Understanding U.S. immigration law can be challenging, especially for H-1B visa holders. The American Competitiveness in the Twenty-First Century Act (AC21) offers increased flexibility for H-1B visa holders seeking to change employers or pursue concurrent employment. However, these rules can be intricate and require careful consideration. Here, we discuss the rules for changing or adding employers on an H1B visa.
Filing vs. Approval
A key aspect of H-1B portability under AC21 is understanding the difference between filing and approving Form I-129. This form is the petition for a nonimmigrant worker, and for H-1B visa holders, it plays a crucial role in job transitions and concurrent employment. Under AC21, an H-1B worker can begin working for a new or additional employer as soon as the new employer files Form I-129 and receives it from the U.S. Citizenship and Immigration Services (USCIS). This means the worker does not have to wait for USCIS to approve the petition before starting the new job, allowing for a smoother and faster transition. This provision significantly reduces the downtime between jobs, minimizing the risk of employment gaps and ensuring continuous work authorization. It also enables H-1B workers to pursue multiple job opportunities simultaneously, enhancing their career flexibility and prospects without jeopardizing their H-1B status.
Concurrent H-1B Employment
For H-1B visa holders looking to work for more than one employer simultaneously, the AC21 Act provides a valuable provision known as concurrent H-1B employment. This allows you to start working for a new employer while retaining your existing H-1B employment as soon as the new employer files Form I-129 and USCIS receives it. This means you don’t have to wait for the petition to be approved to begin your new job. This flexibility is especially beneficial for professionals aiming to broaden their career opportunities, as it enables them to explore additional roles and income sources without disrupting their current H-1B status.
Maintaining Valid H-1B Status
To take advantage of H-1B portability under the AC21 Act, it is crucial to maintain valid H-1B status when the new petition is filed. This means you must have adhered to all the terms and conditions of your current H-1B visa, including not engaging in unauthorized employment since your last lawful admission to the U.S. Unauthorized employment can jeopardize your visa status and disqualify you from using the portability provisions. Ensuring that you comply with all visa requirements, such as working only for authorized employers and within the specified terms of your visa, is essential. Valid status also includes timely extensions or transfers of your H-1B status and staying within the authorized period of stay.
Ensuring Compliance
Before commencing employment with a new or additional employer under H-1B portability, it is essential to ensure compliance by having proof that the new Form I-129 petition has been filed and received by USCIS. This proof typically comes as a receipt notice issued by USCIS, which confirms that they have received the petition. This documentation is crucial for demonstrating that you are adhering to immigration regulations and maintaining lawful status. It proves that your new employment is authorized under AC21 provisions and protects you from potential legal issues related to unauthorized employment. Without this receipt notice, you may risk violating immigration laws and jeopardizing your visa status and future employment opportunities. Therefore, always secure and retain the receipt notice before starting work with a new employer to ensure full compliance with all immigration requirements.
Assessing the Risk of Denial
While H-1B portability provides significant benefits, such as the ability to start working with a new employer before petition approval, it is essential to be aware of the risks involved. One significant risk is the potential denial of the new I-129 petition. If USCIS denies the petition, your employment authorization with the new employer will terminate immediately, which could leave you without a legal basis to continue working or remaining in the U.S. This sudden loss of authorization can have profound implications, including job loss, disruption of income, and potential impacts on your visa status. Preparing thoroughly before making a job change is crucial to mitigate these risks. This includes ensuring the new employer’s petition is complete and accurate, seeking legal advice to strengthen the petition, and having a backup plan in case of denial. Understanding this risk and planning accordingly helps you make informed decisions, ensuring you maintain your legal status and career stability.
Conclusion
The AC21 Act provides flexibility for H-1B visa holders, enabling smoother transitions between employers and concurrent employment opportunities. Understanding these provisions is essential for making informed decisions and maintaining legal status in the U.S. Given the complexity of H-1B portability rules and potential risks, consulting an experienced immigration attorney is often advisable. Contact one of our experienced immigration lawyers for assistance with your H-1B visa.
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