Late H-1B filings may result in unauthorized employment and unanticipated consequences

Before an H-1B worker can begin work with a new employer or at certain new work locations, an H-1B petition for transfer or amendment must be filed with USCIS. If the worker begins work prior to the required filing, he or she may be identified by immigration law and regulations as engaging in “employ[ment] without authorization,” also known as unauthorized employment.

Below are the basic rules and consequences of employing persons that engage in unauthorized employment –


RULE #1: An H-1B worker who engages in unauthorized employment has failed to maintain their H-1B status. Immigration regulations require that USCIS not approve a request to extend status if the H-1B beneficiary failed to maintain status.

  • What does this mean for your company and H-1B employees?
    • If an H-1B employee starts working at a new employer or new work location before the required transfer or amended petition is filed with USCIS and USCIS becomes aware of this issue, then the H-1B approval notice will not include an I-94. As a result, the H-1B employee will need to exit the United States and attend a visa interview.

RULE #2:  An H-1B worker who engages in unauthorized employment is not eligible for H-1B "Portability." Immigration regulations do not allow an H-1B worker to "port" to a new employer or new work location if he or she has been employed without authorization prior to the filing of the petition.  

  • What does this mean for your company and H-1B employees? 
    • If an H-1B employee starts working at a new employer or new work location before the required transfer or amended petition is filed with USCIS, then the H-1B employee is not authorized to work at that location until the petition is ultimately approved by USCIS. Additionally, the H-1B employee needs to travel out of and reenter the United States to cure the unauthorized employment violation.

Unauthorized employment can cause problems in other areas as well. For example, unauthorized employment may bring about I-9 compliance problems for an employer. Also, persons that participate in unauthorized employment may face certain obstacles when applying for a green card. Lastly, unauthorized employment issues could leave an employer vulnerable to contractual liabilities if the employer represents to other parties, such as vendors and end-clients, that its employees are properly authorized to work.

By: Zachary Taylor

Zachary Taylor advises employers and individuals on all aspects of U.S. immigration law, with a particular focus on nonimmigrant visas. His practice includes filing petitions and applications for immigration benefits, responding to requests for evidence issued by government agencies, and drafting motions and appeals.