Once an H-1B worker is in the U.S., s/he may decide to change employers. This is sometimes referred to as a "transfer" or "sequential employment."
- Your legal H-1B status ends the day after your employee status with Temple ends unless another employer has filed an H-1B Transfer Petition on your behalf
- The H-1B is “employer specific,” which means that if you change employers, the new employer must prepare an entirely new H-1B petition, which takes advanced planning and a process that could take several months if the new Employer requires a Prevailing Wage Determination (PWD) from the Department of Labor before they will proceed with an H-1B petition. Note that Temple University does not require a PWD.
- The H-1B regulation known as “portability” allows individuals already holding H-1B status to begin employment with a new employer once the new petition is filed with USCIS. Nevertheless, it is important to understand that filing a new petition under the portability provision can sometimes take 60-90 days if the new employer requires a Prevailing Wage Determination (PWD).
- Please let ISSS know if you plan on leaving Temple before the end of your I-797 approval notice. Federal law requires Temple to conduct record keeping on the H-1B petition.
- If there will be a gap of more than 60 days from the day you end employment at Temple and begin your new employment, you may have to leave the U.S. and then return once the new H-1B is approved. You will need to consult with the new employer and/or an immigration attorney for guidance. See below for information on a potential 60 day grace period.
- Please review Leaving Temple University for additional information
Continued validity of H visas after employer change
An H-1B worker who has properly changed employers since first entering the United States and has a valid visa annotated for the previous employer, may reenter the United States using that visa, provided they present a valid H-1B approval notice for the new employer upon reentry to the United States.
a. (U) After changing H-1B employers in accordance with USCIS procedures for making such a change, an H-1B visa holder may continue to use their original H-1B visa for entry into the United States. When applying for entry during the time when the new employment petition is pending, the visa holder must present a dated filing receipt or other evidence that a new petition was filed timely in addition to the visa. When traveling after the new petition has been approved, the visa holder must present the new Form I-797, Notice of Action, evidencing the approval of the change of employer in addition to the visa.
b. (U) An H-1B applicant can change employers while in the United States provided the following criteria were met:
(1) (U) The beneficiary was lawfully admitted to the United States;
(2) (U) The new employer filed the petition for the beneficiary before the expiration of their authorized stay; and
(3) (U) The beneficiary has not been employed in the United States without authorization after lawful admission but before filing such petition.
c. (U) After the filing of the new petition, the H-1B visa holder is authorized to begin employment with the new employer upon the filing of the petition with USCIS. If the new petition is denied, employment must cease. If the applicant's prior visa and petition have expired, the applicant is not eligible to receive a new visa until the pending petition has been approved.
Resigning prior to change of employer
In general, the validity of an H-1B worker's nonimmigrant status depends upon engaging in the employment described in the employer's H-1B petition.
Although the H-1B category is not set up to accommodate the "real-world" practice of changing employment, effective January 17, 2017 [see 81 FR 82398 (November 18, 2016) ), regulations give DHS the discretion to grant a limited "grace period" of up to 60 days, during which the worker and his or her dependents will "not be considered to have failed to maintain nonimmigrant status solely on the basis of a cessation of the employment on which the alien's classification was based." This grace period will apply only when each of these conditions exist:
- The duration of the "grace period" is the shorter of 60 days or the end date of the petition on which the employment ceased.
- The worker has not violated any other aspect of his or her nonimmigrant status.
- The "grace period" is available only "once during each authorized validity period."
Here is the regulatory provision [8 CFR 214.1(l)(2)]. Read it carefully:
(2) An alien admitted or otherwise provided status in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classification and his or her dependents shall not be considered to have failed to maintain nonimmigrant status solely on the basis of a cessation of the employment on which the alien's classification was based, for up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter, once during each authorized validity period. DHS may eliminate or shorten this 60-day period as a matter of discretion. Unless otherwise authorized under 8 CFR 274a.12, the alien may not work during such a period.
Note that the rule provides that "DHS may eliminate or shorten this 60-day period as a matter of discretion." H-1B beneficiaries who have ceased employment prior to their authorized period of stay, and who are concerned about their immigration status, should consult an experienced immigration lawyer for advice.
Another thing to remember about the 60-day H-1B grace period is that it does not work like the F-1 60-day grace period. Whereas the F-1 grace period is tacked on to the end of a student's program end date after completing a course of study, the new H-1B 60-day grace period is the sooner of 60 consecutive days after the cessation of work or the worker's "authorized validity period," i.e., whichever comes first. For example, if someone works until the end of their petition, they do not get a 60 day grace period at the end (they might have a 10-day grace period, but only if it was expressly granted on their I-94 either by CBP or USCIS). Here's another example: Say an H-1B's authorized validity period was from Jan 1, 2019 to Dec 31, 2020. If for whatever reason the H-1B ceases work on Dec 1, 2020, 30 days before the petition end date, the H-1B would have available only 30 days of grace period eligibility.
DHS states that "The purpose of the 60-day grace period is to enable the nonimmigrant workers to seek new nonimmigrant employment and thus be able to extend or change their nonimmigrant status while remaining in the United States, should their employment conclude during the relevant validity period."
Prior to January 17, 2017, an H-1B nonimmigrant who ceased H-1B employment for any reason prior to the petition end date and before another employer filed a "portability" petition on the worker's behalf would in most circumstances have been seen as having violated his or her H-1B status. This would render the worker ineligible for immigration benefits such as portability employment, change of nonimmigrant status, or extension of stay.
Regarding eligibility to begin H-1B portability employment while in a 60-day grace period, DHS states in the preamble to the final rule at https://www.federalregister.gov/d/2016-27540/p-555:
"Finally, the final rule at 8 CFR 214.1(l)(3) makes clear that the nonimmigrant worker, during either a 10-day or 60-day grace period, may apply for and, if otherwise eligible, be granted an extension of stay or change of status. The beneficiary may also commence employment under H-1B portability per § 214.2(h)(2)(i)(H), discussed in some detail below, if otherwise eligible. To further effectuate the intended purpose of these provisions, DHS is also making clarifying edits to the regulatory text at § 214.1(l)(2), and (l)(3)."