Clarity and Strength in Immigration Law

I’m an H-1B holder – can I change my job?

An H-1B visa petition is employer-specific. That means that if you have an H-1B petition with employer A, you are only authorized to work for that employer. However, it is possible for an H-1B holder to change jobs, by having a new employer file an  H-1B transfer petition. Even if you do not have an H-1B visa, changing jobs can be stressful, with lots of factors to consider. Having an H-1B visa adds an extra layer of complexity. Here are the things to consider if you are thinking of changing jobs while in H-1B status:

How long will the H-1B transfer process take? 

It depends! Keep in mind that the labor condition application (LCA) must be filed and certified before the H-1B petition is filed. It takes at least a week for the LCA to be certified. A two week period for the having the LCA filed and certified, and having the rest of the petition prepared and ready to file is a reasonable expectation depending on the facts of your situation.

Can I start working for another company before the H-1B visa transfer is complete? 

Assuming the H-1B worker meets the requirements for H-1B portability (generally speaking, if the person has been lawfully admitted, the new H-1B petition has been timely filed before the current petition expires, and the H-1B worker has not worked without authorization), then the H-1B holder can begin working as soon as USCIS receives the petition. Therefore, you could start working for the H-1B employer before the H-1B petition is approved.

Can I file the H-1B transfer petition using premium processing? 

If premium processing is available for your filing, then you can use premium processing if you chose to. At times USCIS suspends premium processing for certain types of filings.

Will changing my job have any impact on my priority date?

If your I-140 petition is approved, generally speaking you may retain the priority date. This means that you may use the priority date when you start the green card process again with your new employer. If the I-140 petition has been approved for at least 180 days, the beneficiary may retain the priority date, even if the I-140 petition has been withdrawn (unless it was revoked because of fraud).

After changing jobs, how soon can I submit the I-140 again? 

The new employer can begin the employment-based green card at any point, either before you actually join, at the time of joining, or at some point after you join. This  may be a point that you can negotiate with your new employer, or the employer may have a set policy on who they will sponsor for a green card and at what point. It’s a good idea to confirm whether the prospective new employer is willing to sponsor you for a green card before accepting an offer.

Can I submit the I- 140 for every one (myself , spouse, and kids ) together?

The employer is the petitioner for the I-140 petition, and as such, the employer is the entity that will file the I-140 petition (unlike the I-485, which would be filed by the H-1B beneficiary and his or her family). However, yes, family members should be listed on the I-140 petition.

Can I use premium processing for the I-140 petition? How long will the I-140 petition take? 

If USCIS is allowing for premium processing for the I-140 petition, you may certainly use it. The I-140 processing times change frequently, and they vary depending on the service center processing the petition, so it’s best to look up the processing times online. Right now they are taking several months under the regular process. If you use premium processing, USCIS will issue a decision or a request for evidence (RFE) within 15 calendar days.

Once the H-1B visa is transferred do we need to go to our home country and get the stamping done immediately? 

Once the H-1B petition with the new employer is approved, you do not have to leave the US for the H-1B visa stamping immediately. It is the I-94 card that should come with the H-1B approval which allows you to remain in the US and work in H-1B status. You would only need to have the H-1B visa stamped to be able to return to the US after traveling outside the US.

Can I travel out of USA and use the I -140  or I- 797 form with out getting a new H-1B visa stamp?

Unfortunately the I-140 petition and/or the I-797 H-1B approval notice alone will not allow you to re-enter the country. You must make sure that you have a valid H-1B  visa to re-enter.

Will changing my job will have any impact on getting the green card? 

If you are an H-1B worker and you are going to change jobs, you certainly need to make sure that your green card process (if you have started it) will not be negatively impacted. If  you have an I-140 petition approved,  you may retain the priority date, as outlined above. If you have filed the I-485 application and your I-140 petition is approved, and if you are moving to the same or similar position with a new employer, you may be eligible to continue your green card process without having to start over with the new employer. You should consult an immigration lawyer to confirm and come up with a strategy.

We are here to help you navigate the immigration maze with peace of mind and confidence.  Contact Sumner Immigration Law to set a consultation to create your strategy today! We are immigration lawyers in Richmond, VA but we serve clients throughout the US and around the world.  You can call us at 804-396-3412 or send us an email to info@sumnerimmigration.com.

Sumner Immigration Law is LGBTQ-friendly.