Navigating career opportunities as an employment-based visa holder can be challenging, especially when it comes to changing employers. For individuals on H-1B, EB-2, or EB-3 visas, moving to a new job requires careful attention to regulations to avoid jeopardizing visa status. This guide breaks down the process and critical steps for successfully changing employers while maintaining your visa.
Legal Basis of Job Portability
The legal basis for job portability stems primarily from the American Competitiveness in the Twenty-First Century Act (AC21), which allows certain visa holders more flexibility to change jobs. This law, along with subsequent updates from U.S. Citizenship and Immigration Services (USCIS), provides specific guidelines that allow individuals in the H-1B, EB-2, and EB-3 categories to change employers without starting their immigration process from scratch. However, understanding the unique requirements of each visa category and the specific steps involved is essential for a seamless transition.
Job Portability for H-1B Visa Holders
Transfer Process Overview
For H-1B visa holders, the transfer process involves filing a new H-1B petition with the prospective employer. Here’s a breakdown of the process:
- Obtain a Job Offer: Obtain a job offer from a new employer willing to sponsor your H-1B visa transfer.
- File the Petition: The new employer must file an H-1B transfer petition, which includes a Labor Condition Application (LCA) approved by the Department of Labor.
- Start Work After Filing: A significant benefit of the H-1B transfer process is that you can start working for the new employer as soon as the USCIS receives the transfer petition. This portability allows for continuity of employment without waiting for final approval.
Portability during transfer approval
While H-1B visa holders can begin working with the new employer as soon as USCIS receives the transfer petition, there’s always the possibility of delays or even denials. If the transfer petition is denied, the visa holder would have to stop working for the new employer and, if they have left their previous job, find a way to maintain their legal status. Therefore, it’s important to have backup options or to consult with an immigration attorney if the transfer is taking longer than expected or if there are potential problems with the case.
Maintain status
To ensure a seamless transfer, it’s important to avoid employment gaps between leaving your current employer and starting with your new employer. An H-1B visa holder should not leave the previous job until the transfer petition is filed by the new employer, as this minimizes the risk of status violation.
Practical Challenges
Sometimes USCIS may issue a Request for Evidence (RFE), which can delay the approval of the transfer. An RFE usually requires additional documentation and clarification. H-1B holders should work closely with their new employer to respond promptly to an RFE to avoid delays or denials that could jeopardize their ability to continue working.
Job Portability in the EB-2 and EB-3 Categories
For individuals on EB-2 and EB-3 visas, job portability is more complex and typically applies to those who have already begun the green card process. The AC21 Act provides some flexibility for these visa holders to change employers without restarting the green card process, provided certain conditions are met.
Key Requirements
- “Same or Similar” Job Requirement: The new position must be in the “same or similar” occupation as the one listed on the labor certification (PERM) petition. This is critical to avoid resetting the green card process.
- 180-day rule for I-140 approval: For EB-2 and EB-3 holders, the I-140 (Immigrant Petition for Alien Worker) must have been approved for at least 180 days before the applicant can change employers under the AC21 portability provisions. This rule allows the original priority date to remain intact even if the applicant changes jobs.
Notification Process
When changing employers, it is important to notify USCIS. The new employer should provide evidence that the new position is similar to the previous one, and may need to provide documentation that the new position meets the “same or similar” requirement.
Retention of Priority Date
A key benefit of AC21 portability is the ability to retain the priority date from the original I-140 petition. This date is critical to green card processing timelines. As long as the new job meets the “same or similar” requirement and the I-140 has been approved for 180 days or more, the applicant retains their place in line for green card processing.
Key Considerations for a Successful Job Transition
Documentation and Proof of Eligibility
A successful transition depends on the preparation of all necessary documentation. This includes
- Approved I-140 petition (if applicable).
- Proof of job similarity if in EB-2 or EB-3 category.
- Labor Condition Application (LCA) approval if in the H-1B category.
Role of Legal Advice
Immigration law is complex and constantly evolving, so consulting an immigration attorney is highly recommended. An attorney can help with legal nuances, ensure that all documentation is in place, and reduce the risk of delays or denials.
Timing and Planning
Timing the transition is critical. Ideally, visa holders should avoid gaps in employment, as extended gaps could result in status violations. For H-1B holders, this means not leaving the current employer until after the transfer petition has been filed. EB-2 and EB-3 holders should ensure that they’ve met the 180-day rule and obtained documentation of “same or similar” job orientation before notifying USCIS.
Employment Gaps and Impact on Dependents
Employment gaps can also affect dependents, especially those on H-4 or H-4 EAD. Make sure your status remains legal to avoid disrupting the status of your dependents.
Addressing the unique challenges of portability
Changing Employers While Applying for an Extension
While a visa holder is waiting for an extension decision, changing employers can create additional complications. It’s critical to notify USCIS and have the new employer file a new extension or transfer petition to maintain status.
Special Considerations for Green Card Applicants
For EB-2 and EB-3 applicants who are nearing the end of their green card process, it’s often wise to carefully weigh the pros and cons of changing jobs. A new position, if not carefully aligned with USCIS standards, could jeopardize the applicant’s priority date and delay green card approval.
USCIS delays and policy changes
USCIS processing delays and policy changes are common. For example, long wait times for transfer or extension petitions can disrupt job portability plans. Visa holders should stay abreast of processing times and work closely with their legal counsel to address any delays in a timely manner.
Case Scenarios
Scenario 1: H-1B Holder Transfer with RFE
Consider an H-1B visa holder who accepts a job offer and files a transfer petition, but then receives an RFE. In this case, the individual should work closely with the new employer to provide the required evidence quickly, as delays could affect the start date and overall transition.
Scenario 2: EB-3 Holder Changing Jobs After I-140 Approval
Imagine an EB-3 holder with an approved I-140 who changes to a “same or similar” job with a new employer. After fulfilling the 180-day rule, he notifies USCIS of the change. Since the new role is consistent with their previous job duties, they are able to retain their priority date and continue the green card process smoothly.
Scenario 3: Complex transfer due to USCIS delay
An H-1B petitioner awaiting approval of a transfer may experience lengthy processing delays. To manage this, they may consider premium processing (if available) to expedite the petition and avoid status gaps.
Conclusion: Successfully Navigate Job Changes
Changing employers on an employment-based visa involves several steps and regulations, but with careful planning and adherence to USCIS requirements, it’s achievable. By understanding the legal framework, preparing documentation, and seeking timely legal advice, visa holders can confidently transition to new employment opportunities without jeopardizing their visa status.
