proposed US Immigration Reform of 2013 proposes to change a lot of these things at least for the H-1B visa by increasing the time to change to 60 days and increasing the number of available Green Cards and pathway to them. However ultimately regardless of the passage of that bill which is still tenuous as of this writing, it is important for all foreigners working in the US to understand the implications of leaving your employer.

Cj

Multiple Employers on your H-1B or E-3 Visa

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One of the more common questions people have with their H-1B visa, E-3 visa and some other non-immigrant visas is how flexible it is and does it allow the person to;

a) Work part-time for an employer
b) Work for multiple employers
c) Need a new visa or approval for each employer
d) Have the employer and role pass the same tests as the initial role and employer

The interesting thing is the answer to all the above questions is YES. Now that is positive in terms of the first two points as it allows people to be sponsored legally for part-time roles and thus have time to serve and work for multiple employers. Incidentally one of the employers could be a regular a full-time role and the other could be part time.

However while there is not a need for a whole new H-1B/E-3 visa stamp for each new employer if they come subsequently, they do need to be approved by the Department of Labor to get the LCA and USCIS via I-129 if done within the country for both visa types. In the case of the E-3 visa if done outside the US only the LCA is needed and in both cases if the role is done at the same time as the initial role in terms of the US Consulate interview, then both/multiple employers will actually be mentioned on the visa stamp itself in the passport. If the role(s) is subsequently approved by the USCIS then the person will receive an approved I-797 form which can serve as official proof for the right to work at that employer.

Of course it should be noted that because this official approval is required things like the Bachelor’s Degree Equivalence and Specialty Occupation conditions still apply for the E-3 Visa and while for the H-1B visa, subsequent employer approvals don’t count against the H-1B annual quota, the company, role, pay level, etc. will face the same level of scrutiny as any other role.

In terms of likelihood of approval that is a tougher one to answer as fewer people go down the legal route of getting approval for multiple employers. Most because, foreigners tend to only work for a single employer at a time, although a minority do unofficially work for multiple employers. In general if the role and pay level is seen to past all criteria as well as the company and there is no issues with you as a candidate then there is little reason the USCIS should deny an I-129 petition. Additionally this would apply seeking approval to work at more than 2 companies, however am sure there may be an unofficial limit whereby the USCIS may stop approving or even processing petitions.

If you get approval for a second employer part-time but then decide to leave your first employer and work full time at your new employer, technically speaking you should get a new LCA for the full time role being different from the part time role and possibly a new I-129 approval after that from the USCIS. Practically speaking a lot probably don’t follow this route as assume the original approval was fine but hopefully this won’t result in any issues down the line with things like Permanent Residency petitions.

In terms of when you can start working for a secondary employer, with the H-1B visa and the portability provision that applies in changing employer cases, that should allow you to officially start working upon filing your I-129 to USCIS and receiving the receipt date. Of course you would have to stop if the petitions was outright denied. As with changing employers on the E-3 visa, the start work time for a secondary employer is murky. Some may say you can just follow the same guidelines as the H-1B visa people, however that is not officially written anywhere so others may give you advice to wait until the I-129 petition is approved.

Cj