Changing H1B employers

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An H1B nonimmigrant may change employers. An H1B petition is not a binding contract between the parties. Either side may terminate the agreement at any time. If either side terminates the agreement, the H1B employee must find new employment or leave the United States within ten days. There are an abundance of Internet myths concerning supposed "grace periods" available to H nonimmigrants. There is no "grace period" other than the ten days provided by law.

Changing H1B employers involves two components: the H1B petition approval and continuity of status. These are wholly separate issues. A precondition to holding H1B status is an approved H1B petition. A valid H1B entitles the beneficiary to apply for an H1B nonimmigrant visa and enter the United States. If an H1B nonimmigrant wishes to change employers, and remain in the United States throughout and after the process. he or she must be in lawful H1B status at the time the change of employer petition is filed.

In this instance, being in lawful H1B status means that the employee has been paid the full salary regularly, has not worked without authorization, or has otherwise done anything inconsistent with maintaining H1B status. If the employee has left his or her employer, then the new petition must be physically delivered to the CIS within ten days of the last day of employment with the former employer.

Sometimes, an employee will move to a new employer upon the filing of that employer's H1B petition. Then, after a short interval, the employee will decide to move on to a third employer, and the third employer will file a petition on the employee's behalf. When this happens, the intermediate petition is known as a "bridge petition." It is called this because it bridges the gap in status between the time the employee leaves the first employer and the time the third employer files its petition. In such cases, in order to maintain continuity of status (and remain eligible for an extension of status) the second, or bridge petition, must be approved. If it is not, then the bridge collapses and there is a gap in lawful status.

If an H1B beneficiary does not maintain lawful status, then it is not possible to receive an extension of status. In such cases, the employee needs to take the approved petition and go abroad. When the employee re-enters the United States, using the new petition, he or she will be given lawful H1B status and may then resume working for the new employer.

See also, AC21 Issues