Travel Using a Visa Issued for Work with a Previous H1B Employer
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Many people erroneously believe that when they change H1B employers, they
must obtain a new visa before they travel and return to the U.S. This is not
necessarily true. If the H1B nonimmigrant has an H1B visa that has not yet
expired, even if issued for employment with another petitioner, that visa
may be used until it expires. An H1B nonimmigrant must have a valid
passport, a valid H1B petition approval notice (I-797), and a valid visa in
order to enter the United States from abroad. If the applicant was
previously issued an H1B visa, and the visa has not yet expired, it may
still be used as a valid travel document in connection with the new H1B
petition approval notice.
The State Department has explained this in their Foreign Affairs Manual:
9 FAM 41.53 N8.3-3 Validity of H-1B When There is a Change of Employer(CT:VISA-1041; 09-26-2008)
a. After changing H-1B employers in accordance with DHS procedures for making such a change, an H-1B visa holder may continue to use his or her original H-1B visa for entry into the United States. Upon applying for entry, the visa holder must present the new Form I-797, Notice of Action, evidencing the approval of the change of employer in addition to the visa.
b. An H-1B applicant can change employers without penalty while in the United States provided the following criteria were met:c. After the filing of the new petition the H-1B is authorized to accept employment until the petition is adjudicated. If the new petition is denied, employment must cease. If the alien's prior visa and petition have expired, the alien is not eligible to receive a new visa until the pending petition has been approved.(1) The alien was lawfully admitted to the United States;
(2) The new employer filed the petition for the alien prior to the expiration of his or her authorized stay;
(3) The alien had not worked without authorization prior to the filing of the new petition; and
(4) Has not been employed in the United States without authorization subsequent to lawful admission but before filing such petition.
Additionally, there is a policy memo from the INS, issued in 1997, but still followed today:
July 8, 1997
All District Directors
All Officers-in-Charge
Office of Benefits
Service Center Directors (HQBEN)
All Port Directors
This office has received a number of inquiries from the public and Service officers concerning the validity of certain nonimmigrant visas where the beneficiary changes employers but remains in the same nonimmigrant classification. This issue has generated a substantial amount of correspondence between the Service and the Department of State (DOS). The purpose of this memorandum is to provide you with the current policy of the Service and the DOS with respect to this issue.
The issue arises where, for example, an alien enters the United States as an H-1B nonimmigrant on the basis of a petition filed by "Company A." After commencing employment, the alien receives a more attractive job offer from "Company B." Company B files a new H-1B petition in the alien’s behalf which is approved by the INS. The alien then begins employment with Company B. The alien subsequently leaves the United States and then applies for admission as an H-1B nonimmigrant alien to work for Company B presenting the H-1B visa issued to him based on Company A’s petition.
Be advised that the current Service and DOS policy is that, in the case of an H, L, O, or P nonimmigrant visa, the visa remains valid during its validity period regardless of a change in the beneficiary’s employer. As long as the alien remains in the same nonimmigrant classification, the visa is considered to be valid up until the date of its expiration. An H, L, O, or P nonimmigrant alien who changes employers in the United States, but remains in the same nonimmigrant classification, may use the previously issued visa to apply for admission to the United States if it is still valid.
The policy will continue until further notice. This memorandum relates only to the H, L, O and P nonimmigrant classifications.
In addition, service officers are again reminded that H-1B and L-1 nonimmigrant aliens should be admitted for the validity period of the supporting petition, if otherwise admissible. Officers should not arbitrarily limit the admission period of an H-1B or L-1 nonimmigrant alien.
Michael L. Aytes
Assistant Commissioner
In a recent liaison meeting between the American Immigration Lawyer's Association and the State Department, the following question was asked and answered:
(AILA Question) § 105 of AC21 provides that a person who was previously issued a visa or otherwise provided H-1b status may accept new employment upon the filing of a new petition by a new employer, subject to the final approval of the petition. The January 29, 2001 memorandum from Michael Pearson, INS Executive Associate Commissioner, regarding this issue of portability instructs the INS ports of entry as to the conditions under which individuals affected by this section are to be readmitted. On July 8, 1997, Michael Aytes, Acting INS Assistant Commissioner, noted that the INS and the DOS had agreed that when an alien began employment with a new employer after approval of the H-1b petition, that the alien could reenter the U.S. on the old H-1b visa during its validity period assuming that the alien was otherwise admissible. This policy applied to the H, L, O, and P nonimmigrant classifications. AILA would urge the DOS to adopt a business facilitation approach to the implementation of section 105, since even if the new H-1b petition is not approved, the employee could return to the employment of the former employer and concurrent employment is allowed by the H-1b regulations.
(State Department Answer) In our guidance of 2/14/01, State 27960, we stated as follows: "An H-1(b) alien traveling abroad will need a new visa only if the original visa has expired. This should be fairly rare as the visa and petition have the same expiry date, unless the reciprocity schedule caused otherwise. If both the prior visa and prior petition have expired, the applicant would not be eligible for a new H-1(b) visa until the new petition has been approved. Consular officers issuing visas to such applicants must require the same evidence the Service needs for admission, i.e., a valid passport, evidence that the old petition is still valid, and evidence that the new petition was timely filed."
[Note: The following is the text of the policy telegram was sent by the State Department to all visa posts abroad on February 14, 2001 and referenced in their answer immediate above]
UNCLASSIFIED TELEGRAM
February 14, 2001
ALL DIPLOMATIC AND CONSULAR POSTS - ROUTINE
Origin: VO
From: SECSTATE WASHDC (STATE 27960 - ROUTINE)
TAGS: CVIS
Captions: VISAS
Subject: New H-1(B) Provisions
Ref: None
1. Summary: Public Law 106-396 provided for, among other things, " portability" for H-1(B) aliens, permitting them to change jobs during the pendency of the adjudication of petition filed by the new employer. Set forth below are t considerations for issuance of a new visa, if needed, by such H-1(B) aliens.
2. SEC. 105 OF PUB.L. 106-396 provided that an H-1(B) nonimmigrant could change employers without penalty providing the following criteria were met:
(A) The alien had been lawfully admitted;
(B) The new employer filed a petition for the alien prior to the expiration of his/her authorized stay;
(C) The alien had not worked without authorization prior to the filing of that new petition.3. INS regulations do not provide for the automatic revocation of an H-1(B) petition when the employee leaves his/her employer. The petition remains valid until its expiration date or its revocation on notice from the INS pursuant to receipt of information (usually from the employer) that the alien is no longer employed (which occurs rarely). Therefore, in most cases the continued validity of the petition will support "portability" of status to a new employer.
4. It is quite likely that some H-1(B)'s will travel during the period following their acceptance of new employment.
The service considers them admissible without a new visa during the period of validity of the original petition plus ten days, provided the alien meets the following requirements:
(A) The applicant is otherwise admissible;
(B) S/he has a valid passport and visa (even if it is the original visa with the prior employer's name);
(C) S/he has the prior form I-94 or a copy thereof or a form I-797 showing the original petition's validity dates; and
(D) S/he has a dated filing receipt or other evidence that a new petition was filed in a timely fashion.
5. Therefore, an H-1(B) alien traveling abroad will need a new visa only if the original visa has expired. This should be fairly rare as the visa and petition have the same expiry date, unless the reciprocity schedule caused otherwise. If both the prior visa and prior petition have expired, the applicant would not be eligible for a new H-1(B) visa until the new petition has been approved.
6. Consular officers issuing visas to such applicants must require the same evidence the service needs for admission, i.e., a valid passport, evidence that the old petition is still valid, and evidence that the new petition was timely filed.
LARSON
