Can I Work For Another Company When H-1B Extension/Transfer Is Pending?

Most employees are delighted when they receive a better offer, however, for foreign workers who hold H-1B visas may worry about their H-1B transfer petition first, especially when they have already had a pending petition. We will discuss below in detail what underlying risk the foreign workers need to be aware of when they decide to change their employers.

Scenario 1: I-94 is valid while an H-1B extension/transfer petition is pending

Things would be more positive and easier when the foreign worker’s I-94 is still valid. A new employer can file an H-1B transfer petition on behalf of the employee, no matter if he or she has a pending extension or transfer petition. Additionally, the employee may start to work for the new employer when USCIS receives the new transfer petition.

However, if unfortunately, the new H-1B transfer petition is denied, the employee may still be eligible for the 60-day grace period, as his or her previously approved petition is still valid. During the grace period, the new employer can file a new petition on behalf of the employee.

Scenario 2: I-94 expires while an H-1B extension/transfer petition is pending

The new employer can still file a H-1B transfer petition on behalf of the foreign worker after I-94 expiry, and the employee may start his or her work with the new employer. However, this petition will be a bridge petition, which means the approval of the transfer petition is based on the approval of the previously filed extension/transfer petition. In another word, the transfer petition filed by the new employer would be denied automatically if the previous extension/transfer petition gets denied.

In this scenario, the employee will not have the 60-day grace period if the previous petition is denied, so the employer cannot file another H-1B transfer or change the employee’s status to other visa category (i.e. B-2, F-1). Hence, he or she needs to leave the United States within reasonable time (in general, as soon as possible). Please note that the employee’s unlawful presence begins on the day of the previously filed extension/transfer petition denial.

***Tips for bridge petitions***

1. If the previously filed petition gets denied, and the foreign worker has to depart the United States immediately, he or she may still resort to consular processing. The U.S. employer may file a new H-1B petition through consular processing, and the employee will be able to work in the United States again when the petition is approved.

2. As discussed above, bridge petitions can be risky to both the employer and the foreign worker, therefore, it is always better to upgrade the previously filed petition to premium processing before filing the new H-1B transfer petition.

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