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Think about that you’re going by the H-1B visa approval course of by firm A, however firm B supplies you with a proposal that’s both safer or extra profitable. Earlier than you apply for an H-1B visa switch (or extra precisely, an H-1B petition with a brand new employer) earlier than stamping, contemplate discussing your scenario with a professional immigration lawyer. It’s going to assist guarantee that you’re making one of the best resolution.
The above instance, whereas not unusual, is only one attainable purpose that you could be wish to change the corporate you’re utilizing to enter the U.S. on an preliminary H1B approval. When deciding whether or not to get an H-1B visa switch earlier than stamping or after stamping, it helps to grasp the H-1B course of and how one can maneuver inside it.
When coping with USCIS visas and immigration, it may be straightforward to disrupt or sabotage your personal efforts by making a poor resolution throughout submitting or processing section. As a result of an interruption can imply months of delay, you will need to do issues fastidiously and with authorized steerage.
H-1B Portability
One of many nice advantages of the H-1B visa is the truth that you may switch your standing from one employer to the subsequent with relative ease. The truth is, the American Competitiveness within the twenty first Century Act (AC21) has made the switch course of even simpler. With the intention to switch, you’ll need to file a brand new petition. Nevertheless, underneath the AC21, it is possible for you to to begin working on your new employer as quickly because the petition is filed offered that you simply meet the next necessities:
- You had been lawfully admitted to the U.S.
- The petition is taken into account non-frivolous, which signifies that it’s based mostly on legislation or reality.
- You’ve got by no means been employed within the U.S. in an unauthorized method
- Your H-1B standing has already been authorized together with your present employer
*H1B portability guidelines don’t apply if the person has not but activated their H1B petition.
Why Ought to You Switch?
If you’re within the strategy of acquiring an H-1B visa, you already know that it’s a non-immigrant visa choice for overseas employees with particular data, schooling, or experience that may let you be employed by a U.S.-based group.
Due to this, you aren’t capable of petition by yourself behalf. As a substitute, your employer will file the required software with the USCIS. If the employer who initially despatched the appliance is both unwilling or unable to finish the method otherwise you discover a higher
alternative with a special U.S. employer earlier than you enter the U.S., an H-1B visa switch earlier than stamping could also be vital.
Making it by the lottery and getting an H-1B visa petition authorized isn’t any small activity, so it’s comprehensible to be cautious when making adjustments. That’s why deciding whether or not you need to switch your employment earlier than coming into the U.S. or ready till you might have arrived to vary is a matter to debate with an immigration lawyer.
Listed below are the information surrounding each eventualities:
H-1B Visa Switch Earlier than Stamping
If you’re nonetheless exterior the U.S. and have obtained approval on your petition however have but to get it stamped in your passport, there are some issues to think about related to getting an H-1B visa switch earlier than coming into the U.S.
The primary is that submitting for a switch is actually submitting a brand new H-1B petition, earlier than or after stamping. This petition, nevertheless, doesn’t require re-entry into the H-1B lottery. Despite the fact that your new employer is submitting a brand new petition, you might have already been counted in that yr’s visa cap. Because of this you don’t have to compete once more with hundreds of different candidates to safe your approval.
The first concern is that if the employer who initially submitted the authorized petition had been to be taught of a petition of switch being filed in your behalf, she or he would be capable of withdraw their authorized petition. This could require you to be re-entered once more by one other employer. There is no such thing as a automated re-entry.
Fortuitously, the quantity of knowledge that your preliminary employer receives is as much as you. The USCIS doesn’t inform anybody of the petitions it will get and so will shield your privateness. If you’re nervous about the potential for petition withdrawal, contemplate asking your immigration lawyer about premium processing.
H-1B Visa Switch After Stamping
Ready till you might have entered the U.S. is safer than getting an H-1B switch earlier than stamping since your employer’s petition can’t be withdrawn after the visa has been stamped. Then you may merely have the brand new employer file a second lottery-free petition in your behalf.
As a result of a spot in employment may imply weeks and even months of misplaced wages, you could have to work together with your preliminary employer whereas the switch petition is being processed. (A niche in employment means standing has not been maintained until the 60-day grace interval applies.)
As soon as your new employer has obtained an I-797 Discover of Motion Receipt type, you’re free to switch your employment.
Utilizing Premium Processing
Fortuitously, you need to use premium processing on your switch petition no matter whether or not you’re transferring your H-1B earlier than or after stamping. Premium processing is an optionally available service offered by the USCIS that shortens your I-129 petition’s processing time to simply 15 calendar days.
Nevertheless, since you are submitting a brand new petition, you’re nonetheless opening your self as much as being denied by the USCIS. Premium processing is not going to aid you enhance your possibilities of approval. In case your petition will not be adjudicated within the 15-day interval after premium processing has been requested, the USCIS will refund your premium processing price (not your petition’s submitting price) and course of your petition usually, which takes about six months relying on the caseload of the service heart. Throughout the 15-day window, the case could also be authorized or a RFE could also be issued.
Transferring from Cap-Exempt to Cap-Topic Jobs
One facet of the H-1B switch that folks usually attempt to exploit is the cap-exempt to cap-subject switch. The thought is that one may enter the U.S. by a cap-exempt employer to keep away from the lottery, then merely switch to the cap-subject employer of their selecting.
Concurrent employment permits work for a cap-exempt and cap-subject employer on the identical time. Nevertheless, if the person needs to solely work for the cap-exempt employer, s/he should undergo the lottery.
The cap window is 90 days. April 1- June 30. Should be obtained by June 30. Additionally, you will be prohibited from working on your cap-subject employer till the primary enterprise day in October. So, with a view to completely keep away from the cap, you have to switch solely to cap-exempt employers. As quickly as you file to switch to a cap-subject employer, you’ll be entered into the lottery.
How a VisaNation Regulation Group Lawyer Can Assist
VisaNation Regulation Group attorneys have an extended historical past of success serving to individuals by the maze of immigration legislation. They are going to analyze your distinctive scenario that will help you decide whether or not you need to file for an H-1B visa switch earlier than stamping or afterward.
For those who want authorized counseling on this situation, contact one in all our VisaNation Regulation Group immigration legal professionals to affix the numerous success tales we offer. Fill out the contact type to see if you happen to qualify for a free session.
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