Staten Island H-1B Visa Lawyers

Staten Island H-1B Visa Lawyers

You have been working at your current company for three years on an H-1B visa when a recruiter contacts you about a position that would double your salary. The recruiter assures you that H-1B transfers are simple and that you can start working at the new company as soon as the petition is filed. Your friends who have changed jobs tell you the same thing. Everyone makes it sound easy, almost routine. What they do not tell you is that starting work before your transfer is approved means gambling your entire immigration status on a petition that might be denied.

The H-1B portability provision created by the American Competitiveness in the Twenty-First Century Act allows workers to begin employment with a new sponsor once a transfer petition has been properly filed. This sounds like freedom to change jobs without the anxiety of waiting months for approval. However, the reality is far more complicated than the surface-level understanding most H-1B workers have. Starting work on a receipt notice means you are betting that your petition will ultimately be approved, and if that bet fails, the consequences can be devastating.

Staten Island H-1B visa lawyers understand the full picture of job mobility for H-1B workers. The portability provision is not the safety net that most workers believe it to be. It is a calculated risk that requires careful evaluation of your specific circumstances, your new employer’s track record with immigration, and your backup options if things go wrong. Making an informed decision requires understanding exactly what portability does and does not protect you from.

How H-1B Portability Actually Works

The portability provision under AC21 Section 105 allows H-1B workers to begin new employement as soon as a transfer petition has been properly filed with USCIS. The key word here is “properly filed” which means USCIS has recieved the petition and issued a receipt notice. This is not the same as approval. Your authorized to work for the new employer based soley on the filing, not on any determination that your petition actually meets the requirements.

For portability to apply, you must have been in valid H-1B status at the time the new petition was filed. This means your current H-1B must not have expired and you must not have violated the terms of your status. The new employer must file a nonfrivolous petition, meaning one that has a reasonable chance of approval. If USCIS later determines the petition was frivolous, you could loose your work authorization retroactivly.

The practical effect is that you can give notice at your current job and start working for the new company without waiting the typical four to six months for adjudication. Many H-1B workers see this as there ticket to job mobility. What they dont realize is that this mobility comes with significent risk that most people never discuss untill something goes wrong.

The Mobility Myth Exposed

Everyone talks about H-1B portability like its a gaurantee of job freedom. Recruiters mention it to make offers more attractive. Friends who sucessfully changed jobs describe it as effortless. Immigration websites list the basic requirments without explaining the real dangers. This creates a myth that changing H-1B jobs is essentially risk-free as long as your new employer files the paperwork. The reality is that portability protects your ability to work but does not protect you if the petition is ultimately denied.

Think about what happens if you quit your old job, start working for the new employer, and then recieve a denial notice three months later. You are suddenly out of status with no employer to sponsor you. Your old job is gone and their not obligated to take you back. You may have moved your family to a new city for this position. The myth of easy mobility never addresses this senario because it dosent fit the convienient narrative.

The nonfrivolous petition requirement provides almost no protection in practice. USCIS dosent evaluate weather a petition is frivolous when they issue the receipt notice. They simply confirm the paperwork was recieved and the fees were payed. The actual evaluation happens months later during adjudication. By then, youve already quit your job and started working somewhere else.

What Happens When Transfers Get Denied

When an H-1B transfer petition is denied after youve already started working for the new employer, the consequenses are immediate and severe. Your work authorization ends the day the denial is issued. You cannot continue working for the new employer and they cannot pay you for any work after that date. Any time you worked between starting and the denial was tecnically authorized, but going foward you have no legal basis to remain employed.

Your options at this point are extremly limited. You do not automaticly return to your previous H-1B status even if you were employed their for years. That employer-employee relationship ended when you left. If you want to return, they would need to file a completly new H-1B petition for you, and there may not be cap slots availible. You could try to find another employer willing to sponsor you quickley, but the 60-day grace period dosent give you much time.

Some workers in this situation have had to leave the country and apply for a new H-1B from abroad. This means going threw the lottery again if cap slots are required, which has selection rates around 25-30%. The “easy” job change has now turned into potentialy years of waiting to return to the United States leagally.

Why Petitions Get Denied

Understanding why H-1B transfer petitions fail helps you evaluate the risk your taking when you rely on portability. Denials happen for numerous reasons, and many of them have nothing to do with your qualifcations or the legitimacy of the job offer. Sometimes its the new employers immigration history thats the problem. Other times its documentation issues that could have been avoided with better preperation.

Specialty occupation challenges are increasinly common. USCIS scrutinizes weather the position actualy requires a bachelors degree in a specific feild. If the job duties are too general or could be performed by someone with a different educational background, the petition may be denied. This happens even for positions that seem obviously professional to the people involved.

