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Changing Employers, Being Laid Off and Other Tricky Situations for H-1B Visa Holders

Law Offices of Yu & Associates

Every year in spring, quite a few foreign students graduate and begin to look for jobs. In addition to job seeking, an issue facing most of these graduates from other countries is how to obtain a work visa before their OPT status expires. Workers already in H-1B status may also encounter tough situations relating to their work visas. Therefore, our attorney compiled the following questions and answers to address these questions about H-1B visa issues.

The H-1B cap is very limited. What should I do to make sure I get an H-1B visa?

The H-1B program is capped at 65,000 visas per year, among which 6,800 visas are set aside for workers from Singapore and Chile, due to bilateral free trade agreements. An additional 20,000 visas are available for workers who have obtained a master's degree or higher in the US. Both of these caps fill extremely quickly. In the past it may have taken months to fill the regular and master's degree caps, but nowadays they are filled within a matter of days or even the first day when the cap opens. USCIS begins accepting petitions for the upcoming fiscal year on April 1. Workers who wish to apply for an H-1B visa should therefore discuss this matter with their employers as early as possible, and begin preparations in February or early March in order to submit their petition as soon as USCIS begins accepting H-1B petitions on April 1. Graduates whose OPT status is due to expire and who are unable to get an H-1B petition in during this very limited time frame should consult with an experienced attorney to find another way to maintain legal status in the US.

Can small companies successfully apply for H-1B visas?

USCIS examines H-1B petitions from small companies very closely, especially from companies which employ many H-1B workers. If the proportion of H-1B workers is above a certain amount, then the company will be named an "H-1B dependent" employer, and will have to meet strict requirements in order to apply for more H-1B visas or extend the status of current workers. But this doesn't mean that it's impossible to obtain H-1B visas. On one hand, the employer should try to create a favorable situation by employing those with a master's degree or higher with a salary of at least $60,000. On the other hand, it is also vital that the company's attorney clearly understands the principles and requirements of H-1B petitions and can convincingly demonstrate that the beneficiary meets the requirements.

I have H-1B status and need to travel abroad. How can I re-enter the US?

If you have submitted an H-1B petition but haven't received approval yet, then it is best not to travel abroad. If you have been approved for H-1B status and you travel abroad, you will need to re-apply for a visa at a US consulate abroad. And if you are in H-1B status and have started to adjust your status to permanent resident and already have an Employment Authorization Document (EAD) and Advance Parole (AP), then you have two choices for returning to the US. The first is to use your Advance Parole to return to the US and adjust status in the US while using your EAD to work. The other is to bring your H-1B application materials and approval notice with you and apply for an H-1B visa at a US consulate abroad, and re-enter the US and continue to work in H-1B status.

I am in H-1B status and want to change jobs. How should I do this?

If an H-1B worker wants to change jobs, then he or she can apply for an H-1B transfer. There is no yearly cap on H-1B transfers. You must be able to prove, however, that your employer met the salary requirements set out in your original H-1B application C that is, the prevailing wage required by the Department of Labor. You must also demonstrate that you worked for the first employer for a certain period of time. You could start the work with the new employer after you get the H1B transfer receipt from the USCIS, but it is always recommended to start the new job after the USCIS's adjudication is made.

If the company I work for gets taken over or merges with another company, how will that affect my H-1B status?

Takeovers, reorganizations and mergers happen often among US companies, but H-1B workers should note that these usually do not affect your status. In principle, as long as the new company is the old company's "successor in interest," and as long as the H-1B worker's work conditions and responsibilities stay the same, there is no need to amend the original H-1B visa. So what is a "successor in interest"? To put it simply, it means that the new company takes over the old company's capital and accepts the old company's rights and liabilities. If the new company does not completely accept the old company's rights and liabilities, then it may not meet the requirements for a successor in interest, and may need to amend the original H-1B petition or make other changes. Since no two company mergers or takeovers are the same, whether or not the changes will affect the status of H-1B workers should be determined on a case by case basis. For instance, a change in the company's name is not regarded as a major change and does not need to be immediately reported to USCIS; you can wait till you apply for an extension of status. But if you need to travel abroad, then upon your return you may be questioned by an immigration officer, and even if you bring along proof that the new company is a "successor in interest," this may not be enough. Therefore in this case it's best to amend the H-1B visa petition ahead of time.

How can I maintain legal status if I am laid off?

An H-1B worker who is laid off loses H-1B status on the date of termination. Therefore, you will need to come up with a plan of action before your termination date. It is crucial to maintain legal status in the US. The best course of action is to find a new employer who can submit an H-1B transfer application on your behalf before you are laid off. Waiting until after you have been terminated makes it much more difficult. Once the new employer has submitted an H-1B transfer petition on your behalf, you can begin working for the new employer immediately; you do not need to wait until the petition is approved. If you are unable to find an employer who will apply for an H-1B transfer on your behalf, but you have started to adjust status and have an EAD, then you can work for another employer using the EAD. In addition, you can also change to other non-immigrant visas statuses such as B-1, B-2, F-1, F-2 or H-4 temporarily until you can find a new employer, but this is of course a measure of last resort.


The above is a general introduction to immigration policies, and should not be construed as individual legal advice. For specific legal questions, please contact the Law Offices of Yu & Associates. Attorney Xiaohui (Sharon) Yu is a graduate of New York University School of Law, one of the top five law schools in the US, and has practiced law at some of the top firms in the US, UK and China.

Tel: 301-838-8986, Fax: 202-595-1918; E-mail: syu@yulegal.com, Address: 110 N. Washington St., Suite 328E, Rockville, MD 20850. (All rights reserved.)

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