Even though U.S. employers still recruit and hire professionals from overseas corporations and schools, they are increasingly recruiting from a growing labor pool of foreign professionals already working in the U.S.  Whenever a foreign employee seeks a change in U.S. employers, the change in employment usually requires the filing of a petition with the INS or an application at a U.S. consulate/embassy.  With respect to H-1B professionals currently working the U.S., new rules (H-1B Portability) now allow employers to hire (put on payroll) employees physically present in the U.S. in unexpired H-1B status with another employer.

The most common scenario is when employer X, a U.S. Employer, wishes seeks to hire a foreign professional currently employed with employer Y, an unrelated U.S. entity.  In some instances, the U.S. employer seeks to transfer a foreign professional from one U.S. subsidiary to another or wishes to change the payroll source of the foreign employee.  In other instances, the U.S. employer is being merged with or purchased by another entity (for a specific discussion on this topic see Dealing With Mergers).  Thus, employers and foreign professionals often inquire about the immigration ramifications of and procedures for changing U.S. employer sponsorship of temporary work (nonimmigrant) visas.

Ramifications for Nonimmigrant (Temporary) Visas

Most nonimmigrant or temporary classifications (e.g. E, H-1B, L-1, TN) are "employer-specific", meaning that such a classification only authorizes the foreign worker's employment with the petitioning U.S. employer.  For example, a foreign professional with an H-1B sponsored by X corporation cannot work for Y corporation unless Y files a new or amended H-1B petition with the INS.  Under the new H-1B Portability rule, the H-1B employee (H-1B sponsored by X corporation) may go to work for Y corporation upon the filing of Y corporation’s H-1B petition with the INS.  The new rule permits the change of employment while the petition is still pending (before actual INS approval).

When a foreign professional or executive is changing employers, the "employer-specific" doctrine applies and the new employer will need to file an amended nonimmigrant visa petition with the INS.  In the cases of H-1B and TN employees, the new entity must file an amended petition with the INS.  Since the employees still qualify for such classifications by virtue of their bachelor's degrees (or equivalents) or nationality (Canadian or Mexican), the amended petitions should be approvable, assuming all other requirements (e.g. prevailing wage or pure nonimmigrant TN intent) are met.

In some instances, such as a transfer to affiliated corporation, a new or amended petition is not required even if the payroll source is going to change.  This is especially true when a company has filed a "blanket" L petition for its corporate group of branch offices or subsidiaries and the company is seeking to transfer the L-1 alien from one subsidiary to the other.  Another instance where a new petition may not be required is when an employer is merely changing its name.

Ramifications for Permanent Visas

Lawful Permanent U.S. Residents (LPR's) have self-authorizing employment status and may change employers without the filing of an amended petition.  In short, a merger, stock acquisition, asset acquisition, asset acquisition, spin-off or some other transaction does not have any affect on LPR employees.

However, foreign personnel who have pending employment-based applications for LPR status are significantly affected by material changes in employment.  At a minimum, such changes in employment will usually require the filing of a new immigrant visa petition by the new employer.  In most instances, the new employer will be required to undergo the permanent labor certification process with the U.S. Department of Labor before the new immigrant visa petition can filed with the INS.  In some cases, where the new employer can establish that it is a "successor in interest" of the previous sponsor employer, the approved labor certification can be transferred to the new employer, assuming the permanent offer of employment is for the same occupation and in the same location (metropolitan statistical area or "MSA") as the prior employment.

Effective December 2000, foreign nationals with pending I-485 adjustment of status applications may change the employer sponsor of their employment-based immigrant visa without having to file a new application for permanent labor certification or I-140 immigrant visa petition if:  1) the I-485 application has been pending for more than 180 days; and 2) if the foreign national’s job offer (occupation) with the succeeding sponsor is substantially the same as the original sponsor’s job offer. 

For example, if employer X had obtained an approved labor certification and I-140 petition for a permanent programmer/analyst position for the foreign national, employer Y can take over as the sponsor of the immigrant visa (without filing with the INS) if the employer Y is also offering the foreign national a permanent position as a programmer/analyst and the foreign national’s I-485 application was filed with the INS more than 180 days before the transfer of sponsorship.  This new liberating (yet confusing) rule is referred to as “I-140 Portability”.  For a full explanation of this new rule please contact your immigration counsel or request a consultation with the author.

Change of Status vs. Extension of Status

A "status" is an authorized period of stay in the U.S. as granted by the Immigration & Naturalization Service (INS).  It is not to be confused with a "visa" which is a document for entering the U.S. as issued by the U.S. State Department.

The terms "change of status" or "extension of status" apply only to nonimmigrant (temporary) status categories (i.e. H-1B, L-1, TN).  Permanent status, properly referred to as "Lawful Permanent Resident" status, has an indefinite duration contingent upon the alien's conduct.  Lawful Permanent Resident status can neither be "extended" or "changed", although a qualifying alien may elect to apply for naturalization to become a U.S. citizen.

An alien or the alien's current /potential employer is said to be seeking a "change of status" when a petition is filed with the INS to reclassify the alien's temporary status.  An employer petitioning the INS to change an alien's F-1 student status to an H-1B professional status so the alien can be authorized for employment would be an example of a "change of status".  An alien in an unexpired B-2 tourist status filing a self-petition to be reclassified as an L-2 dependent spouse of an L-1A multinational manager or executive would be another example of a "change of status."

An "extension of status" is being sought whenever the alien or the alien's current employer is seeking to extend the authorized period of stay in the same status classification.  An employer petitioning the INS to extend an alien employee's soon-to be expiring H-1B status for another period of authorized stay is seeking an "extension of status."

Although there are many exceptions, a qualifying alien currently in the U.S. in a valid and unexpired nonimmigrant status may generally obtain a change of status or an extension of status.

In corporate immigration practice, an alien's eligibility for a change of status or extension of status is an important consideration.  Aliens who are eligible for a change of status or extension of status receive the new status classification or the extension of status inside the U.S. Thus, an alien employee may be authorized to begin/continue employment without a break in time.  Aliens who are not eligible for a change of status or extension of status suffer the inconvenience of traveling to the U.S. Consulate in their home countries, thus resulting in either a break in the alien's employment or a delay in placing the alien on the employer's payroll as a new hire.

Aliens who are eligible for a change of status or extension of status receive INS-issued nonimmigrant status inside the U.S. in the form of a new I-94 arrival/departure card.  The new I-94 card documents the alien's new status classification and/or new authorized period of stay.  Thus, when the INS grants the alien a change of status or extension of status, he or she does not have to make the trip to a U.S. Consulate or Embassy to apply for the status.  In fact, he or she already has the status which authorizes his or her stay (and in many instances, employment) in the U.S.