Can I Work On H-1B Status Prior To Approval?
You may only work in H-1B status prior to approval if you are currently in H-1B status (performing the job duties as detailed in your most recently approved H-1B OR it is within 60-days after your cessation of such employment, AND you are not otherwise in violation of your nonimmigrant status) when the H-1B Change of Employer (Transfer) petition is filed by a new employer. If you are changing from another nonimmigrant status into H-1B status, then you must wait for the H-1B petition to be approved, as well as your request for extension of stay. Please note that the H-1B visa has two components. First, there is the component that is connected to the work you are going to do for the U.S. employer. Second, there is the extension of stay component. Both are issued in one approval notice, but there are times when the H-1B can be approved and the extension of stay can be denied. As stated above, you must actually be working for a U.S. employer in H-1B status at the time the Transfer petition is filed, OR within 60-days of termination/resignation with time remaining in the validity period of your most recent approval, AND not otherwise in violation of your nonimmigrant status.
Additionally, you must not have violated your status during your period of H-1B stay. For e.g., If you do work outside of your H-1B status, whether it is for yourself or for another employer, and it is not authorized, you will not be able to begin work in H-1B status prior to approval. The regulation that allows a U.S. employer to file an H-1B Transfer petition within the 60-day period after cessation of your H-1B employment, was enacted on January 17, 2017. The utilization of the 60-day exception requires an examination of your immigration status during the most recent H-1B approval periods. It is recommended that you speak to an immigration lawyer to ensure that you can exercise the 60-day exception – where you may not be currently employed, yet still able to begin working in H-1B status prior to approval.
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