Working in the US while holding H-1B Specialty Occupation Status can be extremely tricky. Please be sure to reach out to your ISSS contact with any questions that you may have.
Nonimmigrants currently in H-1B status with one employer can begin employment with a new employer as soon as the new employer files a non-frivolous I-129 petition for new H-1B employment, under H-1B "portability" provisions. The new employer and beneficiary do not have to wait for the new petition to be approved for the new employment to begin. If the new petition is denied, however, "portability" work authorization is automatically terminated. To qualify for H-1B "portability" employment, the nonimmigrant must:
- Have been previously issued an H-1B visa or otherwise provided H-1B nonimmigrant status;
- Have been lawfully admitted into the United States as a nonimmigrant;
- Not have engaged in employment without authorization since that admission; and
- Be the beneficiary of a non frivolous I-129 petition for new H-1B employment filed with USCIS before the expiration of the "period of stay authorized by the Attorney General."
The current DHS and DOS policy is that an H-1B nonimmigrant visa remains valid during its validity period regardless of a change in the beneficiary's employer. As long as the alien remains in H-1B classification, the visa is considered to be valid up until the date of its expiration. An H-1B nonimmigrant who follows USCIS procedures to change employers in the United States may use the previously issued visa to apply for readmission to the United States if it is still valid. The H-1B worker should present the H-1B approval notice for the new (current) H-1B employment upon reentry.
If the new employer requests an expiration date the same as that which appears on the H-4 dependents' current Forms I-94, no action needs to be taken on behalf of the H-4 dependents. Their status remains H-4 as long as the H-1B nonimmigrant maintains his or her status. However, if the new employer extends the expiration date beyond that noted on the original H-1B petition and on the H-1B's I-94 and H-4 I-94s, an I-539 application to extend the H-4 status of dependents is needed.
Changing H-1B employers
Once an H-1B worker is in the U.S., he or she 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.
- 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 cansometimes take 60-90 days.
- 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
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)."
The H-1B status is limited to a six-year status. However, there are four exceptions to this limit. It is possible to obtain H-1B status beyond the six-year limit for the following individuals:
- Those who have been on an H-1B for 6 calendar years but during that time, they have been outside the US. Any time outside the US can be “recaptured” at the end of the 6 years, for an exceptional “extension” beyond 6 years. For example, an H-1B visa holder who has been on H-1B status for 6 years but has left the country for two months each summer for six summers can “recapture” a total of 12 months and extend the H-1B for a seventh year. Scholars must submit evidence such as stamps in the passport when the department submits an H-1B extension request packet, in order to benefit from recapture time.
- An H-1B can be extended if 365 days or more have passed since the filing of any application for labor certification (Form ETA 750 or 9089) that is required or used by the alien to obtain status as an employment-based (EB) immigrant.
- An H-1B can be extended if 365 days or more have passed since the filing of an EB immigrant petition (I-140), such as petitions under the “Outstanding Professor/Researcher category.”
- An H-1B can be extended if the scholar is the beneficiary of an approved EB immigration petition prior to the expiration of the 6th year of H-1B status but is not able to file to adjust status to U.S. permanent residence because there is a waiting list for available immigrant visas. This includes those who cannot apply for adjustment of status solely because of "per-country limits” on immigrant visa availability (China, El Salvador, Guatemala, Honduras, India, Mexico, Philippines and Vietnam). The country to which an immigrant entering under the preference system is accredited is known as the country of "chargeability" which is usually determined by country of birth. There are some exceptions to this general rule such as the "derivative chargeability" exception which is designed to prevent the separation of family members.
Incidental Employment for H-1Bs
The H-1B category allows employment incident to status only with an employer who has had an H-1B petition approved by USCIS on behalf of the beneficiary (or, under H-1B portability rules, with an employer who has filed an H-1B petition on behalf of the beneficiary). Although H-1B nonimmigrants may have occasion to make occasional speeches and lectures at other institutions or at conferences, they may not receive compensation for these activities.
There is scarce guidance on the topic of reimbursement of expenses for such activity. A 1994 legacy INS letter stated that an H-1B might be reimbursed for "transportation and reasonable, incidental living expenses" incurred in connection with giving "speeches, lectures, etc." at other entities, provided:
- the activity is incidental to the H-1B beneficiary's employment as an H-1B,
- the H-1B beneficiary is not paid a wage or salary for his or her services, and
- the H-1B beneficiary does not derive a monetary or other material gain from those activities
The employment of an H-1B nonimmigrant alien is specific to a particular employer and is limited to the terms of employment listed on the supporting petition. For example, an H-1B nonimmigrant alien petitioned for by an employer to work as accountant is not permitted to work for the petitioning employer as a secretary. The alien is permitted to perform only the duties specified by the petitioning company on the petition.
USCIS realizes, however, that many H-1B nonimmigrant aliens, particularly in academia, may be asked by other entities to give speeches or lectures, etc. Although there is no formal written policy or regulation addressing this issue, these activities are not precluded if they are incidental to the alien's employment as an H-1B and, provided further, that the alien is not paid a wage or salary for his or her services and does not derive a monetary or other material gain from those activities. The question of whether or not an activity may be deemed to be incidental to an H-1B nonimmigrant alien's employment can only be determined on a case by case basis. The alien may be provided with transportation and reasonable, incidental living expenses."
