As the H-1B visa season is upon us, employers are eager to know at what point in the process a potential H-1B worker is eligible to begin working.
There are three main situations that arise for potential H-1B workers:
An H-1B petition is pending for a prospective worker living outside the United States;
An H-1B petition is pending for a change of employer (i.e. moving from one company to the next, but remaining in H-1B status); or
An H-1B petition is pending with a prospective worker shifting from a student visa to an H-1B visa
Part 1: Prospective Worker Residing Outside the United States
Those prospective workers who reside outside the United States while their visa petition is pending must wait until the petition is approved before they may begin working. Once the petition is approved, the approval notice will be issued by USCIS and the worker’s term of work authorization is detailed on the approval notice. The worker residing outside the United States cannot begin working before the start date listed on this notice, and must also apply with the U.S. Department of State (DOS) at a U.S. embassy or consulate abroad for the H-1B visa. Then, the H-1B worker must apply to U.S. Customs and Border Protection (CBP) for admission to the United States in H-1B classification. See “Application Process.”
When can they start work?
A prospective worker living outside the United States cannot begin working until both USCIS has approved the H-1B petition AND his/her visa is approved by USCIS.
Part 2: H-1B/Change of Employer
The law used to be that for a worker to change H-1B employers, the prospective employer would have to petition the government for a “change of employer” and the worker could not begin working until the new petition was approved. This delay between jobs and the uncertainty in how long the petition would take to be approved complicated and delayed the process of changing employers for H-1B visa holders.
The American Competitiveness in the 21st Century Act (AC21), which became effective October 17, 2000, remedied this issue for workers who wanted to seamlessly change their employers under their H-1B visa. Because of the new law, “H-1B portability” is now available, which means that H-1B workers are able to start working for their new employer as soon as the employer files the petition with USCIS, without waiting for the petition to be approved.
For the worker to be eligible for H-1B portability, AC21 requires that:
1. The H-1B worker must have entered the U.S. lawfully; 2. The new employer must have filed a “non-frivolous” H-1B petition while the prospective employee’s current H-1B status is valid; and 3. The H-1B worker cannot have worked without authorization since the most recent, lawful entry.
When can the employee start work?
H-1B employee who wishes to change employers can start working with the new employer in H-1B status as soon as the petition for changing employers is filed with USCIS.
CAUTION: This is generally NOT advised. If the employee moves to the new company, and new company's H-1B is eventually denied, then employee will be out of status. This move is reserved for dire cases where employers need employee at any risk.
Part 3: F-1 to H-1B
Many foreign national students in F-1 status seek or are offered employment with United States companies upon graduation, but assessing when they can begin employment under an H-1B visa depends on many factors, such as what the student’s graduation date is, if the student is working in Curricular Practical Training (CPT), Optional Practical Training (OPT), or when the student’s H-1B visa work eligibility begins.
There have historically been disjunctions between the time that a student’s Optional Practical Training or F-1 status ended and when the approved H-1B petition began, which places the student out of status for a few months until their H-1B status begins. More specifically, cap-gap occurs because an employer may not file, and USCIS may not accept, an H-1B petition submitted more than six months in advance of the date of actual need for the beneficiary’s services or training. As a result, the earliest date that an employer can file an H-1B cap-subject petition is April 1, for the following fiscal year, starting October 1.
When can the employee start work?
If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is October 1.
To remedy this problem, current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status and work-authorized during the cap-gap period.
Students are eligible if both:
1. The employer files an H-1B petition for the student, on or after April 1, and requests a change of status to H-1B to begin on October 1 and
2. The student is still within their OPT authorization period, or is within the 60-day grace period following the OPT expiration, when the employer submits the H-1B petition on their behalf.
However, if the student is within the 60-day grace period following OPT expiration when the H-1B petition is filed for them, the student will receive a cap-gap extension to maintain valid nonimmigrant status, but not work authorization because they were not authorized to work when the petition was filed. The student will not be “out of status,” but will also not be eligible to work until the H-1B validity period begins.
The cap-gap extension is automatic, in that it requires no special forms to fill out (except for updating the Form I-9 for the employee), and allows for the student to remain in valid F-1 status until October 1st when they change to H-1B status.
For more information on the H-1B visa process, please check out training dates here!
Danielle Atchison, Business Immigration Attorney MDIVANI CORPORATE IMMIGRATION LAW FIRM 7007 College Blvd., # 460, Overland Park, KS 66211 USA Phone :: 913.317.6200 Email :: DAtchison@uslegalimmigration.com