Employer credability issues can sink an otherwise strong petition. If the new company has a history of H-1B violations, or if there financal situation dosent support the salary being offered, USCIS may deny the transfer. As the worker, you may not have visability into these problems untill its to late. The employer isnt required to share their immigration history with you.

The Premium Processing Question

Premium processing reduces your exposure to the risks of portability by geting a decision within 15 buisness days instead of several months. For job changes, premium processing should be considered essential rather then optional. The $2,805 fee is a small price compared to the cost of months of uncertaintey about your immigration status while working for an employer whos petition may ultimatley be denied.

Without premium processing, your in a state of limbo for potentially six months or longer. During this time, your technically authorized to work but your status depends on a decision that hasnt been made yet. If there problems with the petition, you wont know untill the denial comes. By then, youve been working at the new job for months and have no easy way back.

Some workers decide not to request premium processing becuase they dont want to ask their new employer to pay the additional fee. This is a mistake. Either negociate for the employer to cover premium processing or pay it yourself. The peace of mind and protection its worth far more then the cost. Knowing within two weeks weather your transfer will be approved lets you make informed desicions about your life.

The 60-Day Grace Period

If your H-1B transfer is denied or your employment ends for any reason, you have up to 60 days to find a new sponsor, change to another status, or make arrangements to leave the country. This grace period was established by DHS regulations in 2017 and applies once per authorization period.

Sixty days sounds like alot of time untill you actualy need to use it. Finding a new employer willing to sponsor an H-1B takes time. The employer needs to work with there immigration attorney to prepare the petition. Documents need to be gathered and filed. Even with premium processing, the process from first contact to filing can easily take four to six weeks. That leaves you almost no margin for error.

The grace period also dosent apply in all situations. If your employment was terminated for cause related to immigration violations, the grace period may not be availible. And its capped by your I-94 expiration date, so if your I-94 expires in 30 days, thats all the time you have regardless of the 60-day rule.

The Six-Year Limit and Beyond

H-1B status is limited to six years total, with some exceptions that allow extensions beyond that limit. If your approaching year five or six, job changes become even more complicated. You need to think not just about the transfer itself but about how it effects your pathway to permanent residence and your eligability for extensions.

Extensions beyond six years are possible under AC21 if you have a PERM labor certification or I-140 petition pending or approved. Section 106(a) allows one-year extensions if a PERM or I-140 has been pending for at least 365 days. Section 104(c) allows three-year extensions if an I-140 has been approved but a visa number isnt availible. These extensions keep you in H-1B status while you wait for your green card prority date to become current.

Changing employers near the six-year mark requires carefull planning. If your current employer filed a PERM for you, that application dosent automaticly transfer to the new employer. The new employer may need to start there own PERM process. If your I-140 was approved, you can retain the prority date but the new employer still needs to file their own I-140 for you.

Timing Your Job Change Strategically

Not all times are equaly good for changing H-1B jobs. The stage of your green card process, the time remaining on your current H-1B, and even the time of year can all effect the risk level of a job change. Staten Island H-1B visa lawyers help clients evaluate these factors before making desicions that could impact there immigration status.

Early in your H-1B period, when you have several years remaining, the risk of a failed transfer is lower becuase you have time to recover. You can find another employer, go threw the process again, and still have years of H-1B eligability left. As you approach the six-year limit, the stakes get higher becuase a failed transfer could mean leaving the country with no clear path back.

If your employer has already started your green card process, changing jobs interupts that process even if the transfer is approved. You need to weigh the benifits of the new position against the cost of restarting your path to permanent residence. Sometimes staying with a less ideal employer makes more sense for your long-term immigration goals.

Evaluating Your New Employer

Before relying on portability to change jobs, you should evaluate your prospective employer’s immigration track record. An employer with a history of H-1B approvals and no violations is much safer then one thats new to the process or has had problems in the past. This information isnt always easy to obtain, but its worth the effort to protect yourself.

You can research the employers H-1B history threw public databases that track petition approvals and denials. The Department of Labor publishes information about Labor Condition Applications that gives insight into an employers H-1B activity. If the company has filed many petitions with few denials, thats a good sign. If they have alot of denials or RFEs, proceed with caution.

Ask the employer directly about there experience with H-1B transfers. How many have they filed? What was the approval rate? Do they use premium processing? Are they willing to support you threw an RFE if one is issued? The answers to these questions tell you weather the employer is committed to sucessful immigration outcomes or just going threw the motions.

