H-1B nonimmigrant category workers may be employed by several employers concurrently, e.g., a Systems Analyst employed by one company who also does consulting work for another company. If the H-1B worker has H-1B status from an employer and will continue to work for that employer while commencing new employment for a second employer, the second employer must file an H-1B petition requesting extension of H-1B status of the worker.
Under H-1B portability rules, the worker may start employment for the second employer as soon as the petition has been filed; there is no requirement to wait for approval of the H-1B petition. Part-time employment through the second employer is fine as long as the petition states that it is for part-time work, and as long as the position is still a specialty occupation requiring a relevant bachelor’s degree or foreign equivalent.
If the H-1B temporary worker wants to change employers and continue to maintain H-1B status, it is treated as an extension of stay. The words “H-1B transfer” is misleading. The USCIS term is “extension of status” since transfer of H-1B implies only one employer at a time. Thus, extension of H-1B status is the correct terminology and is applicable where an H-1B petition is filed by the same employer in order to extend H-1B status of an employee whose H-1B status is about to expire. It is also applicable when an H-1B petition is filed by a second employer.
Since the beneficiary has already been documented to have H-1B level credentials, less extensive documentation may be necessary to establish continuing eligibility in a subsequent H-1B petition. At the same time, each H-1B petition is considered independently of another on its merits, and there are instances of H-1B extension denial even though the petition requesting extension of status has been filed by the same employer. An earlier H-1B approval, even by the same employer, should never lead to complacency when extending status.
What happens when two employers file H-1B petitions for the same candidate, the candidate elects to work for one employer, but then changes his mind and commences work for the second employer? Does the second employer have to file a new or amended H-1B petition? An American Immigration Lawyers Association colleague described this actual scenario in a letter to Yvonne M. LaFleur, Adjudications Chief, USCIS Nonimmigrant Branch.
Two employers, A and B, file H-1B petitions for the same worker. The petitions are duly approved and H1B status granted. The beneficiary elects to work for Employer A. Several months later, the beneficiary becomes unhappy as an Employer A employee. He would prefer to work for Employer B. The question put to Chief LaFleur is whether Employer B can lawfully hire the worker under the authority of its already approved H-1B visa petition? (The job duties, place of employment and compensation in Employer B's H-1B visa petition are not changed). Must Employer B file a new or amended petition to accommodate this situation?
Chief LaFleur responded by stating the general rule that H-1B petitions are valid until revoked by the USCIS, the petitioner goes out of business, or the employer files a written withdrawal (revocation) of the H-1B petition. Therefore, there is no need for Employer B to file a new or amended petition.
Chief LaFleur cautions, however, that according to the regulations, an employer should immediately notify the USCIS of any changes in the terms and conditions of the beneficiary's employment. Therefore, Employer B should have notified the USCIS as soon as it was discovered that the beneficiary was not intending to avail himself or herself of the offer of employment. In conclusion, however, "since the regulations do not contain a penalty for failing to notify the Service in this instance, the petition filed by Employer B remains valid."
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[Note: Please consult with an attorney specializing in Immigration & Nationality law for professional advice in specific situations.]