By Attorney Gotcher
Q: Do I need a new petition if my company is merged, acquired, or reorganized?
A: The American Competi-tiveness in the Twenty First Century (“AC21”) Act amended the law to permit companies to continue to employ H-1B professionals without the need for petition amendments in certain cases involving corporate mergers, acquisitions, or reorganizations. In such cases, the “new” employer must accept complete liability for all immigration matters involving the “old” employer. Also, if the employer invokes this provision to avoid having to file a new petition, the H-1B employee may continue to remain in the US and work, but not travel using the existing petition approval.
Q: What is “H-1B portability”?
A: The AC21 legislation created a new benefit for H-1B nonimmigrants. This benefit, known as “H-1B portability” permits a person who either presently holds H-1B status, or who in the past has been issued an H-1B visa or has held H-1B status, to begin working for a new H-1B employer before the new employer’s H-1B petition has been approved.
Q: How soon can I work after my new employer files an H petition for me?
A: If the beneficiary of the H-1B petition filed by the new employer has not worked without authorization and is in valid nonimmigrant status when the new petition is filed, he or she may begin working for the new employer immediately. This is true even if the employee does not currently hold H-1B status, provided he or she had previously held H-1B status or had been issued an H-1B visa.
Q: Can I travel while my new petition is pending?
A: If an employer files an H-1B petition for someone, who qualifies for H-1B portability, the employee may travel abroad while the new petition is pending. If the employee already has a valid H-1B visa (for the old employer), he or she may travel using a combination of the old visa and the receipt notice for the new petition. If the employee does not have a visa, then the employee will have to apply for a new H-1B visa to return to the US In this case, the employee must present the approval notice for the old petition, together with the receipt notice for the new petition.
Q: Do I have to get a new visa if I change employers?
A: Generally speaking, no. The State Department has said that an H visa issued for one employer remains valid for subsequent employers, provided the USCIS has granted permission for the worker to change employers. The only problem would be if the first employer notified the USCIS that it wanted the first H petition revoked. In that case, the visa would become void.
Q: Do my spouse and children have to get new visas when I change employers?
A: Not necessarily. If they have unexpired H-4 visas that were issued when you worked for the previous employer, they may continue to use them. For all practical purposes, an H-4 is an H-4.