July 31, 2015
Minsky, McCormick & Hallagan
To follow up on last week’s blog Tips for Employers Hiring Individuals with H-1B Status, we will provide some insight into what those in H-1B status should consider when changing to a new employer. In addition to what was covered in last week’s blog, those currently in H-1B status who are thinking of changing employers should also consider several other issues, such as: timing of the green card process, non-compete clauses, and termination clauses.
Green Card Process
An important discussion for an employee to have with an employer when transferring an H-1B is regarding when the employer will initiate the legal permanent resident process (“green card process”) after hiring the employee. H-1B status is limited to six years. However, if the FORM ETA-9089 Application for Permanent Employment Certification, also known as the “PERM”, is filed at least one year prior to the six-year max out date, then the H-1B can be extended beyond six years. For those who are approaching the six-year max, this is an important discussion to have with a potential employer as it will directly impact the employee’s ability to remain in the U.S. long term. When reaching an agreement with a potential employer, keep in mind that it usually takes between 6-12 months for an employer to complete the steps required to file the PERM and to receive a decision.
When signing an employment agreement, it is important to determine whether a non-compete would apply upon termination and, if so, whether the H-1B would be immediately withdrawn after termination. If the H-1B is withdrawn immediately after termination, this would affect an individual’s ability to maintain his or her H-1B status during the non-compete period. An H-1B employee would then have to either leave the U.S. upon termination or change to another nonimmigrant status during the non-compete period.
Employment agreements often outline the terms of termination. The agreement may require that the employee and the company give a certain amount of notice before termination. The employee should consider that he or she will need time to not only find a new employer upon termination but also that the new employer has enough time to file the H-1B transfer prior to the employee’s termination.
Additionally, an H-1B employee should consider that if involuntarily terminated, the employer must cover the H-1B employee’s transportation cost back to his or her home country if the employee is unable to find a new H-1B employer after termination by the company.
If you have any questions regarding H-1B transfers, please contact our office. We would be happy to assist by answering any questions you may have throughout the process.