The 2005 annual American Immigration Lawyers Association (AILA) conference has now come and gone and I must say that this was one of the best conferences I have attended in several years. We had much to discuss at the conference: PERM, REAL ID, H-1B shortfalls, just to name a few of the more significant topics.
Of course, one of the topics my clients are most interested in is anything pertaining to H-1B status since so many Filipino’s are either here in H-1B status or have friends or relatives who want to come to the United States as H-1B professionals. One of the things which may have been discussed in earlier articles but which bears repeating here is USCIS’s current stance on maintaining H-1B status and the ability of an H-1B alien to change employer’s even if he or she is out of status.
Many people here in H-1B status will either quit there jobs or otherwise have their employment terminated, then come to me asking 1) if this creates a problem with their status, and 2) whether they can “fix” this problem if they find a new employer. The answer to the first questions is “yes”; H-1B status is maintained by working for your petitioning employer and once that employment relationship ends, you are no longer maintaining H-1B status. Thankfully, the answer to the second question is also “yes” – at least under some circumstances; if you are no longer working for your petitioning employer, but your I-94 from that employer has not yet expired, you may be eligible to change employers, and continue to work in H-1B status, without leaving the United States.
I have been advising my clients that this is possible for quite some time. However, USCIS has only recently agreed with my analysis and has now confirmed that this is, in fact, possible. It doesn’t matter how long you’ve been out of work because there is no time limitation. Even H-1B aliens who have been unemployed for a year or more can take advantage of this provision provided their I-94 is still valid. In fact, even if you I-94 is no longer valid, you may still be able to work legally in the U.S.
As with any other immigration issue, each case requires in-depth analysis by a qualified and experiences immigration lawyer. Each case is different, so you cannot assume that the outcome of your case will be favorable just because your friend or relative with “the same case” had a favorable outcome. I have been practicing immigration law for over 10 years now and I have never seen two cases that are exactly alike. If you, or someone you know, thinks they might qualify for this, or any other immigration benefit, you should make an appointment to discuss your case with a qualified immigration professional.
