Why it is getting tougher for H-1B visa holders to switch jobs

It is becoming difficult for H-1B visa holders to switch jobs. The USCIS has been denying the application by the new employer for various reasons, even if the new job requires the same set of skills.

It is getting tougher for H-1B visa holders in the US to switch jobs even if the new job is similar to the old and requires the same exact skill sets.

It is becoming difficult for H-1B visa holders to change their jobs. The United States Citizenship and Immigration Services (USCIS) has been denying the application by the new employer for various reasons, even if the new job requires the same set of skills. The most common reason for the denial is that the new job does not constitute a specialty occupation.

The most challenging thing here is that any individual who is looking out for job could find himself or herself out of status, with a three to ten years bar on the entry in the United States (US).

An Indian citizen, Usha Sagarwala had been living on an H-1B visa in the US since 2012. The USCIS denied her new employer’s petition for transfer when she sought to change job in 2018, as the new position did not constitute a specialty occupation, according to a ToI report.

The US Federal Court has declined to intervene in the matter as she pursued a lawsuit over her H-1B denial for the new job. According to the court, Sagarwala failed to establish the kind of economic harm that proves the court’s intervention.

The Federal court in its April 16 order observed that Sagarwala has only submitted evidence which is a short declaration that mostly focuses on the consequences that she will face if forced to go back to India.

The ability to change job is important for all those Indians who wait for a long period of time for a green card. New York-based immigration attorney and founder of a law firm, Cyrus D Mehta explained the process to the national publication. The new employer must file an H-1B petition all over again for the foreign worker and seek an extension of H-1B status as well.

“The law allows the H-1B visa holder to port to the new employer after the filing, but it is best to wait for the approval before jumping ship,” he further said.

“If the H-1B visa holder already starts working for the new employer and the transfer gets denied, then this could lead to an out-of-status scenario unless the old employer is willing to take back the worker under the previous H-1B approval, which may seldom happen,” he also added.

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