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What if I change jobs or lose my job while in H-1B status?

Law Offices of Yu & Associates

For those who hope to eventually become permanent residents in the US, including the large numbers of H-1B visa holders, it is important to maintain legal status in the US, to avoid any problems when it finally comes time to adjust status. But the path to obtaining a green card can be very long, and during this time, it's unavoidable that some H-1B visa holders will encounter the difficulties of having to change jobs or losing their employment. Below, based on her experience handling numerous H-1B cases, Attorney Xiaohui Yu discusses how H-1B visa holders can deal with these difficult situations.

What should H-1B visa holders keep in mind when changing jobs?

If an H-1B visa holder wants to change jobs, he or she can apply for an H-1B transfer, which is not limited by the annual cap on the number of H-1B visas. In principle, at least, H-1B transfers are not subject to the annual cap. But it's important to note, if you obtained your visa through a cap-exempt petition, such as through an employer who is an institution of higher education, non-profit research organization or government research organization, but your new employer is not cap-exempt, then you should proceed carefully, because your H-1B transfer petition would be subject to the cap. In this situation, you must be very mindful of the time frame, since the annual cap fills up extremely quickly.

When applying for an H-1B transfer, you will need to show that your previous employer maintained your salary at the level specified in the original H-1B petition, and the standard set by the Department of Labor. You also need to show that you worked for the original employer for a certain period of time. The salary from the new employer must also meet the standard for prevailing wage. If after applying for an H-1B transfer, you shortly decide to return to the original company, this is possible as long as the original employer has not cancelled your H-1B visa.

In addition, if you leave your present employer to start your own company, you can apply for H-1B status through your own company, as long your company's work in is in your professional specialty. Even when working for your own business, you must pay yourself a salary that meets the prevailing wage standards. In order to remain qualified for H-1B status, you must pay yourself this salary even if the company suffers a loss.

If an H-1B worker loses his or her job, what should the worker do to maintain legal status?

The H-1B worker must find a solution to the problem of maintaining status before his or her employment ends. It is crucial to maintain legal status in the US if one wishes to apply for a green card; under no circumstances should this issue be ignored. In principle, there are two potential solutions to the problem of losing your H-1B employment. The first way is to find another employer who can submit an H-1B transfer petition for you before your current employment ends. Waiting until after you have been laid off is too late and will make the process of changing employers much more difficult. Once the new employer has submitted an H-1B petition on your behalf, you can then begin to work for the new employer without needing to wait for the petition to be approved. However, if the original employer is willing to keep you until the transfer is approved, this is of course the safest course of action.

The other way to maintain legal status after losing your H-1B employment is to change to another nonimmigrant status, such as B-2, F-1, F-2, H-4 or L-2, until you can find a new job. If you have already submitted an application for employment-based immigration or family immigration, though, changing to a B or F visa may be difficult, because unlike H or L visas, B and F visas do not allow dual intent (having immigrant and nonimmigrant intent at the same time). Also, if you have already received an Employment Authorization Document (EAD) as part of adjusting status, you can also use your EAD to work for a new employer.

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:, Address: 110 N. Washington St., Suite 328E, Rockville, MD 20850. (All rights reserved.)

Ó Yu & Associates LLC, 110 North Washington Street, Suite 328E, Rockville, MD 20850, USA. Tel: 301-838-8986