More H-1B visa holders are switching jobs – the process explained

More H-1B visa holders are switching jobs – the process explained

MUMBAI: H‑1B workers are leaving their initial H‑1B employers more than ever, states a recent study by David J Bier, director, immigration studies at Cato Institute.
From fiscal year 2005 to 2023, H‑1B workers changed jobs over 1 million times (1,090,890). The number of switches grew from about 24,000 in 2005 to a record 130,576 in 2022—a more than fivefold increase.In fiscal year 2023, H‑1B workers changed jobs 117,153 times, a slight decline from 2022.
Bier points out that on another front, H‑1B job shifting is more common than H‑1B workers starting H‑1B employment for the first time. In 2023, about 61% of all H‑1B workers starting with a new employer were existing H‑1B workers hired away from other employers in the US. This means that American employers are more likely to hire an H‑1B worker already in the country in H‑1B status.
He explains that there are many reasons for this trend. The labor market has generally been tighter, leading to more job switching in general. In addition, more H‑1B workers are employed in the US now for other employers to poach, and because the H‑1B cap has been so quickly met every year since 2014, there is more reason to poach. The government also made it somewhat easier to switch H‑1B jobs in 2017 by giving them a sixty‐day grace period to find a new job after losing a job.
Finally, the jump in switching in 2021 is at least partially attributable to the record number of green card applications filed that year. After 180 days, H‑1B workers who have filed a green card application may change jobs without the employer being forced to restart the green card process, easing the job‐switching process. However, in 2022, the number of pending employment‐based green card applications declined from 2021, so this is only part of the story.
The challenges:
In his analysis, Bier points out that “Of course, it is true that H‑1B workers are still not treated equally in the labor market. New H‑1B employers have to pay hefty fees to poach them, and the shortage of green cards for Indian workers can wrongly make those workers feel that they have to stick with their existing employer to complete that process. The best solution would be to make the conversion to a green card automatic rather than requiring a renewal after three years.” He adds “The sixty‐day grace period to find a new job is still not long enough to give many workers the confidence to simply quit a problematic job without a new one already lined up.”
TOI spoke with New York based immigration attorney Cyrus D. Mehta, on the process relating to a job transfer for H-1B visa holders.
What is the process for a job-transfer for an H-1B holder?
The new employer needs to prepare and submit the Labor Condition Application (LCA) to the DOL, which takes about 7 days to get certified. Once the LCA is certified, the new employer can file the H-1B petition requesting H-1B classification for the new position and a request for extension of status. Once the H-1B petition is properly filed, the H-1B worker can “port” to the new employer even before the H-1B petition requesting extension of status is approved, although most employers wait for the new H-1B petition to get approved before onboarding the H-1B worker.
What are the fees (revised as of April 1) payable by the new employer?
For employers with 26 or more full time employees, the fee for Form I-129 is $780. It used to be $460 prior to April 1. The employer also has to pay a fraud fee of $500 and the training fee of $1500. The employer from April 1 also has to pay an asylum processing fee of $600. The premium processing fee is $2805.
If the employer has 50 or more employees and if more than 50% of employees are in H-1B or L status, then the employer must pay an additional $4000 fees.
For employers with 25 or fewer, the I-129 fee remains $460. The employer also has to pay a fraud fee of $500 and the training fee of $750. The employer must also pay an asylum processing fee of $300. The premium processing fee is $2805.
There is a different fee structure for H-1B nonprofit cap exempt employers.
Mehta also detailed various caution points and handy tips:

  1. The employer must make sure that it is submitting correct fees, otherwise the H-1B extension request will get rejected. If the H-1B worker has already ‘ported’ and the extension gets rejected, the H-1B worker cannot continue working as they would have fallen out of status.
  2. The H-1B has a maximum duration of six years. Therefore, the new employer should make sure that when bringing on a new H-1B worker, there is enough time left out of the maximum of six years. If a labor certification application has been filed one year before the sixth year, the employer can obtain an additional one year beyond the sixth year. If the I-140 petition is approved, and the H-1B worker is born to a backlogged country like India, the employer can request 3 year extensions of the H-1B petition until the employee’s priority date becomes current.
  3. While labor certification and I-140 petitions filed by the previous employer can enable H-1B extensions beyond the sixth year with the new employer, the new employer would have to start a new green card process such as filing a new labor certification all over again but can recapture the priority date from the old I-140 petition.
  4. If the H-1B worker has also filed an I-485 application for adjustment of status, which has been pending for more than 180 days, then the worker can port to a new employer and still keep intact the green card process filed by the previous employer.

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