Can I Change Employers While on an Employment-Based Visa?

Can I Change Employers While on an Employment-Based Visa?

While employment-based visas are designed to facilitate work opportunities, they also come with strict rules and requirements that must be followed to remain in compliance with U.S. immigration laws. Below, we’ll explore the general process, legal considerations, and practical steps involved in changing employers while holding an employment-based visa.

Understanding the Basics of Employment-Based Visas

Employment-based visas, such as the H-1B, EB-2, and EB-3 categories, are typically tied to a specific employer and job role. This means that your legal right to remain and work in the U.S. hinges on the terms of the visa sponsored by your employer. If you wish to change employers, you must ensure the transfer is managed correctly to maintain your lawful immigration status.

The ability to change employers depends on your visa type. For example, individuals on H-1B visas can change employers through what is known as an H-1B visa transfer. This process allows the new employer to file a petition (Form I-129) on your behalf. The critical point to note is that you cannot start working for the new employer until this petition is properly submitted.

On the other hand, for those in categories like EB-1 or EB-2, the process might differ, especially if permanent residency or an approved green card application is part of your current immigration plan.

The Importance of Compliance

Remaining in compliance with immigration laws is non-negotiable when considering an employer change. Any missteps, such as leaving your current employer without filing the necessary paperwork or working for a new employer without approval, can have severe consequences. These might include falling out of status, facing visa revocation, or even being barred from reentry to the U.S.

Consider this hypothetical scenario: Sarah, an H-1B visa holder, receives a lucrative job offer from a new company. Eager to begin, she accepts the offer and starts working without waiting for the new employer to file an H-1B transfer petition. Later, during a routine USCIS review, the unauthorized work is discovered, jeopardizing her visa status and green card application. Compliance missteps like these can have lasting impacts on your immigration prospects.

Steps to Take When Changing Employers

When contemplating a change, it’s essential to approach the process methodically to safeguard your status and future opportunities. Below are practical steps to follow:

1. Understand Your Visa Terms

Before making any moves, review the terms and conditions of your visa. Consult with your immigration attorney to confirm whether your visa type allows for employer changes and what the applicable process entails.

2. Maintain Communication With the New Employer

Ensure your prospective employer understands the requirements for a visa transfer. They will typically need to file a petition (such as Form I-129 for H-1B holders) with the United States Citizenship and Immigration Services (USCIS). Work closely with their HR or immigration team to ensure accuracy and timeliness.

3. Timing is Key

Avoid gaps in employment that might affect your status. For visa types requiring a transfer petition, do not resign from your current role until the petition has been approved or, at a minimum, properly filed.

4. Keep Documentation Organized

Maintain copies of your current visa, I-94 records, and details of the new employer’s petition. These documents are crucial if questions arise about your status or eligibility.

5. Seek Legal Guidance

Given the complexities involved, consulting with an experienced immigration attorney is highly recommended. They can guide you through the specific requirements and help you avoid common pitfalls.

Contact Us For Help

Changing employers while on an employment-based visa is possible but requires careful planning and strict adherence to immigration laws. Staying informed about your obligations and working closely with legal and HR professionals can ensure a seamless transition. Remember, prioritizing compliance not only protects your immigration status but also supports your long-term professional and personal goals in the U.S.

If you are considering such a change and have questions, we at Hussain, Bendersky & Liston LLC are here to help. Our team can provide tailored guidance for your unique situation. Contact us today to discuss your options and next steps.