YOU MUST COMPLY WITH YOUR H-1B VISA IN ORDER TO EXTEND STATUS OR CHANGE EMPLOYERS
by Michael J. Gurfinkel

Dear Atty. Gurfinkel;
I have an H-1B visa, valid for 3 years. Although I worked for the employer who petitioned me for a short while, I left for another job.

I have now found another employer who is willing to again petition me for an H-1B visa. Will I encounter any problems in changing employers or extending my H-1B visa if I’m no longer working for the original employer?

Very truly yours,
KJ

Dear KJ:
If you are not working for the employer who originally filed your H-1B petition, or were not being paid the wage called for in that petition, you will definitely encounter problems in either extending your H-1B visa or changing employers.

An H-1B visa is a temporary working visa for college graduates, who will be working in a college level job (“specialty occupation”). In addition, the H-1B visa holder can only work for the employer who petitioned them. Working for wages lower than the wage specified in the petition, or for another employer, could constitute a violation of status. Even if the H-1B visa is valid for up to 3 years, if you are not working for the petitioning employer, it is considered a violation of status, even if there is still time left on your H-1B visa. (It is like having a student visa, but no longer going to school. Although you have a visa, you are violating your visa status).

If a person has violated his or her H-1B visa, and then files for either an extension of H-1B status or for change of employer, the USCIS may ask for evidence (or proof) that the person had been in compliance with their initial H-1B visa. In fact, the USCIS put out a press release noting that the law “requires that an applicant for extension of status have maintained his or her nonimmigrant status. In situations where an H-1B worker is changing to an employer other than the one for which the initial H-1B was approved, USCIS will require that the worker changing employers demonstrate that he or she actually did perform meaningful work for the original petitioning employer under circumstances not reflective of fraudulent intent in the original petition.”

In other words, in seeking an extension of status or change of employer, the USCIS may ask for documents, such as your pay stubs, tax returns, etc. to make sure that you were actually working for the original petitioning employer at the wages specified in the petition. If you are no longer working for that employer, or being paid less than the wage, USCIS may consider that to be a violation of status, and thus you may be considered “out of status”. It doesn’t matter if you now have a new employer willing to petition you, or that you now intend to comply with your H-1B obligations.

When seeking immigration benefits, you must make sure that you are in full compliance with all the applicable rules, regulations, and requirements. If you are not playing by the rules (i.e. not working for the petitioning employer, working in a non-specialty occupation, and/or being paid less than the prevailing wage), then your case could be denied, which would only be the start of your immigration problems.

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