Effective October 17, 2000, The American Competitiveness in the Twenty-First Century Act (AC21) provides that a foreign employee who was previously issued an H-1B visa, or provided H-1B non-immigrant status, may begin working for a new H-1B employer as soon as that new employer files and obtains a receipt notice from the new employer.  The new employer must file a new H-1B petition application, even though this process is often referred to as "an H-1B Transfer."  To qualify, the employee must demonstrates that:

(1) He or she was lawfully admitted into the United States;

(2) The application is not frivolous.  A "non-frivolous" application is one that has some basis in law or fact;

(3) The new H-1B petition was filed before the end of their period of authorized stay (i.e. the employee has not over-stayed his or her status) and that the employee engaged in some meaningful work with the previous employer; and 

(4) The employee has not been employed without authorization since his lawful admission to the United States.

An H1B employee, whose employer has filed a new H1B petition to extend the stay, can work for up to 240 days based upon the pending H1B petition. Be sure to contact one of our Houston immigration attorneys and Houston immigration lawyers to see whether you can change employer and how to prepare the application so that USCIS will not determine that you have fallen out of status or overstayed your visa.

H-1B Extension Beyond Six Years Visa Limitation

An employer may extend an H-1B visa for the foreign employee beyond the 6 years limitation under these conditions:

• An Adjustment of Status Application was started at least 365 days prior. If so, AC21 allows for unlimited one-year extensions, as long as the green card application is in process. Alternatively, the employer must have an I-140 Immigrant Petition for the foreign employee approved and awaiting current priority date. Under this rule, AC21 allows for three-year extensions.); 

• The employer files an H-1B extension for the employee to obtains recapture time spent abroad during the six years in H1B status;

• The employee departs from the U.S., remains 1 year abroad, and then reenters the U.S. on another H1B visa;

• There’s a pending I-485 adjustment of status application and the employee is working based on employment authorization from USCIS;

• Finally, the employee may change status to another nonimmigrant status enabling him/her to work, such as an E-2 visa or O-1 visa, or attend school as an F-1 or M-1.

H-1B Visa Services By Our Houston Immigration Attorneys

Filing an H-1B application can be time consuming and complicated. The experienced Houston immigration attorneys at PHAM & CLOVES, PLLC would be able to assist the employer in filing H-1B visas. As part of our services, each application will be accompanied by a detailed cover letter drafted by one of PHAM & CLOVES, PLLC’s experienced Houston H-1B attorneys. The letter will demonstrate that the employer met all qualifications and the employees are qualified beneficiaries. As part of the letter, the attorney will show that: 

1. There is a job offer from the qualifying employer and that the employee accepted such position.
2. A copy of a valid LCA (obtained within 180 days from the date of filing the H-1B);
3. The proposed salary meets the minimal prevailing wage by the state’s department of labor; and in Texas, it is the Texas Workforce Commission; 
4. The H-1B worker will not adversely affect the working conditions of workers similarly employed in the intended area of employment. 
5. Employers have met all requirements in job posting and listing, posting in conspicuous at the employer’s work site on or within 30 days before the date the labor condition application is filed and/or that the employer had provided notice to the labor union (if necessary) regarding the position;
6. The employer shall maintain for public examination: 
    a. A copy of the LCA filed, 
    b. Evidence of salary paid to the H-1B employee, 
    c. An explanation of how the actual wage was determined, and 
    d. Documentation of the basis used for the prevailing wage; 
7. Finally, the employer must attest that he/she agrees to pay the foreign national the reasonable cost of transportation to return to the home country if the employment is terminated prior to the end of the authorized employment period. 

Can An H-1B Holder Obtain a Green Card And Become A Permanent Resident? 

Employers may file immigrant petition for their foreign employees, including H-1B visa holder, by preparing and filing form I-140, Immigrant Petition Application and Green Card Applications for Foreign Workers. Under certain categories, such as internationally recognized business persons and researchers, as well as multi-national executives, may be sponsored and an immigration visa is immediately available for such employee. Others, as in most cases for H-1B visa employees, employers must file PERM Labor Certificate Applications, not to be confused with LCA stated above. The PERM application may take anywhere from 90 days to 6 months or more and can be very complicated. Because of this reason, we advise our clients to start the process as soon as possible, especially if the H-1B employee is in his or her 4th or 5th year under H-1B. We encourage employers to contact our Houston immigration lawyers and our Houston H-1B visa lawyers to find out more on how they can file immigrant petitions for foreign employees.  Contact our Houston Immigration Attorneys at 713-492-0337.