H-1B VALIDITY AND CONCURRENT EMPLOYMENT


	LAW OFFICE OF AJAY K. ARORA Empire State Building 350 Fifth Avenue, Suite 2806 New York, NY 10118 Phone: (212)268-3580 Fax: (212)268-3582 Email: info@h1b1.com

Disclaimer: This article is not intended to establish an attorney-client relationship. All information contained herein is generalized. Any reliance on information contained herein is taken at your own risk.

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H-1B VALIDITY AND CONCURRENT EMPLOYMENT

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 the portability rules of H-1B status, 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 a part-time job, 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 his or her current H-1B status, the situation is treated as an extension of stay. The words “H-1B transfer” are bandied about by less than fully informed persons, but the USCIS utilizes the term “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 both in situations 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, as well as in situations where an H-1B petition is filed by a second employer where the second employer wants to employ the candidate. Since the beneficiary has already been documented to have the credentials for H-1B status, less extensive documentation may be necessary to establish his or her continuing eligibility with subsequent H-1B petition filings. At the same time, each H-1B petition is considered independently of another on its merits, and there have been instances where an H-1B extension has been denied 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. The H-1B petition should be prepared by an experienced immigration practitioner.

What happens when two employers file H-1B petitions for the same alien, the beneficiary 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 alien. The petitions are duly approved. The alien beneficiary elects to work for Employer A, and obtains a visa naming Employer A as the petitioner. The alien beneficiary enters the U.S. with this multi-year, multiple-entry H-1B visa and commences employment as per the terms and conditions of Employer A's petition.

Several months later, the alien 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 alien beneficiary 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 alien's employment. Therefore, Employer B should have notified the USCIS as soon as it was discovered that the alien 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."

Please contact our law firm if you have any questions.

[Note: Please consult with an attorney specializing in Immigration & Nationality law for professional advice in specific situations.]

Ajay K. Arora, Esq., is a prominent member of the Immigration & Nationality bar in New York City and a member of the American Immigration Lawyers Association. He may be contacted at (212)268-3580.