According to the regulations, if the H1b Visa holder (alien) is to perform services for more than one employer, each employer must file a separate petition with the Service Center having jurisdiction over the area where the alien will perform services or receive training, unless an established agent files the petition. In spite of the Department of Labor’s earlier pronouncement that different employing entities could be treated as joint employers, the INS has stated that it does not recognize the concept of “co-employers” in employee leasing agreements.
When employers share responsibilities for the employee, one of the firms must designate itself as the employer, or, if the alien has two employers, each must file a petition.
The INS has consistently stated that neither the new employer nor the beneficiary need take action with the INS if the beneficiary switches employers, as long as multiple petitions were approved and the petition for the current employer remains valid.
For example, where an alien had two petitions approved on his or her behalf, elected to take up employment with Employer A, but later became dissatisfied and switched to Employer B, no new or amended petition was required. Similarly, the Service has advised that, presuming both employers have petitions approved, an alien could take a 6-8 month leave of absence from Employer A to work for Employer B, and then resume working for Employer A without filing a new H1B visa petition. Nor was a new petition required when the beneficiary had switched back and forth between a parent company and its subsidiary, where both had approved H1B petitions.
In another case, the fact that the beneficiary was outside of the United States when the petition for Employer B was approved but was readmitted on the visa issued for Employer A (by whom the alien was at that time still employed), was not deemed a relevant factor.
It is important to note that in each of the above cases, the original H1 petition had not been revoked. Under the regulations, however, a petitioner is supposed to promptly notify INS when the beneficiary is no longer employed by the petitioner, at which time INS may then revoke the petition. While the present rule provides for revocation on notice under these circumstances, the proposed rule would make revocation automatic when the INS is notified that the beneficiary is no longer employed by the petitioner.