Tag Archives: change of employer

Extending, Renewing or Changing Employers on your H-1B Visa

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A common question we get asked is the process of renewal or extension of the  H-1B Visa and these days with all the lay-offs particularly changing employers on and H-1B visa. So we will attempt to best answers those questions for you.

RENEWAL:

The H-1B is for a period of 3 years which is able to be renewed once giving a maximum period of 6 years.

However following legislation enacted in 2000, extension of H-1B status past the six-year limit where a labor certification has been pending for 365 days or longer, regardless of whether or not a Form I-140 which is the permanent residency or green card application has been filed.

Usually this is not necessary as this should not take that long but does by the H-1B holder some extra time in this case. We recommend you ask your employer to have filed your Green Card Application by this stage.

The difference between H-1B status and getting your visa stamped are often confused. Getting H-1B approval implies that you are authorized to work in the U.S. and getting visa stamped implies that your passport has been authorized to enter the U.S so in essence the ability to travel.

As mention the general H-1B authorized period is three years and the date stamped on your passport would be close to this period.

CHANGE OF EMPLOYER OR EXTENSION:

H-1B extension is the extension of authorization to work in the U.S but is NOT the actual visa. To have the ability to travel across the U.S you need to get your visa stamped against the new extension, this is known as H-1B revalidation.

So if your visa has been extended beyond the 3 year period within the US, this is where you would need to get your visa stamped at an overseas consulate or embassy, if you travel abroad.

If changing employers or extending stay through USCIS, your employer has to prepare a new Form ETA 9035 Labor Condition Application (LCA) and Form I-129. There are filing fees for the I-129 form. ($320 currently)

The full list of H-1B Application costs are here.

If changing employers it also has to proved that you have recent pay stubs (at least 60 days old) and last year W2 forms (if applicable). If you do not have recent pay slips, it may need to be explained to USCIS as to the reasons why this is the case. They do consider leave of absence and long term approved sick leave.

It should be noted that this petition has to be filed BEFORE your last day of employment (and thus your termination date) recorded with USCIS. If this is after, you will be considered out of status and unable to change employers on your current H-1B.

If you are laid-off and USCIS is notified you will considered immediately out of status so as mentioned in other posts, it will be good if this is your circumstance to have your employer to delay notification to USCIS so you can have further time to find a role.

A merger and/or a sale of the company sponsoring your H-1B visa is not necessarily a change to your visa conditions and you may not need to do anything. If however you are performing different duties to what was on your approved Labor Condition Application, then this can be a violation.

USCIS sends Form I-797 Approval Notice to the employer or attorney of record as notification of the decision on the extension request.

Portability allows H-1B visa holders (or H-1B status) to actually begin work for a new H-1B employer as soon as the new employer files this change of employer application. This is an excellent benefit as does not result in many weeks and sometimes months of no work (OR SALARY) while USCIS takes is time to process this. This ability has been since 2001.

In terms of travel, a H-1B holder may re-enter the U.S. with an H-1B visa showing a different employer to join a new employer, but only if the new employer has filed an H-1B application in accordance with the above conditions and timings for you.

I hope this best answers this weird part of the H-1B visa terms of operation and I wish you well in either your;

– renewal of your H-1B Visa
– extension of your H-1B Visa
– change of employer of your H-1B Visa

CJ

SPECIAL EDIT: FIND OUT THE COMPANIES THAT YOU PROBABLY SHOULD NOT APPLY TO THIS YEAR BECAUSE IT WILL BE ALMOST IMPOSSIBLE FOR THEM TO HIRE FOREIGNERS ON H-1B VISAS

Are you on a H-1B Visa or E-3 Visa and now Laid Off?

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I wrote earlier in February about this very issue and the main ideas I had to help you find new employment so the posts I recommend reading are;

– Laid Off on an E-3 or H-1B Visa where I talk about the situation and idea where you can get your current employer to help and also an option in Canada
– Extending, Renewing or Changing Employers on your E-3 Visa this is also  helpul to H-1B holders or applicants as the process is very similar
– Information about the Top 100 Companies that sponsored H-1B visas last year where we discuss how this may help you and the genesis of the list which we made FREE for you
– The Top 200 List of US Visa Employers Last Year is a raw list of the companies that is beneficial to E-3 visa applicants as much as H-1B and even J-1.

Now I have received a lot of emails in recent times about;
How long people have?
How can they extend their time to look for a job?
Is the transfer process easy and not too costly?
Can you transfer to B1/B2 status to allow you more time to find a position?
Do I have access to any unemployment benefits since I pay Social Security/Payroll/FICA Taxes?
Can I work while the transfer process is underway?

I will try and document the answers to these questions briefly on one page, although a lot of these answers are in more detail elsewhere in the blog in other posts and you can go the All Posts List which documents all entries and visa information by title.

1. How long do I have?
Technically you only have 10 days to find a new employer once your current employer notifies USCIS of your termination date. We explain in the above post more fully how you can ask you employer to delay this notification to give you more time.
NB: Over time through guidance and enforcement changes, and post the financial crisis, the e-3 visa rules continued to more resemble the h-1b visa rules. So the 10 days have become more like 60 days. However always be cautious as you never know what might be enforced especially in the post 2016-era of US immigration.

2. How can you extend your time to find a job?
Will this really follows on from question 1, so the delay in notification is one option. Leaving and re-entering the US on the visa-waiver program is another option. Transferring to a B1/B2 visa or even another category (although you have to meet their individual requirements) can also potentially extend your time.

3. Is the transfer process easy and not too costly?
It certainly could be easier, I mention in the above linked post the entire process and forms involved. Eassentially it involves getting a new LCA form and a filing form for transfer of employer to USCIS which I think costs around $300 although this constantly changes. It can be relatively straightforward in what you do but it can be a long process.
Of course if travel is involed if you plan to get a new visa outside the country this of course will amplify costs.

4. Can you transfer to B1/B2 status to allow you more time to find an employer?
You certainly can trasnfer to B1/B2 if you do this application to USCIS. Visapro states USCIS officers have been allowed to exercise their discretion to grant you another nonimmigrant status, if you apply for change of status within 10 days after you are laid off.

5. Do you have access to any unemployment benefits as you pay Social Security taxes?
No you don’t in any shape or form if you are on any non-immigrant visa. Yes this is completely unfair given you are forced to pay these taxes just like a US worker but you have no claim to any benefits.

6. Can I work while the transfer process is underway?
For H-1B visa holders you can given the application has been filed and you have your approved LCA from the Department of Labor. However your transfer application could still be denied potentially by the USCIS.

For E-3 visa holders the answer is a little more strange as it is largely undocumented. So some USCIS officers will say the rules are the same as H-1B as they are for most other things when not fully documented as seems to be the general direction of the visa. However other officers say this is not the case and you have to wait for your transfer. This combined with the transfer visa application cost has caused many of E-3 to just go to Canada and apply for a new visa with their new employer instead.

Good luck if this is your predicament…I wish you all the best 🙂

CJ

**look I should say again I am not a lawyer but I answer these questions to the best of my ability having gone through the visa process many times and having shared experiences with many others so I want to save you guys as much money as I can with potential legal costs. Some of the policies change a lot and I try to keep us as much as I can but I do miss a few changes.