Navigating Job Changes (Employer Transfers) for Foreign Workers
Attorneys:Attorney Jeff Zhengquan Xie,Attorney Jiarui Yin,Attorney Qian Zhao,Attorney Haochun Ling, Xiao Xiang
Job-hopping, or switching employers, is quite common in the United States. Generally speaking, however, foreign workers do face certain restrictions and risks when changing jobs or employers before obtaining permanent resident status (a green card). Unless absolutely necessary, it is advisable to avoid changing jobs. A poorly planned job switch could result in the loss of legal immigration status. If a job change is indeed unavoidable, it must be carried out on the premise of maintaining valid legal status.
Scenario 1: Job Changes During Optional Practical Training (OPT) for Recent Graduates
There is no limit to the number of job changes, as long as each position is directly related to the graduate’s field of study. A graduate may switch jobs multiple times as long as they can secure employment with a willing employer. That said, frequent job changes within the one-year OPT period may leave a negative record that could affect future employment prospects. Additionally, if there are uncertainties regarding H-1B visa quota availability, the desire to change jobs should be subordinated to the priority of securing an H-1B visa.
Scenario 2: Job Changes Shortly After H-1B Approval
First and foremost, it is critical to confirm whether your H-1B visa has already taken effect. If you change jobs before the H-1B visa becomes valid, you must check how much time remains on your OPT. If your OPT is close to expiration or has already expired, you should not (and legally cannot) switch employers. If you are certain that you do not wish to work for the company that sponsored your approved H-1B visa, you should request that your prospective new employer file a new H-1B petition on your behalf as soon as possible.
Second, you must verify that your prospective new employer is genuinely committed to hiring you and has either already filed an H-1B Transfer petition or is willing to do so promptly. Irreversible mistakes occasionally occur in this scenario: An H-1B visa holder is eager to join Company B and submits a resignation to their current employer (Company A) before Company B has officially filed the H-1B Transfer petition. The resignation takes effect, but Company B fails to submit the H-1B petition in a timely manner. This creates a gap in the foreign worker’s legal immigration status between the date of resignation from Company A and the date Company B files the new H-1B petition. In severe cases, the worker may become ineligible to change to any other legal immigration status. In extreme instances, some employers may rescind the job offer after the worker resigns, refusing to proceed with the H-1B Transfer. This leaves the worker unemployed and at risk of falling out of legal status, potentially becoming part of the undocumented immigrant population. While such cases are rare, they are important to guard against.
Scenario 3: Job Changes from H-1B Status at Cap-Exempt Institutions to Cap-Subject Employers
This scenario is fairly common, such as when a postdoctoral researcher finds a position at a private company. If the postdoc’s current H-1B visa is their first H-1B and was sponsored by a cap-exempt institution (e.g., a university or research organization), they must wait until the cap-subject employer’s H-1B petition is approved and the visa becomes valid before resigning from their current position and starting work at the new company. Given the limitations of H-1B visa quotas, special attention must be paid to ensuring a seamless transition between the two H-1B statuses.
Scenario 4: Job Changes After Filing Form I-140 (Immigrant Petition for Alien Workers) and Form I-485 (Adjustment of Status)
This scenario is highly complex, and we strongly recommend consulting your immigration attorney before making a final decision to change jobs. Below is a general overview of some common situations.
First, the key question is: When is it permissible to change employers or jobs? U.S. immigration law stipulates, in principle, that a foreign worker may leave the employer who sponsored their I-140 petition after the I-485 application has been pending for 180 days or more. As long as the new job is “the same or similar” to the position stated in the original I-140 petition, the original I-140 petition will not be invalidated by the job change. However, there are critical caveats to this rule:
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If the I-485 application has been pending for over 180 days but the I-140 petition remains unapproved, USCIS will adjudicate the I-140 petition based on two criteria:
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(1) Would the I-140 petition have been approved if USCIS had adjudicated it within the first 180 days of the I-485 pending period? If the answer is yes, USCIS will approve the I-140 petition.
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(2) If USCIS issues a Request for Evidence (RFE) for the I-140 petition and the original sponsoring employer fails to provide a sufficient response or ignores the RFE entirely, USCIS will deny the pending I-140 petition and will also deny the associated I-485 adjustment of status application.
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If the I-140 petition has been approved but the I-485 application is still pending at the time of the job change, two factors must be considered:
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First, the foreign worker must maintain valid employment. If the worker is unemployed or actively seeking work at the time of adjudication, the I-485 application will be denied.
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Second, USCIS will review whether the new job is “the same or similar” to the position in the approved I-140 petition. This determination primarily hinges on whether the job title and job duties are consistent. While a difference in salary generally does not lead to an I-485 denial, a significant discrepancy between the salary of the new job and the salary stated in the approved I-140 petition may be used as evidence that the two positions are not “the same or similar.”
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Additionally, if the approved I-140 petition was based on a certified Labor Certification (PERM), the foreign worker must have the new employer file a new PERM application and a new I-140 petition after changing jobs. However, the worker is eligible to retain their original priority date from the initial approved I-140 petition.
The above overview is prepared by XIE LAW OFFICES,LLC. to provide legal information to the Chinese community. It is primarily for academic discussion purposes and does not constitute legal advice on specific cases. If you already have legal representation, please consult your own attorney, who is familiar with the details of your case. Clients of Xie & Associates Law Firm, as well as readers who have not yet retained legal counsel, may contact Attorney Xie for specific legal questions. If you wish to reprint this document, please do so in full without any deletions, and clearly indicate the source.
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