Requirements to Hire a Foreign National From Another Company
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4. Does That Mean the Status Violation Can be Ignored?
Not quite. While it would appear that an employee—notwithstanding a status violation– can port to a new employer while in POSABAG, once a determination on the new employer petition has been made, generally, the employee will have to leave the U.S. or hazard beginning to accumulate unlawful status.
In the case of the employee who is the beneficiary of a petition approval, however, her departure from the U.S. would not disable her from applying for a new H-1B visa, which would allow her to return to the U.S. to take up her position with the new employer.
The Take Away:
- Be conscious of the fact that in hiring a foreign national who is the beneficiary of H-1B status that porting is not automatic but requires the new employer to make a valid filing with Immigration;
- Speak to the employee about how to transition to the new employment without terminating status; above all, advise the employee not to resign;
- If you know or later learn that an employee is a foreign national, please consult immigration counsel. As you one can see, the landscape can become very complicated to traverse without a competent guide.
Related articles:
6 Smart Hiring Guidelines of Foreign National Employees
