If you are in the US on an H-1B
visa, and you wish to change employers, don't panic. With relatively recent
changes to the immigration law it is now pretty easy. Prior to these changes
it was difficult for H-1B employees to change employers. However, now it's not
that troublesome, thanks to the American Competitiveness in the 21st Century
Act (AC21).
Under the old provisions, an H-1B employee who wanted to change employers
had to wait until the USCIS (formerly the INS) approved the petition filed by
the new employer before he or she could start working for that new employer.
American Competitiveness in the 21st Century Act:
The American Competitiveness in the 21st Century Act (AC21), effective October
17, 2000, made significant changes to the way things are done. It allows an
H-1B worker to change employers and begin working for the new employer as soon
as the new employer files the H-1B petition. The H-1B employee no longer has
to wait for the new H-1B petition to be approved.
The ability bestowed on the H-1B worker(s) to start working for the new employer
as soon as the new employer files the petition, without having to wait until
the new petition is approved, is known as the "H-1B portability"
provisions. The H-1B visa portability rules have been a great benefit for all
H-1B, employees seeking to change employers.
Eligibility requirements to qualify for H-1B visa portability:
Because the H-1B portability provisions bestow the privilege on the H-1B nonimmigrant
worker to start working for the new employer before the H-1B petition is approved,
the requirements to qualify for H-1B visa portability are slightly rigid.
To be eligible for the H-1B portability provisions the following requirements
must be met:
- Lawful admission into the US: The nonimmigrant worker must
have been lawfully admitted into the United States;
- Non-frivolous petition: The new employer must have filed
a non-frivolous petition for employment before the date of expiration
of the H-1B nonimmigrant worker's period of authorized stay in the US
(a ‘non-frivolous' petition is one that has a reasonable basis
in law or fact);
- Only legitimate employment: The nonimmigrant worker must
not have accepted any unauthorized employment subsequent to his or her
admission and before the filing of the new H-1B petition.
- Previously issued H-1B: The nonimmigrant worker must have
been previously issued an H-1B visa or otherwise been provided an H-1B
status in the US.
- Current status in the US: The nonimmigrant worker must
be in an unexpired status (i.e. current) when the H-1B petition is
filed.
Only if all of the above requirements are met, the H-1B nonimmigrant worker
can start working for the new employer as soon as the new petition is filed.
Benefits of H-1B visa portability:
The H-1B portability provisions have been a benefit for both employers and
H-1B nonimmigrant workers. The changes made it easier and allowed H-1B nonimmigrant
worker(s) to change employers smoothly; and reduced what were often long delays
created when an H-1B nonimmigrant worker wanted to transfer to a new employer
but had to wait for a new H-1B petition to be approved. Employers and H-1B nonimmigrant
workers also benefit from the constancy that the portability rules bring to
the hiring and planning process.
| PUZZLER |
Q: Frank James who was employed by Company A
hears layoffs are coming and to protect his status applies for
a change of status from H-1B to H-4. He then receives a job
offer from Company B, who submits a new H-1B petition for him
and requests an extension of his H-1B status. Frank uses the
H-1B visa portability rule to begin employment with Company
B. Before there is a decision on his change of status request
Frank departs the US, taking a day trip to Canada. He returns
with the receipt notice for the H-1B petition for Company B.
Company B's H-1B petition is then approved. Three months
later the change of status to H-4 is also approved. At this
point what is Frank's status in the US?
A: Frank will be in valid H-1B status with Company B. The
H-4 application is considered abandoned when Frank (the foreign
national) departs from the United States. Had it not been for
the trip, Frank would be in H-4 status without work authorization,
because it was the last application approved. |
|
Travel While Working while under the H-1B Portability Provision:
We often get questions about whether an H-1B nonimmigrant who is working for
a new employer under the portability provisions can travel in and out of the
US before the H-1B transfer petition has been approved. The answer is simply:
Yes. An H-1B nonimmigrant working under the portability provisions is allowed
to travel in and out of the US freely. However, in order to re-enter the US,
the H-1B nonimmigrant should have a copy of the Form I-797 Filing Receipt showing
that a petition was filed by a new employer, and should also carry a letter
from the new employer stating that the H-1B holder is currently working for
the new company.
Some useful notes on H-1B Portability Provision:
- There are no USCIS regulations that speak about an automatic revocation
of an H-1B petition when the H-1B worker leaves his or her employer.
- The H-1B petition remains valid until its expiration date or until it is
revoked.
- Generally, an employer must file a notice of revocation with the USCIS when
an employee leaves, notifying the USCIS that he wishes to revoke the petition
for that employee.
- Technically an employer must continue to pay an H-1B employee until the
revocation notice has been sent to the USCIS. This is why most employers will
send the notice as soon as they learn that an employee is leaving the company.
Conclusion:
The H-1B portability provision allows a nonimmigrant worker to change employers
and begin working for the new employer upon filing of the new H-1B petition,
rather than waiting for the petition to be approved. The petition must be non-frivolous,
and the beneficiary must be a nonimmigrant admitted to the U.S. must have been
previously issued an H-1B visa or otherwise provided H-1B status, must not have
been employed without authorization before the petition was filed, and must
be in an unexpired period of stay when the petition is filed.
The above article is brought to you by "VisaPro.com".
VisaPro’s US Immigration Lawyer Services include K-1 Visa, K-3, Adjustment
of Status, Green Card, and over 100 Immigration Services. The information in
this article is not intended to be legal advice.
If you have questions specific to your case, we suggest that you consult with
VisaPro's experienced immigration attorneys at http://consultattorney.visapro.com
Visit VisaPro regularly for updates and the latest immigration news at http://www.visapro.com
