A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Thursday, October 1, 2015

H-1B Employees Changing Jobs


Some H-1B employees are already thinking about changing jobs at this time of the year, having won the visa lottery in April. Many of them are foreign students who are already working for their H-1B petitioners using OPT work authorization.  In the meantime, they were able to find better job opportunities and would like to switch employment.  However, there are certain issues they should consider before signing that new employment contract.

1) Visa CAP Preservation:  Although a person has been selected in the H-1B lottery, it does not mean that he can switch jobs to another employer any time he wants to.  In fact, in recent years, USCIS has taken the position that a person must have been clearly counted towards the visa CAP before they can claim exempt status in a subsequent petition.

For example, employer A filed an H-1B CAP petition on behalf of Johnny in April with a start date of October 1st, and the case was selected in the visa lottery and was ultimately approved.  In August, Johnny found a better paying job with employer B and decided to work for employer B, which filed a new H-1B petition for Johnny claiming H-1B exemption.  USCIS denied the case because in August, Johnny had not yet changed status to H-1B for the fiscal year beginning October 1st. Therefore, it is advisable to wait until after an employee enters H-1B employment in October before filing a new petition.

2) Maintenance of Status:  Generally speaking, one must maintain his immigration status at all times in order to be able to change or extend status in the future.  Using the example above, let's say Johnny reported to employer A on October 1st to begin H-1B employment but was told that the job was no longer available. Johnny spent the next few weeks looking for a new job. Luckily Johnny was offered a job by employer B, which also filed an H-1B petition on his behalf on November 1st.  However, although the H-1B petition was approved, the request for extension of status was denied by USCIS on the ground that Johnny had failed to maintain his H-1B status by virtue of the one-month gap.

3) Contractual Restrictions:  Some employment contracts contain restrictions on the employee's ability to leave the company.  For instance, the contract could impose "fines", "penalties", "damages", etc. if the employee quits within a pre-determined period of time. Often times, such restrictions are illegal under labor law and/or immigration law.   There are also non-competent clauses which usually restricts an employee's ability to work for competitors or to work within a geographic area for a certain period of time.  The legality of these clauses would depend on many factors including the extent of restrictions.  If your employment contract contains such restrictions, it is very important that you consult with a qualified attorney first before making any decision.

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