Tips for Foreign Nationals Transferring H-1B Status

July 31, 2015
Beata Leja

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.

Non-Compete Clauses

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to determine whether a non-compete would apply upon termination and, if so, whether the H-1B would be immediately withdrawn after termination. If the H-1B is withdrawn immediately after termination, this would affect an individual’s ability to maintain his or her H-1B status during the non-compete period.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.

Termination Clauses

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.

The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

© 2023 Minsky, McCormick & Hallagan, P.C. All rights reserved. Information may not be reproduced, displayed, modified, or distributed without the express prior written permission of Minsky, McCormick & Hallagan, P.C.

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