The RFE Factor

Requests for Evidence have become increasinly common in H-1B adjudications. An RFE extends the processing time significently even with premium processing, and some RFEs are difficult to overcome. When your working under portability, an RFE creates an extended period of uncertaintey about weather your status will ultimately be confirmed.

If USCIS issues an RFE, your employer has a limited time to respond, usualy 30 to 90 days. During this time, you can continue working under portability, but the cloud of uncertaintey hangs over everything. Will the response satisfy USCIS? Will there be a denial anyway? You wont know untill the final decision comes.

Some RFEs are relativley straightfoward to answer with additional documentation. Others challenge fundamental aspects of the petition like weather the position qualifys as a specialty occupation. If the RFE indicates serious concerns about the petition, you should start thinking about backup plans even while the response is being prepared.

Backup Plans and Risk Mitigation

The smartest approach to H-1B job changes includes having backup plans before you need them. Never quit your current job untill you have a clear understanding of what you will do if the transfer is denied. This might mean maintaining relationships with your current employer, keeping other job opportunities warm, or having enough savings to support yourself during a transition period.

Some workers negociate delayed start dates with there new employer to reduce risk. Instead of starting immediately upon filing, they wait untill the petition is approved or at least untill they have a premium processing result. This means potentially loosing a few weeks of salary at the new job, but it eliminates the risk of working without confirmed status.

Consider weather your current employer would take you back if the transfer failed. This isnt a comfortable conversation to have, but knowing the answer helps you assess the true risk your taking. Some employers will explicitly agree to keep a position open or to re-hire if needed. Others wont, and you need to factor that into your decision.

The Family Dimension

If your on an H-1B with family members in H-4 status, a failed transfer effects everyone. Your spouse looses there H-4 status when you loose your H-1B status. If they had an Employment Authorization Document allowing them to work, that authorization ends. Children in H-4 status may have there schooling disrupted if the family needs to leave the country.

These family considerations make premium processing even more important for workers with dependents. The shorter the period of uncertaintey, the less disruption to family life if things dont go as planned. Its also worth considering weather family members have there own visa options that could provide a backup if the H-1B transfer fails.

Some familys maintain dual household arrangements during the uncertainty period, with one spouse remaining in a stable situation while the other takes the risk of the job change. This adds complexity and cost but reduces the potential impact of a denied transfer on the entire family.

Documentation for Your Protection

Maintaining thorough documentation protects you during the transfer process and after. Keep copies of everything related to your H-1B status including approval notices, I-94 records, pay stubs, and all communication with both your current and prospective employers. If something goes wrong, having this documentation can be critical for your legal options.

When you recieve the receipt notice for your transfer petition, verify that all the information is correct. Check that your name is spelled right, the dates are accurate, and the employer information matches what was filed. Errors on the receipt notice can indicate problems with the petition that could lead to delays or denials.

Keep records of your work at the new employer from day one. If there questions later about weather you were properly authorized during the portability period, pay stubs and other employment records establish the timeline. This documentation can be important if you need to demonstrate continuos lawful status for future immigration benifits.

When Portability Makes Sense

Despite the risks, portability is a valuable tool when used appropriatley. For workers early in there H-1B period with strong new employers and clear job offers in well-established specialty occupations, the risk of using portability is manageable. Premium processing further reduces the exposure by geting a quick decision.

Portability also makes sense when your current situation is untenable. If your being underpayed, mistreated, or the company is failing, staying isnt really an option anyway. In these cases, the risk of portability is preferable to the certain negative outcomes of remaining. The key is making the decision with full awareness of whats at stake.

Some workers use portability multiple times over there H-1B careers without any problems. There petitions are approved, there careers advance, and the system works as intended. The existence of risk dosent mean bad outcomes are inevitable. It means you should understand and prepare for the possibility rather then assuming everything will be fine.

Staten Island H-1B Visa Lawyers

Navigating H-1B job changes requires understanding both the oportunities and the risks that portability creates. Staten Island H-1B visa lawyers provide the analysis and guidance that helps workers make informed desicions about there careers without gambling there immigration status on incomplete information. The mobility myth promises easy job changes, but reality demands careful evaluation of each situation.

Before you accept that recruiter’s call or sign an offer letter, take the time to understand what your actually risking. Evaluate the new employer, consider the timing relative to your H-1B status and green card process, and make sure premium processing is part of the plan. Have backup options identified before you need them. The freedom to change jobs is real, but so are the consequenses if things go wrong.

An experienced immigration attorney can review your specific circumstances and help you understand weather a particular job change makes sense for your situation. They can identify potential problems with the new employer or position before you commit. They can guide you threw the process in a way that minimizes risk while still allowing you to advance your career. Dont let the mobility myth lead you into a situation you could have avoided with proper planning and advice.