H-1B: Switching Employers

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boardkat
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H-1B: Switching Employers

Post by boardkat »

I've heard that switching employers while on a H-1B visa isn't too complex; but what is the process with respect to timing? For example, if I'm currently working for company A but want to work for company B, and B submits the necessary paperwork, how long am I permitted to continue working with A and when can I start with B? The reason I ask is that my current employer has been known to let employees go immediately who jump ship, once they've given their generally accepted notice of 2 weeks, putting them between a rock and a hard place. I just want to make sure that if I find myself in that position, I won't have any issues continuing to work on an H-1B with my new employer.

- bkat
nelsona
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Post by nelsona »

Don't think of this move as 'switching' your H1.

Think of it rather as simply getting a second h1.

You are free to work at Firm B the moment your I-129 is recieved by USCIS. This does nothing to the validity of your 1st H1. it remains valid as long as you and Firm A wish it to.

Once I-129 receipt is in your hands, you can give notice (or not) to Firm A and walk over to Firm B. This would keep you in continuous h status.

BTW, unless specifically outlined in your contract, notice by you is merely a courtesy, not mandatory.
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boardkat
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Post by boardkat »

nelsona wrote:Don't think of this move as 'switching' your H1.

Think of it rather as simply getting a second h1.

You are free to work at Firm B the moment your I-129 is recieved by USCIS. This does nothing to the validity of your 1st H1. it remains valid as long as you and Firm A wish it to.

Once I-129 receipt is in your hands, you can give notice (or not) to Firm A and walk over to Firm B. This would keep you in continuous h status.

BTW, unless specifically outlined in your contract, notice by you is merely a courtesy, not mandatory.
Thanks for your advice Nelson - much appreciated!

One followup question - is there any point in starting a GC app on my current H-1B visa if I intend to switch companies in the near future? I seem to recall that changing employers causes any GC app currently in process to be abandoned.

- bkat
Jaspal
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Post by Jaspal »

Nelson, I am on H1-B with Labor and I-140 already approved under EB2 (but waiting for GC due to numeric limitation based on birth country, which may take another year or more). How can one move to another employer with similar job without losing priority date. Is there is any condition when fresh Labor by new employer can be avoided?
nelsona
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Post by nelsona »

As I understand it, to keep PD, you need to file PERM and then I-140, and get I-140 in before previous employer kills your old I-140, or uses it for someone else.

Things get real tricky when trying to port PD before having qualified for AC21 benefits (ie. after I-485 has been pending for 6 months). best consult a lawyer before attempting.
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Jaspal
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Post by Jaspal »

Thank you Nelson for a quick response. AC21 doesn't come into picture as I can not even apply for I-485. Should new employer apply for PERM and I-140 while I am still with the old employer? Job description can be quite the same as before. With first employer, Labor was applied first, and then PERM after a year, but original Labor PD was retained in PERM and subsequent I-140.
nelsona wrote:As I understand it, to keep PD, you need to file PERM and then I-140, and get I-140 in before previous employer kills your old I-140, or uses it for someone else.

Things get real tricky when trying to port PD before having qualified for AC21 benefits (ie. after I-485 has been pending for 6 months). best consult a lawyer before attempting.
nelsona
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Post by nelsona »

If the new employer is willing to do all this up front, go for it.

The key is to get it done before your original sponsor pulls the plug (by revoking or substituting labor), which he is less likely to do if you are still working there.
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Jaspal
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Post by Jaspal »

For a EB-2 case where PERM and I-140 are already approved (but PD is not yet current), can new employer (for the same same job description) straight away apply for I-140? Idea is to save time taken by PERM and preserve original PD.
nelsona wrote:If the new employer is willing to do all this up front, go for it.

The key is to get it done before your original sponsor pulls the plug (by revoking or substituting labor), which he is less likely to do if you are still working there.
nelsona
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Post by nelsona »

He still has to do PERM and I-140. While the PD 'belongs' to you, the PERM and I-140 still don't belong to the new employer.

You will still preserve your PD, it will be attached to the new I-140.
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Jaspal
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Post by Jaspal »

Thank you Nelson. I know it will be dealt by the attorneys, but I just want to make sure that my PD is not lost. Will the job description in the new PERM need to be exactly the same, or it could be 'more or less' the same. Who decides whether PD can be preserved; are basis thereof clearly defined in the law?
nelsona wrote:He still has to do PERM and I-140. While the PD 'belongs' to you, the PERM and I-140 still don't belong to the new employer.

You will still preserve your PD, it will be attached to the new I-140.
nelsona
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Post by nelsona »

There are better people and more knowledgeable boards than this one on which to enquire about this topic.

But, in fact, the PERM can be completely different. Many are using new PERMS with EB2 jobs to move their category from EB3. This are obvioulsy quite different PERM job descriptions, otherwise the category would not change.

Where job has to be 'similar' is in AC21 provisions, where one is NOT resubmitting PERM/I-140, but using one previously approved.
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Jaspal
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Post by Jaspal »

Nelson, that clarifies the issue. My attorny first sent for Labor certification, and then, after waiting for more than a year, applied under PERM. At this point, I was told, in order to preserve original PD job description in PERM must be same as in Labor app.
nelsona
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Post by nelsona »

Your lawyer was wrong.
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Jaspal
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Post by Jaspal »

I-140 approved, but waiting for PD to be current: Under this situation, how long one should wait before changing a job, after PD becomes current and Concular processing is initiated (Being a Canadian I plan to choose this route for faster processing). I know under AC21 one should wait 6 months, but I have noticed that people don't wait that long. They advise USCIS about the job change without any problems from them, however. Is this process in order, or USCIS just don't care at this stage.
nelsona
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Post by nelsona »

Without applying for i-485, there is NO provision in AC21 for porting I-140. You must have your new sponsor file PERM and I-140.

They can port their H1, but this this does not equate to GC sponsorship.
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