Hi chumbawumba1,
The commenter, jbyrley-ga, is correct in so far as it goes, but please
be careful. What the comment refers to is the "Portability of H-1B
Status". Presently, an H-1B non-immigrant may change jobs and begin
working for the second employer as soon the new employer has filed the
paperwork for the new petition. In the past, you would've had to wait
for the petition to be approved before you could start working for the
new employer. However, please understand that if you leave your
present employment and start working for your new employer under the
Portability option, there is always the possibility that the new
petition will be denied, and if so, you will be out of a job (and
therefore out-of-status).
THE LAW:
SEC. 105. INCREASED PORTABILITY OF H-1B STATUS.
"(a) IN GENERAL- Section 214 of the Immigration and Nationality Act (8
U.S.C. 1184) is amended by adding at the end the following new
subsection:
`(m)(1) A nonimmigrant alien described in paragraph (2) who was
previously issued a visa or otherwise provided nonimmigrant status
under section 101(a)(15)(H)(i)(b) is authorized to accept new
employment upon the filing by the prospective employer of a new
petition on behalf of such nonimmigrant as provided under subsection
(a). Employment authorization shall continue for such alien until the
new petition is adjudicated. If the new petition is denied, such
authorization shall cease.
`(2) A nonimmigrant alien described in this paragraph is a nonimmigrant alien--
`(A) who has been lawfully admitted into the United States;
`(B) on whose behalf an employer has filed a nonfrivolous petition for
new employment before the date of expiration of the period of stay
authorized by the Attorney General; and
`(C) who, subsequent to such lawful admission, has not been employed
without authorization in the United States before the filing of such
petition.'.
http://uscis.gov/lpBin/lpext.dll/inserts/publaw/publaw-22355/publaw-22410?f=templates&fn=document-frame.htm
Increased Portability of H-1B Employees:
"Prior to adoption of the Act, employers seeking to hire foreign
nationals working in H-1B status for another employer had to file new
H-1B petitions (so-called "sequential" H-1B petitions), and then wait
several months until these sequential H-1B petitions were approved
before they could put these new employees to work. The Act permits
employees already in lawful H-1B status for another employer to start
work with their new employer as soon as the new H-1B petitions are
filed as long as they have not violated their H-1B status. This
provision applies to all sequential H-1B petitions regardless of when
they were filed. As a result, companies who have sequential H-1B
petitions pending may now put the affected employees on the payroll as
of October 17, 2000. This employment authorization terminates,
however, if the sequential H-1B petition is denied.
"Employers seeking to take immediate advantage of this provision
should have the new H-1B employees complete the Form I-9 in the
regular way but also include evidence of filing the sequential H-1B
petition (cover letter with postal receipt, Immigration Service
receipt, etc.) as proof of temporary employment authorization. The
Form I-9 will have to be updated when the H-1B petition is approved.
http://www.ebglaw.com/article_425.html
Your new employer will Form I-120 and you will need to complete Form
I-9 to begin the transfer.
Form I-9: Employment Eligibility Verification:
http://uscis.gov/graphics/formsfee/forms/files/i-9.pdf
Filing the I-129 Petition
"USCIS Form I-129 consists of a basic petition and different
supplements that apply to the various visa categories. In order to
petition for a temporary worker, the prospective employer or agent
must file Form I-129, Petition for Nonimmigrant Worker, and the
appropriate supplement with the U.S. Citizenship and Immigration
Services (USCIS) accompanied by the required payment, and initial
evidence or documentation.
In some cases, the employer must get a certificate from the Department
of Labor prior to filing the I-129. This process is described below in
the appropriate categories.
Once the petition is approved, the employer or agent is sent a Notice
of Approval, Form I-797."
"If the beneficiary is already in the U.S. and is changing from one
nonimmigrant status to another, a visa is not required. However, a
visa may be required if the beneficiary subsequently leaves the U.S.
and wishes to re-enter."
http://uscis.gov/text/services/tempbenefits/TempWorker.htm
What if the alien?s circumstances change?
"As long as the alien continues to provide H-1B services for a U.S.
employer, most changes will not mean that an alien is out of status.
