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Expert James
Expert James, Immigration Attorney
Category: Immigration Law
Satisfied Customers: 12170
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I am on H1- with premanent residency pending (priority date

Customer Question

I am on H1-B with premanent residency pending (priority date June 2010 EB2- India). I would like to change employers. the new emplyer has ITAR licence and works on defense related projects. What can the new employer do in order for me to join them? Can the employer request a licence for me to work on such projects also?
Submitted: 12 months ago.
Category: Immigration Law
Expert:  Expert James replied 12 months ago.

Hello! Thank you for using Just Answer. I am James, and I will be assisting you. As we work through your questions, think about this as a back and forth conversation. Once you've received the information you need, you can thank me by issuing me a positive rating of 3, 4, or 5 stars. This is the only way I get credit for doing my job, so please do not forget this before leaving the site.

I am unclear about something. Please answer the following:

When you say license, do you mean to ask whether you qualify for this type of work, based on your immigration status?

Customer: replied 12 months ago.
I have read somewhere ( that employers have to answer ITAR related questions on the H1-b petition and can request a licence for the foreign person in order for him/her to do this kind of work.
Expert:  Expert James replied 12 months ago.


That does not really answer my question. But it does not matter. US immigration authorities are not tasked with, nor do they have the authority or jurisdiction to determine, whether you are eligible for an ITAR license. Immigration officers only determine whether the job is a specialty occupation and whether you have the appropriate licenses and education/experience to fulfill the position.

So whether an employer can request a license for you to work on such projects is not an immigration question. They need to contact the appropriate licensing authority.

As far as the new employer filing for you, if the job requires a license, then you must get the license in order to qualify for the new employment on H1B. Then they file the H1B petition on your behalf. This is done exactly the same way as any original filing, except that if you were counted toward the cap at least once within the previous 6 years, you will not be cap-subject again.

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Customer: replied 12 months ago.
Dear sir,
That is not my question. Let me restate- my new employer is ITAR certified. Can I work on ITAR related projects? If not is there anything the employer can do to allow me to work on such projects (like apply for a licence on my behalf)? What options do I have if I were to join this company?
Expert:  Expert James replied 12 months ago.

You are asking an immigration attorney if you can work on ITAR projects. that is not an immigration matter. So what is your immigration question?

Customer: replied 12 months ago.
ITAR projects are US government defense related projects. I am asking if I (non immigrant H1-B visa holder) can work on such projects, and if so, then what is the procedure for ensuring that I am in compliance with the law. I believe this is an immigration related matter. If you are not knowledgeable about ITAR related activities then please let me know and I will seek information elsewhere.
Expert:  Expert James replied 12 months ago.

It is not that I don't understand the question or am not familiar with ITAR projects. I understand it perfectly.

Again, immigration does not determine whether an alien is eligible for government defense projects. The employer/agency determines that. If they find that aliens are eligible, and they require a license, then the USCIS requires you to provide proof of licensing. In other words, USCIS does not do the hiring or firing, nor does immigration make the determination as to whether an individual is eligible to be hired for a job. That is for the employer to determine. All immigration does is make sure that if the person is offered a position, that the position is a specialty occupation, and if a license is required, that the employee has the license.

It is the immigration cannot tell an employer or another government agency whether an alien is eligible for ITAR projects. That is for the other government agency and the employer to decide.

Do you understand the distinction I am making here?

Expert:  Expert James replied 12 months ago.

Hi, I’m just checking in to see how things are going.

I see you have reviewed my answer but I have not yet received a rating for my customer service. Do you need more help or need me to explain anything else? Please respond so that I know what to do next.

Thank you.