H1B Change of EmployerH1B visa is employer-specific, upon approval of an H1B visa and the commencement of the H1B employment, the H1B worker is authorized to work for only the H1B employer who petitioned for the H1B visa. In any event, if the H1B worker wants to work for another employer, an H1B transfer application should be filed. However, when the H1B worker changes H1B employers, no new filing is needed for H-4 family members because the H4 foreign national continues to remain in a valid non immigrant status as long as the principal H1B worker remains in a valid H1B status.
Cap issues for H1B transferThe issues of whether a new H1B petition is counted against the current H1B cap depends on whether the initial H1B petition was cap-subject. If the petition filed by the previous H1B employer has already been counted against the cap, a petition for sequential H1B employer filed by a new employer will not counted against H1B cap. Therefore, the petition filed by the new H1B employer may still be approved even if the cap has been exhausted at the time of the new H1B filing. For example: Employer A – an private Accountant firm petitioned an H1B visa for H1B Employee. The petition was filed timely and counted against the 65,000 H1B cap. Three years later H1B Employee wants to work for Employer B, another private Accountant firm. At the time of filing this new H1B petition, the H1B cap has been used up. Nevetheless, because H1B Employee previous employer (Employer A) was counted against the cap, Employer B can still file the new H1B petition when the H1B cap is used up at the time of filing. Contrarily, if Employer A is a cap-exempt organization and Employer B is a non-cap-exempt employer, then H1B Employee will be subject to the H1B numerical limitation (H1B cap) and the new H1B petition filed by Employer B will not be adjudicated unless a cap number is available to H1B Employee at the time of filing the new H1B petition.
H1B Portability: Commencement of new H1B employerUnder the “Portability Provisions” issued in 2000, a H1B worker previously issued an H-1B visa is allowed to begin working for a new H-1B employer as soon as the new employer files an H-1B petition for him/her. To be eligible to “port” from one employer to another employer, the H1B worker must:
- have been lawfully admitted into the United States.
- have the new employer filed a “non-frivolous” petition while the alien was in a period of stay authorized by the Attorney General.
- Subsequent to such lawful admission, the alien must not have been employed without authorization