U.S. immigration law imposes strict and complex rules on foreign professionals holding or seeking H-1B status when employment relationships change. This article outlines core issues applicants should focus on when planning to change employers, facing involuntary termination, or dealing with employer withdrawal of the petition before and after the H-1B effective date (typically October 1), and offers practical strategies based on experience.

I.Key Timelines and Status Conditions

Before understanding any procedural steps, it is essential to distinguish between “pre-H-1B” and “activated H-1B” status:

1. Before Effective Date: Pre-H-1B Status

First, for cap-subject employment, the employer registered in the H-1B lottery must be the same employer who files the Form I-129 petition. If the H-1B petition has been approved (Form I-797 approval notice issued) but the beneficiary has not yet commenced employment in the United States under H-1B status before October 1 of that year, the beneficiary is in a “pre-H-1B” status (cap-approved but not activated).

During this period, the H-1B status has not been activated. The beneficiary cannot directly transfer to another cap-subject employer. Transfer is only permitted to a cap-exempt employer, such as a university or nonprofit organization.

2. After Effective Date: Activated H-1B Status

Activation of H-1B status requires three conditions: a Form I-797 approval notice for Form I-129, employment with the original petitioning employer on or after October 1, and receipt of actual wages. Once these conditions are met, the beneficiary may subsequently change employers through the standard H-1B transfer process without the need to re-enter the lottery.


II.Risks of Employer Change or Involuntary Termination Before Effective Date

If the original employer withdraws the petition with USCIS before October 1 (e.g., due to layoffs, company bankruptcy, or disputes), the H-1B registration selection and petition approval are permanently voided. Even with an approved Form I-797, an unactivated H-1B is considered ineffective, and the beneficiary loses the fiscal year’s cap allocation. To work under H-1B status for a new cap-subject position, the beneficiary must participate in the next H-1B lottery.

Changing employers before the effective date is a high-risk action. Priority should be given to negotiating with the original employer to delay withdrawal and allow the status to reach activation.


III.Standard Procedures for Employer Change After Effective Date

1. Requirements for H-1B Transfer

The standard H-1B transfer process requires three conditions: activated status (evidenced by pay stubs), a complete Form I-129 petition filed by the new employer, and submission of the original H-1B approval notice. (Cooperation from the original employer is not required.)

2. Commencement of Employment with New Employer

Pursuant to the portability provision under 8 CFR §214.2(h)(11)(i), the beneficiary may begin employment with the new employer as early as the date the new employer files a non-frivolous Form I-129 petition. Prior to this date, the beneficiary must maintain lawful status (without unlawful presence or unauthorized employment).

3. Premium Processing

If the $2,805 Premium Processing (PP) fee is paid, USCIS will adjudicate the petition within 15 calendar days. For high-risk cases (e.g., where the specialty occupation requirement is in question), it is advisable to wait for approval before starting work. For low-risk cases, the beneficiary may begin work upon receipt of the USCIS receipt notice.


IV.Emergency Response Strategies for Involuntary Termination

	Scenario	Response Strategy
Before Effective Date	Employer Withdraws Petition	The H-1B cap selection and petition approval are automatically voided with no legal recourse. The beneficiary must immediately initiate alternative status options (e.g., maintaining F-1 status, changing to dependent status, applying for other nonimmigrant visas) or plan for departure from the United States.
After Effective Date	Termination of Employment	Pursuant to 8 CFR §214.1(l)(2), the beneficiary is entitled to a 60-day grace period to seek new employment, change status, or prepare for departure. If the new employer files a transfer petition within this grace period, work authorization may continue upon filing.

Conclusion

The H-1B process hinges on two critical stages: securing the cap allocation and activating the status. Any employment change before the effective date risks voiding the cap selection. After activation, status is maintained through continuous receipt of wages and lawful employment. Applicants should carefully evaluate the risk of petition withdrawal, the length of any status gap, and long-term immigration goals before making career decisions.

• Pre-Effective Date Risk Prevention: Avoid voluntary resignation; negotiate with the original employer to not withdraw the petition until October 1 effective date.
• Post-Effective Date Transfer Guidance: Initiate the H-1B transfer only after status activation and upon receipt of wage documentation.
• Emergency Plan for Involuntary Termination: Immediately initiate a change of status, file a transfer petition, or prepare for departure within the 60-day grace period.