Question: I have filed an H-1B to change employers from my current H-1B employer to my new employer. I received an RFE asking for evidence of “Maintenance of Status.” What does this mean?
Answer: Great question. In order for H-1B portability to apply, you must show USCIS that you have maintained your H-1B status. Basically, you need to provide evidence showing USCIS that you remained employed by your H-1B employer up to the time USCIS received the H-1B requesting a change to your new employer. Generally, you would submit your last 3 months pay slips to USCIS along with the H-1B change of employer petition. If you’ve done this and if the pay slips were current as of the filing of the new petition you should be fine. However, occassionally USCIS will still request more evidence that you maintained your H-1B status. This evidence can include your W-2 statements and a copy of your Federal Income Tax Return.
Example 1: I filed a change of employer petition on June 1st for the beneficiary to change from Employer A to Employer B. The petition was received by USCIS on June 2nd. Along with that petition, I included the beneficiaries pay slips from Employer A from May 2009, April 2009 and March 2009. For good measure, I also included the beneficiary’s W-2 statements from 2008. This was a simple maintenance of status issue because the beneficiary had remained at Employer A right up to the filing of the H-1B petition. However, Example 2 contrasts this.
Example 2: Same facts as Example 1 except the employee was terminated from Employer A on April 1, 2009. This beneficiary was no longer maintaining status as of her termination date on April 1, 2009. In this case, the beneficiary is not maintaining status and must depart the U.S. after termination from her H-1B employer. If the gap between termination and the filing date is long and pay slips or unpaid leave evidence is not available to show maintenance of H-1B status, USCIS would likely deny the change of employer and approve the H-1B requiring the beneficiary to return to her home country to obtain H-1B stamping before beginning work for Employer B.
Note: H-1B portability enables you to “port” or change employers to a new employer AND begin working for the new employer upon FILING of the change of employer petition. In order to commencee employment upon filing of the new petition, however, three requirements must be met:
1. You must have been lawfully admitted to the U.S. (must have an unexpired passport and visa and be admissible and must provide USCIS with your I-94 and H-1B approval notice showing your lawfully admitted status);
2. The new petition must be “nonfrivolous” meaning that it must be a bona fide petition for a position which is available and for which you are qualified and eligible to fill;
3. the new petition was filed before the date of experation of the period of stay authorized.
If the above conditions are met and you continue to maintain status in the U.S. you may change employers and can start to work for the new employer as soon as the petition reaches USCIS (I recommend waiting for the receipt). However, if you are terminated, your H-1B relationship has ended with your employer and the employer is REQUIRED by law to notify USCIS of your termination and provide you with transportation back to your home country. This will seriously hinder your job search in the U.S., however, so line up that new job BEFORE your employer terminates you or BEFORE you tender your resignation. In this case, a little pre-planning and a backup employer can make a huge difference.