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Changing employers with an H-1B visa

Employment duration is evolving. No longer is employment a lifelong commitment between an employee and an employer. Workers move from one job to another in search of higher compensation, career advancement and a better work-life balance. The average worker changes jobs ten or more times during his or her career. Workers with employment-based visas are no different.

More than just a transfer

The term transfer is frequently used when referring to a change of employment for individuals with an H-1B visa. However, it is a common misconception that H-1B visas are transferable from one employer to the next. The only actual transfer taking place is the foreign national employee moving from one place of employment to another. An employment change requires the filing of a new H-1B petition, and generally a request for an extension, with the U.S. Citizenship and Immigration Services (USCIS).

The petition process and requirements

When changing employment, the H-1B visa holder does not need to obtain permission from the current employer to take a position with the new employer. Once the new employer files the visa holder's new H-1B petition with the USCIS, the employee may to start working for the new employer.

The new employer needs to file the H-1B petition and pay all associated fees. The petition needs to establish both employer and employee visa eligibility. When filing for an extension of status the employee must prove employment status, often using pay stubs or other financial records as proof.

Fulfilling existing obligations

A word of caution, a new H-1B petition does not override any contractual obligations the employee may have entered with the original employer. Contractual obligations are enforceable by state or federal employment laws. Failure to fulfill existing obligations may result in a lawsuit.

Although changing employers requires the filing of a new petition, H-1B visa holder employment changes do not count against the annual limit for H-1B visas. Employees can change employment even if the visa lottery is over. The employment change petition application process generally takes 4-8 weeks to process.

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