Can You Change Employers with a Pending H-1B Petition in India?

Yes, you can change employers while your H-1B petition is pending or even before it gets stamped, provided you follow the specific steps and considerations. This guide walks you through the process, including the necessary steps and advice from immigration experts.

What to Know About Changing Employers

If you are in India with an H-1B petition and are considering changing to a new employer, there are a few key points to keep in mind. First, the new employer must file a new H-1B petition on your behalf, which is known as an H-1B transfer. Even if your original petition is still pending, this new petition can be filed for a change of employer. However, certain conditions apply.

New Employer Filing

The new employer must file a new H-1B petition on your behalf. This petition goes through the same process as your original petition: it must be filed with the U.S. Department of Labor (DOL) and the U.S. Citizenship and Immigration Services (USCIS). The new petition requires the submission of relevant documents and information, such as a job offer letter, proof of qualifications, and other required forms.

Cap-Exempt Status

If your H-1B petition was filed under the cap, meaning it was subject to the annual limit on H-1B visas, your new employer must also be subject to the cap. However, if the original petition was approved and you have already been counted against the cap, the new employer does not need to be cap-exempt. It’s important to confirm this status, as it can significantly impact your process.

Timing and Withdrawal

If the new employer files the petition while the old one is still pending, you can generally withdraw the original petition. However, ensure that the new petition is filed and processed before you withdraw the old one. This ensures a smooth transition and avoids any complications.

Stamping and Entry

To enter the United States on a new employer’s H-1B visa, you need to get the new petition approved and stamped at a U.S. consulate or embassy. You can only do this after the new petition is approved, even if your current petition is still pending. Therefore, it is crucial to coordinate with your new employer and ensure that the new petition is processed promptly.

Documentation and Legal Advice

Collect all necessary documentation for the new employer’s petition, such as job offer letters, proof of qualifications, and other required forms. It is also advisable to consult with an immigration attorney, as they can provide guidance on the entire process, help ensure compliance with all regulations, and handle the filing process on your behalf.

Other Considerations

It's important to note that just as your original employer needed to go through the DOL and USCIS approval process, the new employer must also be approved by both agencies. This includes going through the H-1B lottery, if applicable.

Change of Employer Without Visa Stamp

While a visa stamp is typically required for entry into the U.S., you can change employers even without holding the stamp. If you do not have the visa stamp, you still have legal non-immigrant status on H-1B as long as you have a valid H-1B visa. When you change employers, your new employer must file an H-1B petition. They need to attach documentation proving your valid non-immigrant status, such as a copy of the H-1B approval notice from your current employer.

Even if you do not have the visa stamp, you can still change your employer legally. You need a valid H-1B visa, and once the new employer files the petition, it must be approved and stamped. Only after that can you obtain the visa stamp for reentry into the U.S. This process ensures that you maintain your legal status throughout the transition.

Final Thoughts

Changing employers with a pending H-1B petition requires careful planning, coordination, and adherence to the regulations set by the U.S. government. By following the steps outlined above and seeking legal advice, you can ensure a smooth transition to a new employer without disrupting your H-1B status.