Changing H-1B employers: portability, new petitions, the cap and the six-year limit

What does the new employer have to file?

H-1B status is tied to a petition from a specific employer. When a worker in the US changes employers, the new employer files a petition on Form I-129 asking USCIS for H-1B classification and an extension of the worker's stay. It needs its own certified labor condition application (LCA) from the Department of Labor. If the petition is approved, the stay may be extended for the petition's validity, within the overall H-1B time limits.

Working for two employers at once is possible, but each employer files its own petition.

Sources: 8 CFR 214.2(h)(2)(i)(C)–(E)

When can the worker start the new job?

Under H-1B portability, an eligible worker may start new or concurrent employment when the new employer properly files a nonfrivolous petition, or on the requested start date, whichever is later. The worker is eligible if all three are true:

• They were lawfully admitted in, or otherwise given, H-1B status.
• The new petition was filed before their authorized stay expired.
• They have not worked without authorization since their last admission.

Sources: 8 CFR 214.2(h)(2)(i)(H)

What happens if the new petition is denied?

Portability work authorization lasts only until USCIS decides the new petition. If it is approved, the worker continues for the period on the new approved petition. If it is denied, portability ends; the worker may return to the previous employer only if that earlier employment authorization is still valid.

Sources: 8 CFR 214.2(h)(2)(i)(H); USCIS, H-1B Specialty Occupations: period of stay and changing employers (portability)

Can a worker move again while a petition is pending?

Yes. A worker working under portability can start another job when a further employer files another H-1B petition, even if the earlier petition is still pending and even if their I-94 has expired in the meantime. The risk is in the chain: if an earlier petition's extension request in the chain is denied, a later petition's extension request cannot be approved, unless the worker's previously approved H-1B status is still valid.

Sources: 8 CFR 214.2(h)(2)(i)(H)

What if the job changes but the employer stays the same?

The same employer files a new or amended Form I-129 for new employment or a material change in terms. Moving to a worksite outside the area covered by the current LCA is a material change, with limited exceptions for short-term placements and jobs that involve frequent travel. If the worker is eligible for portability (see above), they may work under the new terms from filing or the requested start date, whichever is later; otherwise they must wait until the petition is approved.

Sources: 8 CFR 214.2(h)(2)(i)(C)–(E); 8 CFR 214.2(h)(2)(i)(H); USCIS, H-1B Specialty Occupations: period of stay and changing employers (portability)

Does the cap apply again?

Usually not, if the worker was already counted. USCIS says that a worker who continues cap-exempt employment, was previously counted toward the cap, or otherwise remains cap exempt will not become subject to the cap again during the same H-1B validity period.

The exception is a move from cap-exempt work, such as a university, to a cap-subject employer, for someone never counted. That petition is subject to the cap, so the new employer must first register and be selected in the annual registration. If cap-exempt employment ends without a new cap-exempt petition, the worker becomes subject to the cap unless counted within the same six-year period. A worker can take a concurrent cap-subject job while keeping the cap-exempt one.

Sources: USCIS, H-1B Specialty Occupations: period of stay and changing employers (portability); 8 CFR 214.2(h)(8)(iii)(F)(5)–(6)

How long can a worker stay in H-1B status overall?

A petition is approved for up to three years at a time, and the total stay in H-1B is generally six years, counting time in L status. Changing employers does not restart the clock. After six years, the worker generally cannot extend, change status or be readmitted in H or L status until they have lived and been physically present outside the US for the immediately preceding year, apart from brief trips.

A worker who owns more than half of the petitioner, or has majority voting rights, is limited to 18 months for the initial petition and for the first extension.

Sources: 8 CFR 214.2(h)(9)(iii)(A), (h)(13)(iii)(A) and (h)(15)(ii)(B); USCIS, H-1B Specialty Occupations: period of stay and changing employers (portability)

Can time spent abroad be added back?

Yes. Any time spent physically outside the US for more than 24 hours during an approved H-1B petition's validity does not count toward the six years, whatever the reason. It can be "recaptured" in a later petition. The employer must request it and prove it, for example with passport stamps, I-94 records or airline tickets and a chart of dates. USCIS may grant all, part or none of the time requested.

Sources: 8 CFR 214.2(h)(13)(iii)(C)

What are the exceptions to the six-year limit?

Two exceptions in the regulations allow H-1B status beyond six years for a worker on the green card path. Both depend on the facts of the case.

• Lengthy delay: at least 365 days have passed since a permanent labor certification was filed for the worker (if one is needed) or since an employment-based immigrant petition was filed. Extensions are in increments of up to one year. The new H-1B employer does not have to be the one that filed the labor certification or immigrant petition, but filing dates cannot be combined to reach 365 days.
• Per-country limit: the worker is the beneficiary of an approved EB-1, EB-2 or EB-3 immigrant petition and would get that status but for the per-country limit on immigrant visas. Extensions are in increments of up to three years. The regulation refers to the per-country limitation; USCIS's page also mentions the worldwide limits.
• The lengthy delay exception is lost if the worker does not apply for adjustment of status or an immigrant visa within one year after a visa becomes available, unless USCIS excuses the delay as beyond their control.

Sources: 8 CFR 214.2(h)(13)(iii)(D)–(E); USCIS, H-1B Specialty Occupations: period of stay and changing employers (portability)

What if the job ends before a new one starts?

USCIS says that a worker who is laid off, fired, quits or otherwise stops working may have up to 60 consecutive days, or until the end of their authorized validity period if sooner, to find new employment, change status or leave. If the employer ends the job, it is liable for the reasonable cost of return transportation; not if the worker resigns.

Sources: USCIS, H-1B Specialty Occupations: period of stay and changing employers (portability)

Fees and the $100,000 payment, as of 19 October 2026

As of 19 October 2026, the USCIS Form G-1055 fee schedule (edition 10/16/26) lists, for each petition: the Form I-129 filing fee for H-1B of $780 on paper or $730 online ($460 for a small employer or nonprofit); an Asylum Program Fee of $600 ($300 for a small employer, $0 for a nonprofit); the ACWIA fee (American Competitiveness and Workforce Improvement Act) of $1,500 or $750, depending on how many workers the employer has, which applies to a change of employers unless the employer is exempt, such as a university or a nonprofit or government research organization; and a $500 fraud prevention and detection fee for a petition to employ an H-1B worker currently working for another employer. Other fees can apply. Fees change; lawyer fees are separate.

USCIS's H-1B page says the $100,000 Proclamation payment does not apply to a petition for a worker inside the US asking for an amendment, change of status or extension of stay when USCIS grants it. It can apply if USCIS finds the worker ineligible for the change or extension, for example if the worker leaves the US before USCIS decides a change of status. On 8 June 2026 a federal court vacated the guidance implementing the payment; USCIS says DHS is complying while it considers next steps. This is unsettled.

Sources: 8 CFR 214.2(h)(19)(i) and (iii); USCIS Form G-1055, Fee Schedule (edition 10/16/26): H-1B Registration Tool, Appendix A I-129 H-1B petitions, and Form I-907; USCIS, H-1B Specialty Occupations: Presidential Proclamation and court order alerts

Timing

There is no fixed processing time for change-of-employer petitions in these sources. USCIS processing times vary and nobody controls them; check the official USCIS processing times page. Portability means a properly filed, eligible petition can let the worker start before USCIS decides.

Sources: 8 CFR 214.2(h)(2)(i)(H)

How Visa Trouble can help

We can point you to official information, but we don’t assess or prepare H-1B petitions. Free route discovery at Visa Trouble can show routes worth comparing if your plans go beyond this one. Visa Trouble is not a law firm and does not give legal advice.