An alien may change H-1B employers without affecting status, but the
new H-1B employer must file a new Form I-129 petition for the alien
before he or she begins working for the new employer. The merger or
sale of an H-1B employer?s business will not affect the alien?s status
in many instances. However, if the change means that the alien is
working in a capacity other than the specialty occupation for which
they petitioned, it is a status violation.
Must an H-1B alien be working at all times?
"As long as the employer/employee relationship exists, an H-1B alien
is still in status. An H-1B alien may work in full or part-time
employment and remain in status. An H-1B alien may also be on
vacation, sick/maternity/paternity leave, on strike, or otherwise
inactive without affecting his or her status."
http://uscis.gov/graphics/howdoi/h1b.htm#change
In regards to your question about the term "non-frivolous petition",
it is defined as not without basis in law or fact. In other words, the
petition must be lawful and truthful.
>>>
Your other option would be to wait for the arrival of the Notice of
Approval, Form I-797 before you begin working for your new employer.
"Employers who wish to hire foreign workers to temporarily perform
services or labor or to receive training may file an I-129 petition.
The I-129 is mainly used for nonimmigrant categories; thus, in most
cases, workers who enter the United States under this petition must
depart the U.S. when their maximum period of stay has been reached.
Form I-129 may also be used to petition for an extension of stay or
change of status for certain nonimmigrants."
When to file
"Petitions should be filed as soon as possible, but no more than 6
months before the proposed employment will begin or the extension of
stay is required. If the petition is not submitted at least 45 days
before the employment will begin, petition processing and subsequent
visa issuance may not be completed before the alien's services are
required or previous employment authorization ends."
http://uscis.gov/graphics/services/tempbenefits/TempWorker.htm
I hope I've helped to sort this out a bit, but as you know, so much
depends on your personal circumstances. If you have any questions,
please post a clarification request *before* closing/rating my answer
and I'll be happy to reply.
Thank you,
hummer
Search Strategy:
I searched Google and the USCIS website using terms such as, I-129,
I-9, I-797, portability, transfer, H1B, H-1B, company A B. |
Clarification of Answer by
hummer-ga
on
22 Dec 2004 18:36 PST
Hi chumbawumba1! Well, I thought your name sounded familiar but I
didn't try to find out why - looks like we're destined for each other!
1) If you go "out of status" during the switch, do i have to leave the
country immediately - or is there a grace period?
If your new employer filed all of the paperwork while you were
in-status, your status shouldn't be affected while the petition is
pending.
"Keep in mind, however, that your status is dependent upon your
continued employment. This means that if you complete your purpose for
being in H or O status earlier than the date indicated on the I-94
card, you are no longer maintaining your status and must leave the
United States earlier. There is no grace period for H-1 and O-1
status.
Two exceptions that allow you to remain in the United States with an
expired I-94 card are :
* when a timely petition to extend your H-1 or O-1 status has been
filed and the petition is pending with USCIS."
http://www.columbia.edu/cu/isso/visa/scholar/HO_scholar_maintain_status.html
"Please note that if the employee on H-1B visas loses his/her job,
there is no grace period. Such person immediately goes out of status.
USCIS is proposing a rule, however, that would afford H-1B
beneficiaries, who are no longer working for the initial H-1B
employer, some reasonable period of time such as 60 days after leaving
the initial H-1B employer to being working for a new H-1B petitioning
employer under the portability provisions. Remember, there is NO such
as rule as now.
http://www.immihelp.com/visas/h1b/portability.html
2) If you go out of status, does that nullify all your remaining time
on the H1B permit? Or is it still possible to reapply for a job,
(albeit from your home country I assume) and get another sponsorship
to use the time remaining?
H-1Bs are job specific and only good for the employer who sponsored
you, you would need to find a new employer to petition for a new H-1B
Please contact your nearest USCIS field office for more personalized
answers to your questions. You want to make sure that you do
everything perfectly to make sure to maintain your status. Prevention
is much easier than a cure!
USCIS Field Office:
http://uscis.gov/graphics/fieldoffices/index.htm
By the way, do you know that you are eligible to apply for permanent
residency (green card) while you are lawfully in the U.S.? Just
something to think about.
Application Procedures:
Becoming a Permanent Resident While in the United States
http://uscis.gov/graphics/howdoi/LPRApplication.htm
Good luck
hummer
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