Changing H-1B Employers

Erick Widman

So, you’ve gone through the H-1B lottery system and won! Now you and your employer can work together happily ever after (or at least until your H-1B status expires).

But what happens if your relationship with your employer sours or if another company expresses interest in hiring you and it would be a good move for your career? H-1B portability rules can help in these situations.

Here are some considerations you should take into account when thinking about changing H-1B employers:

  • Representation:In many situations, the attorney that filed the H-1B petition represents your H-1B employer or both you and the H-1B employer (“dual representation”). Either way, that attorney is likely not going to be able to provide you with advice regarding terminating your employment because a conflict of interest may arise. You should seek independent counsel regarding your rights and obligations when you are changing H-1B employers.
  • Grace Period(s): The 2017Final Rule on High Skilled Workersprovides H-1B workers with a grace period of up to 60 consecutive days – or until the expiration date of their current I-94, whichever is sooner – at the end of their employment. In the context of changing H-1B employers, this means:
    • H-1B workers who voluntarily leave their H-1B employment can take advantage of the 60-day grace period provision. You can leave your position and then find another employer within 60 days of leaving your job to file an H-1B petition on your behalf.
    • A worker may use the grace period only once for each validity period. For instance, if you lose your job and then use the grace period to change H-1B employers, you may still be eligible for another 60-day grace period should you lose that job. However, unused days in the first grace period cannot be carried over into a subsequent grace period.
    • Even if the new validity period filed by the new H-1B employer ends on the same date as the validity period of the petition filed by your former employer, you may be entitled to a new 60-day grace period because the regulations do not specifically state that new validity period = new time frame.
    • Keep in mind that USCIS has wide discretion to deny or shorten a grace period due to violations of status such as unauthorized employment, fraud, or criminal convictions.
  • Starting Work with New Employer: You can start working for the next H-1B employer after the application is received by USCIS — you do not need to wait until the petition is approved or even until you have received the I-797 Receipt Notice from USCIS.
  • Counted against the cap already: Per USCIS’ 2006 Aytes memo dated 12/5/2006, if your initial application has been counted against the H-1B cap within the past 6 years and you spent time in the US in H-1B status, and then left the US and wants to return in H-1B status, you have two options:
    • If you spent more than one year outside the US, you can choose to file an H-1B petition that is counted against the H-1B cap, and will be eligible for six full years in H-1B status (you can only request up to three years at a time), or;
    • You can choose to not be counted against the cap, and instead use the “remainder” time, or whatever amount of time you had left of the six year maximum in H-1B status;
    • Keep in mind that if you apply from outside the US, you must have the H-1B petition approved before you re-enter the US to work in H-1B status once again. Even if you still have a valid H-1B visa, you must have the approved new petition to show the officer at the port of entry, and that petition must be for the employer for whom you intend to work in the US.
  • Proof of maintaining lawful H-1B status: In some situations, you may want to leave a job due to not being paid at all or not being paid the correct prevailing wage under the Labor Condition Application filed with the initial H-1B petition. Without recent pay stubs or other proof of receiving the correct salary, you may not be show that you have been maintaining valid H1B status in order to change H-1B employers from within the United States. In this case, you will want to explore whether you can apply from outside of the United States.
  • Liquidated damages:Your H-1B employer can seek “liquidated damages” from you if you cease employment with the employer prior to an agreed date. For this reason, make sure that you closely review any contracts you have signed with your employer and analyze the language closely. Whether something is considered “liquidated damages” (allowed) or a “penalty” (not allowed) is to be made on a case-by-case basis in accordance with the applicable state law. Generally, liquidated damages are:
    • Fixed amounts agreed upon by the parties at the inception of the contract, that must take into account whether the contract breach is total or partial;
    • Reasonable approximations or estimates of the anticipated or actual damage caused to one party by the other party’s breach of the contract;
    • Never inclusive of the ACWIA H-1B filing fee, which is currently $750/$1500 depending on the size of the employer.

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