O-1b visa portability – how soon can I start work for new employer after filing form I-129?
I am an ‘Alien’ currently employed in the US on an O-1B (Extraordinary Artist) visa at Company 1. Sadly, this company went bankrupt last week. I am still working there to help them out as they are nice people, but they can no longer afford to pay me.
I found a new job a day after the bankruptcy was announced at Company 2, and have prepared a new application for a new O-1B visa, using form I-129, Petition for a Non-Immigrant Worker.
This is my question. Company 2 wants me to start working for them immediately. However, visa requirements (as far as I’m aware) state that an O-1B visa must be APPROVED by USCIS and employer must be sent form i-1797A, Notice of Action (Approval) before a Worker can begin work. I checked on the USCIS site and processing time is currently set at 45 days!
What are the legal implications if I start work for company B while my visa approval is pending? Could I (for instance) work my first 1-2 months unpaid, or have my pay put on hold till my visa is approved? Could this be considered training? I need to know fast as I will lose the job if I do not start work on Monday.
I know that the H-1B has a new ‘Portability’ rule as of Oct 2000, which states that a Worker may start work for a Sponsoring Company immediately upon FILING the visa application. Does anyone know if this new ‘portability’ rule also applies to the O-1B?
Many thanks for your help!
Dont do anything without speaking to a Aila Lawyer first
September 3rd, 2010 at 11:48 pmalthough there should be no problem ..cover yourself …
Portability does NOT apply to O-1 status. An individual in O-1 status must wait for the subsequent employer’s O-1 petition to be approved before they can begin to work there.
There is a "portability" provision in H-1 regulations which allows an applicant who is already in H1B status to begin working at the new employer as soon as that employer receives a notice of receipt for their H1B petition from the USCIS. This means that employment can begin before the processing and approval of the petition is complete.
The legal implications for working with company B before your petition is approved would mean that you would be contributing to the illegal population, you would be subject to arrest and removal, and if you’re ordered removed, you would be inadmissible for 10-years.
Slaves worked for free, and they worked very hard contributing to the profit of the plantation owners. If you work for company B for free, you would bring new meaning to the term "cheap foreign labor." The whole idea behind immigration laws and restrictions on visas is to prevent cheap foreign labor from taking jobs away from the legal work force. Working for free would be a violation of your status.
On Monday, be as far away from company B as I am.
September 3rd, 2010 at 11:48 pm