Q: Does H1b Extension of Stay have to be approved for a new employer to apply for Change of Employment?
I am on H1b visa since Oct 2021. My status was going to expire on Sept 30th, 2024. My current employer applied for a Extension of stay and the USCIS sent I-797C receipt notice on August 16th. The case is still pending so I don't have I-797A approval notice. I got a new job and they are filing an H1b COE petition. Does EOS have to be approved with the current employer before they can file for the COE petition?
A: H1b extension of stay does not have to be approved for a new employer to apply for change of employment
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A: USCIS regulations offer the possibility of H-1B portability, meaning that an H-1B worker who is changing employers may start work for the new employer while its petition is in process, provided that the new employer's petition was filed while the H-1B worker is still maintaining status and has not been employed without authorization. 8 CFR §214.2(h)(2)(i)(H). Although the previous employer's petition need not be approved prior to the new employer filing an H-1B petition, USCIS regulations state that USCIS must approve the previous employer's petition before USCIS can approve the new employer's petition unless your previously approved period of H-1B status remains valid. 8 CFR §214.2(h)(2)(i)(H)(3). Note that we do not observe uniform adjudications on this point, and USCIS has in the past approved the new employer's petition without first approving the former employer's petition.
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A:
Your new employer can file an H-1B Change of Employer petition even while your Extension of Stay is pending with your current employer. The receipt notice (I-797C) from your current extension application provides evidence of your valid status during this period.
Under USCIS regulations, you can begin working for the new employer as soon as they file the H-1B Change of Employer petition, thanks to H-1B portability provisions. This means you don't need to wait for either the extension or the new petition to be approved before starting your new job.
However, it's important to maintain proper documentation throughout this transition. Keep copies of both your current extension receipt notice and the new employer's H-1B filing receipt when you receive it. If your current extension happens to be denied while the Change of Employer petition is pending, inform your new employer immediately so they can take appropriate steps to maintain your status.
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