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Changing Employers

In this Section

Coming to Clarkson
If an individual is already in the U.S. in H-1B status but is sponsored by another employer and wants to start employment at Clarkson, the hiring department must submit an H-1B Petition request to the Human Resources (HR) Department.  The prospective employee can begin employment at Clarkson once the H-1B Petition has been properly filed with US Citizenship and Immigration Services (USCIS) as evidenced by the H-1B Receipt Notice from the USCIS.  If the H-1B Petition is later denied, he or she will have to stop working immediately.

If a foreign national is currently in a visa status other than the H-1B, he or she cannot begin employment with an H-1B employer until USCIS approves the H-1B status.

Portability Provision
H-1B regulations (known as "AC21") allow individuals already holding H-1B status to begin employment with a new employer once the new petition is filed with the US Citizenship and Immigration Services (USCIS).  The foreign national can be employed under portability until a decision is made on the new H-1B petition for up to 240 days.  Assuming the new H-1B petition is approved, the employment can continue under the approved petition.  If the petition is denied, the employment must end.

It is also important to remember that filing a new petition with USCIS can take 90 days or longer due to new DOL/USCIS processing times.

The H-1B employee can travel in and out of the U.S. before the H-1B transfer petition has been approved.  However in order to reenter the U.S., the H-1B nonimmigrant should have a copy of the Form I-797 Filing Receipt indicating that a petition was filed by the new employer and should also carry a letter from Clarkson stating that the H-1B holder is currently working for Clarkson. 

Leaving Clarkson
When an employee with an H-1B status leaves Clarkson before the termination date on their H-1B approval notice, the Human Resources (HR) Department is required to notify the US Citizenship and Immigration Services (USCIS) of this material change.  Accordingly, an employee should inform the HR department if they complete their appointment prior to the expiration of their current H-1B status.

The H-1B is "employer specific" which means that each time an employee changes employers, the new employer has to prepare an entirely new H-1B Petition. Because any new H-1B Petition starts with obtaining a new Department of Labor (DOL) prevailing wage, employees should plan any change of employment well in advance, or else prepare to leave the U.S. and return later with the new H-1B status.

The department must notify the HR Department prior to the end of the H-1B employment if an employee resigns or his/her employment is terminated for any reason prior to the end of his/her approved H-1B employment dates.  USCIS will be notified of the termination of the H-1B employment.  The foreign national employee on H-1B status should make sure that their department is informed of their intending departure and their future contact information.

If the department terminates the foreign national employee’s H-1B employment prior to the end of the H-1B petition validity period, the sponsoring department is obligated to pay reasonable cost of transportation to the H-1B employee’s last place of residence abroad.  This requirement does not apply to dependents of the H-1B employee.  If the H-1B visa holder terminates the employment, the sponsoring department does not have to pay for the return transportation. 

In addition, the employer must advise the USCIS of any change in employment conditions, including promotion or termination.

Please note that an employee on H-1B status could have serious adverse consequences if he/she overstays the authorized period of stay in the U.S. or where the H-1B employment is terminated.  We suggest that in such circumstances the employee seek independent legal advice to determine what options, if any, may be available for continued authorization to remain in the U.S.