Clarity and Strength in Immigration Law

Top Six Things an H-1B Employee Should Know

1.       I’m in a different immigration status right now. Can I change status in to H-1B without leaving the US?

You may be able to. If you are in J-1 status, you must confirm with your attorney that you are not subject to the two –year home residence requirement. If you are in B-1/B-2 status, you should also work closely with your immigration attorney to make sure that there are no problems filing a change of status.

2.       Can I change employers while I’m in H-1B status?

Yes. Your new employer would need to file an H-1B petition for you, but in most instances you can start working as soon as the new petition is filed. This is called an H-1B transfer. If you have previously been counted against the H-1B cap, you will not be counted against the cap when you file an H-1B transfer.

3.       What if I want to extend or transfer my H-1B status, but I don’t have pay stubs?

Generally when you file an H-1B transfer or extension petition, you must include a copy of recent pay stubs to show that you have maintained valid H-1B status. If you do not have pay stubs (because you haven’t been working or for some other reason), you may still be able to file the petition.  However, USCIS may approve the petition without the I-94 card. In that case, you may need to leave the US, have the H-1B visa stamped if you do not already have a valid H-1B visa in your passport (unless you are visa-exempt), and then re-enter the US to obtain a new I-94 card. Please speak with your immigration attorney in more detail if you have this situation.

4.       Can I travel while the change of status is pending?

If you travel while the change of status is pending (remember, a change of status is when you are applying to change from some other immigration status to H-1B, in this case), your change of status request will be considered abandoned and denied. The petition itself would still be approved, assuming it is otherwise approvable. However, you would need to have the H-1B petition approved, and the H-1B visa stamped before you re-enter the US in H-1B status.  Please speak with your attorney prior to traveling!

5.       Can I travel while the extension of status is pending?

Yes.  If your current petition will expire while  you are outside the US, you must wait for the extension petition to be approved, and then have the new H-1B visa stamped before you re-enter the US.

If your current petition will still be valid when you re-enter the US, and if you still have a valid H-1B visa, you can re-enter the US (be sure to travel with a copy of the extension petition receipt notice).

If your current petition will still be valid when you re-enter the US, but you need to have your visa stamped while you are outside the US, note that your visa will be stamped with validity end date that matches your current status. 

6.       I’m graduating from university/graduate school soon. I want to work on H-1B status. What should I do?

You may want to obtain OPT (optional practical training) first. OPT is available for up to one year for F-1 students who have graduated. You can work for an employer in a position related to your field of study for up to one year, and the employer does not have to sponsor you. While you are working in OPT, you can plan your H-1B strategy. Each case is unique, so please speak with an immigration attorney.