For H1B visa holders, one of the most important benefits of this visa category is portability—the ability to switch employers without losing lawful status. This portability provision allows you to move from one H1B-sponsored employer to another while staying in the U U.S. legally, but it’s essential to understand how this process works. Whether you’re looking for better opportunities, career growth, or simply need to change employers for any other reason, understanding how to navigate H1B portability is key to ensuring you maintain your legal status.
In this article, we’ll explain what H1B portability means, the steps to take when changing employers, critical timelines and requirements, and common pitfalls to avoid during the transfer process.
What is H1B Portability?
H1B portability refers to the ability of an H1B visa holder to change employers without losing their legal status in the U.S. This means that if you are currently working on an H1B visa with one employer and receive an offer from another employer, you don’t have to leave the U.S. to switch jobs—you can transfer your H1B status to the new employer.
The portability provision was introduced under the American Competitiveness in the 21st Century Act (AC21), which allows H1B visa holders to transfer their visa status without needing to wait for a new visa to be issued. In short, H1B portability allows for a seamless transition between employers, provided you follow the correct legal steps.
Steps to Change Employers on H1B Status
While H1B portability allows for a relatively smooth job transition, there are specific steps you must follow to maintain your status and avoid any issues. Here’s a step-by-step guide:
1. Obtain a New Job Offer
The first step in changing employers on an H1B visa is securing a job offer from a new employer willing to sponsor your H1B visa. Your new employer must be willing to file a new H1B petition on your behalf. The new role must also be in a specialty occupation that meets the requirements of the H1B visa.
2. New Employer Files an H1B Petition
Once you have a job offer, the new employer must file an H1B petition (Form I-129) with the U.S. Citizenship and Immigration Services (USCIS) on your behalf. This petition must be filed before you begin working for the new employer.
This is not a new H1B visa application—it’s a transfer. The key difference is that the new employer will be filing a petition for you to continue working under the H1B program with them, rather than starting the process from scratch.
- Petition Filing: The new employer will need to submit the petition with supporting documents, including your job offer letter, your resume, and proof that the role qualifies as a specialty occupation.
- Labor Condition Application (LCA): The employer must also submit a Labor Condition Application (LCA) to the Department of Labor, which confirms that the employer will pay the required wages and that working conditions are not detrimental to U.S. workers.
Once the petition is filed, you do not have to wait for the petition to be approved to begin working at the new employer.
3. Begin Working with the New Employer (Upon Filing)
The key advantage of H1B portability is that you do not have to wait for your new employer’s petition to be approved before starting your new job. As soon as the new employer files the H1B transfer petition with USCIS, you are allowed to begin working for them.
This is what sets H1B portability apart from the typical process, where individuals must wait until their petition is approved before changing employers. However, if you are working for your new employer without USCIS approval, it is critical that you do not start working before the petition is filed.
- The rule is: you can begin working as soon as the petition is filed, but you must wait for the approval notice to confirm your status.
- If you change jobs and the petition is not filed, you will lose your legal status and may face serious consequences.
4. Wait for Approval
While you are allowed to begin working as soon as the petition is filed, you will still need to wait for approval from USCIS. Once the petition is approved, you will receive an I-797 Approval Notice, confirming your transfer to the new employer.
In most cases, this process can take anywhere from a few weeks to several months, depending on whether the petition is filed under regular processing or premium processing.
Note: If your transfer petition is denied, you will not be able to continue working for the new employer. You would need to either appeal the decision or return to your previous employer (if your previous employer is still willing to employ you). If both options are not available, you would need to leave the U.S. to avoid unlawful status.
5. Maintain Your Status
As long as the transfer petition is filed before your previous employment ends, you should be able to maintain your H1B status. However, if there is a significant gap between the end of your previous employment and the start of your new job, you may lose your status.
In order to maintain lawful status, it’s important that:
- The end date of your current employment and the start date of your new employment overlap or are very close together.
- If you’re unsure, it’s wise to consult with an immigration attorney to ensure your situation is handled correctly and that you’re not left without legal status.
Key Timelines and Considerations
1. Grace Period Between Jobs
After you lose your job with your current employer, you have a grace period of up to 60 days (or until the expiration of your I-94, whichever is sooner) to find a new job or have your new employer file an H1B transfer petition on your behalf.
The 60-day grace period allows you time to look for a new employer and file the transfer petition. This period is not automatically granted; you must have had an H1B status and be actively employed when your previous employer terminated your employment.
2. H1B Status Duration
Changing employers does not affect the overall validity of your H1B visa. The total duration of your H1B status is capped at six years, but this can be extended if you’re in the process of obtaining a green card. When you transfer to a new employer, your visa duration is reset based on the date your previous petition was filed.
For example, if your H1B was valid for 4 years with your previous employer, you would be able to use up the remaining 2 years on your new employer’s petition, as long as you file the transfer before the previous visa’s expiration.
3. Premium Processing
Premium processing is a service provided by USCIS to expedite your H1B petition. If your new employer opts for premium processing, the petition will be processed within 15 calendar days, speeding up the decision-making process. This can be particularly useful if you want to minimize the amount of time spent in uncertainty about your status.
4. Traveling While in the Process of Changing Employers
If you travel internationally while your H1B transfer petition is pending, be aware that your petition may be impacted. If you leave the U.S. while the petition is pending, you may have to wait until you return to the U.S. to begin working with your new employer.
If you are outside of the U.S. when the transfer petition is filed, you will not be able to start your new job until you return and present your approval notice at the port of entry.
5. Documentation for H1B Transfer
When changing employers, you may be required to provide various forms of documentation:
- Copies of your previous and current pay stubs.
- Job offer letter from the new employer.
- Copy of the petition filed by your new employer.
- Proof of your qualifications (such as your degree).
- Labor Condition Application (LCA) filed by the new employer.
Be sure to keep copies of all documentation throughout the process, including the petition receipt notice, approval notice, and supporting documents.
Common Pitfalls to Avoid When Changing Employers on an H1B Visa
1. Not Filing the Petition Before Switching Jobs
This is one of the biggest mistakes you can make. If you change employers without filing the petition or without receiving the receipt notice from USCIS, you will lose your legal status. Always ensure that your new employer has filed the petition before you leave your current employer.
2. Starting Work Without Petition Filing
You can begin working for the new employer as soon as they file the H1B transfer petition. However, do not start work before the petition is filed, as it may be considered unauthorized employment, which could jeopardize your status.
3. Overstaying the Grace Period
If you do not find a new job or have your new employer file a petition within the 60-day grace period, you will fall out of status. Be sure to work within the specified timeline to maintain legal status.
4. Waiting Too Long for Approval
While you can start working for your new employer as soon as the petition is filed, do not delay or procrastinate. If you have not received your approval notice after several months, contact USCIS or your employer to check on the status and ensure everything is in order.
Conclusion
H1B portability provides H1B visa holders with an important opportunity to change employers without the fear of losing status, as long as the transfer petition is filed properly and timely. By understanding the steps involved, timelines, and common pitfalls to avoid, you can ensure a smooth transition to your new employer without risking your H1B status. Always work closely with your employer and immigration attorney to ensure compliance and to make the process as seamless as possible.