If you are in the US in H1B status and you want to change employers, don’t panic.
The American Competitiveness in the 21st Century Act (AC21) and its H1B portability rules have made that process fairly straightforward.
H1B Transfers Simplified
H1B portability rules allow H1B workers to change employers and begin working for the new employer as soon as a new H1B petition is filed with USCIS. The H1B employee does not have to wait for the new H1B petition to be approved first.
1. H1B Portability: What Is It?
‘H1B Portability’ means that an H1B worker may begin working for a new employer in H1B status as soon as the employer files the I-129 Petition. The employee does not have to wait until the petition is approved, as in other visa categories.
Employers should keep in mind that the portability provisions generally DO NOT APPLY if the employee is moving from a cap-exempt employer to a cap-subject employer.
If the beneficiary was not counted towards the cap previously, he or she is subject to the H1B cap restrictions, and employers can only file a transfer petition on their behalf if the cap is open and the employee can only begin working as of the start date of the petition and only after the H1B is approved.
H1B Portability: Eligibility Requirements
Because the H1B portability provisions bestow a privilege on the H1B nonimmigrant worker – namely the ability to start working for the new employer before the H1B petition is approved, the requirements to qualify for H1B portability are strictly enforced.
In order to take advantage of H1B portability rules, the following requirements must be met. Only if these are met, the H1B nonimmigrant worker can start working for the new employer as soon as the new petition is filed.
- Lawful admission into the US: The nonimmigrant worker must have been lawfully admitted into the United States.
- Non-frivolous petition: The new employer must file a non-frivolous petition for employment before the date of expiration of the H1B 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).
- No unauthorized employment: The nonimmigrant worker must not have accepted any unauthorized employment subsequent to his or her admission in H1B status.
- Previously issued H1B: The nonimmigrant worker must have been previously issued an H1B visa or otherwise been provided H1B status in the US.
- Current status in the US: Current guidance from USCIS confirms that H1B portability only applies to those currently in H1B status or those who are in an authorized period of stay based on a pending H1B extension.
H1B Portability: The Upside
The H1B portability provisions benefit both employers and H1B nonimmigrant workers. H1B portability allows H1B nonimmigrant worker(s) change of employers smoothly, without undue delay.
Employers and H1B nonimmigrant workers also benefit from the predictability that the portability rules bring to the hiring and planning process.
H1B Portability: The Downside
While the H1B portability provisions have definite benefits for the employee and new employer alike, the ability to ‘port’ has one definite downside – employees and employers have no guarantee that the H1B petition will be approved. If the H1B transfer petition is denied, the H1B nonimmigrant worker may be left out of status.
H1B employees and their employers must make a decision on whether to take advantage of H1B portability on a case-by-case basis and on the advice of a qualified immigration attorney.
My Case Scenario
Frank James, who was employed by Company A, hears layoffs are coming and to protect his status applies for a change of status from H1B to H4. He then receives a job offer from Company B, who submits a new H1B petition for him and requests an extension of his H1B status.
Frank uses the H1B 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 H1B petition for Company B. Company B’s H1B petition is then approved. Three months later the change of status to H4 is also approved. At this point what is Frank’s status in the US?
Revocation of The H1B Petition
When an H1B nonimmigrant worker leaves an employer, the employer should withdraw LCA and file a notice of revocation with USCIS informing the agency that the employee is no longer with the employer.
Technically, an employer is liable to continue paying the wages of the H1B employee until the revocation notice has been sent to the USCIS.
DID YOU KNOW?
1. If an H1B nonimmigrant worker takes advantage of the H1B portability provisions but the H1B petition is subsequently denied, the worker may return to their previous employer IF the employer has not revoked the previous H1B petition and it is still valid.
2. However, if the previous employer has already revoked the H1B petition for their previous employee, then the H1B nonimmigrant worker may be left out of status if the new H1B petition is denied.
Travel While H1B Portability Petition Is Pending
H1B workers who have joined the new employer under portability provisions pending adjudication of the new H1B change of employer petition, may generally travel outside the U.S. and seek admission back into the U.S. while the H1B portability petition is still pending as long as they have a valid H1B visa stamped in their passport.
When an H1B nonimmigrant working under the portability provisions travels outside the U.S., in order to re-enter the US, he or she must carry:
1. An unexpired passport with a valid H1B visa stamp
2. A copy of the Form I-797 Filing Receipt showing that a petition was filed by a new employer
It’s also recommended that the H1B nonimmigrant carry a letter from the new employer stating that the H1B holder is currently working for the new company.
My Case Scenario
Frank will be in valid H1B status with Company B. The H4 Change of Status application did not invalidate his H1B status. Furthermore, the H4 application was considered abandoned when Frank (the foreign national) departed from the United States.
Had it not been for the trip, Frank would be in H4 status without work authorization, because it was the last application approved.
The H1B portability provision allows a nonimmigrant worker to change employers and begin working for the new employer upon filing of the new H1B petition, rather than waiting for the petition to be approved.
VisaPro Law Firm can provide you with the expert guidance necessary to successfully change employers freely using H1B portability provisions. Our experienced attorneys have filed H1B petitions with a near 100% success for a variety of clients ranging from one-man start-up firms to multinational companies, from software engineers to market research analysts, optometrists, occupational therapists, organic farm managers, social workers, etc.
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