Differences Between H-1B and J-1 Status
Advantages of H-1B status include the following:
- Individual can hold H-1B status longer than J-1 Status: While temporary, it allows a maximum period of stay of 6 years, whereas J-1 visiting professors and researchers are admitted for up to 5 years. If someone holding an H-1B has had a combination of a Labor Certification and/or an I-140 (Application for Permanent Resident or "green card") pending for 365 days or more, ISSS can request yearly extensions of H-1B work permission until s/he adjusts to Permanent Resident
- H-1B Status Does Not Have the Two Year Home Residency Requirement, unlike a J-1: An H-1B alien may apply for adjustment of status to permanent resident or for change of status to another nonimmigrant classification, whereas some J-1 aliens are prohibited from such changes because of the 2-year home-country physical presence requirement
- H-1B is a Working Status - J-1 is for the purpose of exchange: The Department of State and USCIS make a distinction between the H-1B alien who comes specifically to perform services and the J-1 exchange visitor who comes as a participant in an exchange visitor program designed to "promote interchange of persons, knowledge, and skills, and the interchange of developments in the field of education, the arts and sciences," in such a way as to promote "mutual understanding between the people of the United States and the people of other countries." [22 CFR 514.1]
- H-1B has Dual Intent which means it's acceptable to file for a green card while holding H-1B status: J-1 status has "Non-Immigrant Intent" which means that the individual in J-1 exchange status is encouraged to depart the United States upon completion of his/her objective. It is difficult to apply for a green card while holding J-1 status
- Department may request Premium Processing for an H-1B Petition. There is no way to Premium Process a Change of Status to J-1 Exchange Visitor
Advantages of J-1 status include the following:
- J-1 status does not require an LCA, unlike the H-1B; ISSS does not need to prove that Temple University is paying the higher of the Prevailing and Actual Wage
- Issuing a DS-2019 is faster than waiting for an H-1B Approval Notice from USCIS: Obtaining H-1B status takes more processing time than is required for J-1 status
- USCIS must approve a petition for H-1B classification before an alien may apply for a visa: An alien may apply for a J-1 visa stamp at a US Consulate Abroad immediately upon receiving Form DS-2019 from our office
- There are no application or Anti-Fraud fees associated with the J-1: A fee is required for an H petition and for extension of stay in H status. There are no application or Anti-Fraud fees associated with the J-1
To summarize, the J-1 Exchange Visitor category should be used to bring in individuals who will "promote interchange of persons, knowledge, and skills, and the interchange of developments in the field of education, the arts and sciences." While it is not explicitly stated in the regulations, it is understood that the only way there can be an "interchange of knowledge" is for the Exchange Visitor to depart the United States upon completion of his/her program and return to "share" the knowledge/expertise s/he obtained while in exchange visitor status. The H-1B employment visa is simply a visa category which allows Temple University to hire non-immigrants who will "perform[s] services in a specialty occupation."
Leaving Temple University: Important Visa and Tax-Related Information
Before you leave Temple University, be sure to inform your Department Administrator. S/he should notify Human Resources and the Office of International Student and Scholar Services of the end date of your Temple University appointment. Depending on your visa status, ISSS may be required to notify the appropriate U.S. government agencies that you have left Temple.
Keep ALL visa documents (e.g. Forms DS-2019 / I-797 / I-20 / I-94) in a safe place. You may be asked to provide copies of these documents in the future if you apply for a new benefit with USCIS, if you apply for US Legal Permanent Residence (green card) or if you depart and then return to the United States.
Review tax information on Human Resources' website: https://careers.temple.edu/hr-resources/our-functional-areas/payroll-management/taxes-and-deductions/foreign-national-taxation
Ending your Authorized Stay Earlier Than Originally Planned:
- J-1: If you leave Temple more than 15 days before the end date on your DS-2019, ISSS is required toshorten your J-1 program in SEVIS. Your J-1 program will end as of your early completion date. We will confirm this date with you and your Department before processing the SEVIS event.
- Employment Visa Holders (H-1B, TN, E-3, O-1): Temple may be required to notify USCIS and/or the U.S. Department of Labor if you leave Temple before the end date of your immigration status. Please notify ISSS in writing if you complete, withdraw, or resign from your appointment prior to the expiration of your current status, and provide the specific date of early termination.
Transfering To Another Institution:
- J-1 Scholars, their department and ISSS will need to work closely with the new institution during the J-1 Transfer Process. Contact firstname.lastname@example.org for more information.
- Employment Visa Holders (H-1B, TN, E-3, O-1): Please contact the International Office at your new institution for instructions.
Note that individuals in their "Grace Period" may not engage in any employment.
- F-1 OPT: Individuals in F-1 status (and their dependent family members) have an automatic 60-day grace period after the end date of their F-1 OPT during which they may remain in the US.
- J-1: Individuals in J-1 status (and their dependent family members) have an automatic 30-day grace period after the end date of their J program during which they may remain in the US.
Discretionary Grace Periods for Employment Visa Holders (H-1B, TN, E-3, O-1):
Unlike the F and J immigration categories, there is no automatic "grace period" for aliens holding an Employment Immigration status (E-1, E-2, E-3, H-1B, L-1, or TN) after their period of authorized stay ends or after their employment terminates. However, DHS may in its discretion grant grace periods to certain employment-based nonimmigrants, including:
- A 10-day period before and after the validity period of the petition, in the E-1, E-2, E-3, H-1B, L-1, or TN categories
- Up to 60 days once during each authorized validity period in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN categories, during which DHS will not consider the worker and his or her dependents will "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"
The application of these rules can be complicated.
- The grace periods are not automatic
- They are granted on a discretionary, case by case basis by DHS
- The beneficiary may not work during either a 10-day or a 60-day grace period
- Since they deal with maintenance of individual immigration status, nonimmigrant workers should consult an experienced immigration lawyer if they have detailed questions about their own particular case.