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H-1B · CHANGE OF EMPLOYER · UPDATED OCTOBER 3, 2026
Filed, not mailed. Eligible, not assumed.
Quick answer: An eligible H-1B worker may begin working for a new employer once that employer’s nonfrivolous H-1B petition is properly filed with USCIS, or on the petition’s requested start date if that is later. The worker must have been lawfully admitted in (or otherwise given) H-1B status, the petition must be filed before the authorized stay ends, and the worker must not have worked without authorization since that admission. Approval is not required to start, but a denial ends the authorization.
By Richard T. Herman, Esq.
Founder of Herman Legal Group and an immigration lawyer for more than 30 years. Attorney profile · Why trust Richard?
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What H-1B portability is
Portability comes from the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), now in INA 214(n). DHS implemented it in 8 CFR 214.2(h)(2)(i)(H). It lets a qualifying H-1B worker start new or concurrent H-1B employment while USCIS decides the new employer’s petition. It is a work-start rule for people already in the H-1B system, not a shortcut around the petition itself.
The three conditions
- Lawful H-1B admission. You were lawfully admitted to the United States in H-1B status, or otherwise provided H-1B status (for example, through an approved change of status).
- Timely filing. The new employer’s nonfrivolous H-1B petition is filed before your authorized period of stay ends. A qualifying grace period counts as a period of authorized stay for this purpose.
- No unauthorized work. You have not worked without authorization since your last lawful admission and before the new petition is filed.
Work may begin when the petition is filed or on its requested start date, whichever is later. Portability authorization continues until USCIS decides or the employer withdraws the petition.
Currently in H-4, F-1 or another status? Portability is built for workers in H-1B status. If you hold another status, plan on waiting for approval and the approved start date before beginning H-1B work, unless counsel confirms a specific rule covers you.
What counts as filed
A job offer, a signed contract or a package in the mail is not enough. Before the petition can be filed, the new employer generally needs a certified Labor Condition Application from the Department of Labor. Then the complete petition, with the correct fees and signatures, must be received by USCIS. Keep the USCIS receipt notice (Form I-797) or electronic filing confirmation as proof of the filing date.
Older guides mention a separate Form I-129W. Fee information is now part of Form I-129 itself; check the current Form I-129 instructions rather than relying on outdated form lists.
Cap counting is a separate question. A worker previously counted against the H-1B cap is generally not counted again when moving between cap-subject employers. A worker whose current H-1B is cap-exempt, such as through a university, generally needs a cap selection before moving to a cap-subject employer.
After a layoff: the grace period is not work authorization
Under 8 CFR 214.1(l)(2), an H-1B worker whose employment ends may have a grace period of up to 60 consecutive days, or until the I-94 expires if sooner, once per authorized validity period. During that time a new employer can file, the worker can seek a change of status, or the worker can prepare to depart. The grace period itself does not authorize work. DHS has proposed changes to the grace period; see our H-1B grace-period update for the current status.
Denials, withdrawals and successive petitions
If USCIS denies the new petition, or the employer withdraws it, portability authorization ends. Stop the new employment and get advice immediately about status and remaining options.
A worker can move again while an earlier petition is still pending, using a successive petition. Each one depends on the period of stay that came before it. If an earlier extension-of-stay request is denied and no other valid period of stay remains, later petitions that relied on it can fail too. Track each filing date, I-94 date and decision carefully.
Travel while the new petition is pending
A change-of-employer petition usually asks USCIS to extend your stay. Leaving the United States while that request is pending can cause USCIS to treat the extension request as abandoned, even if the petition itself is later approved for consular processing. Returning generally requires a valid H-1B visa and admission by CBP. Plan international travel with the employer and counsel before departure.
| Record | What it shows |
|---|---|
| Most recent I-94 | Your current admission and authorized stay |
| Prior H-1B approvals | Lawful H-1B status and cap history |
| Pay records and last day worked | Continuous employment, or when a grace period began |
| New petition receipt or filing confirmation | The filing date that starts portability |
| Requested start date | The earliest date work may begin |
Frequently asked questions
Can I start with the new employer before USCIS approves the petition?
Yes, if all three conditions are met, the petition is properly filed, and the requested start date has arrived. Keep proof of filing.
Does portability apply if I was laid off?
It can, if the new petition is filed before your authorized stay, including any qualifying grace period, ends, and you did not work without authorization. Calculate the dates before relying on it.
What happens if the new petition is denied?
Portability authorization ends with the denial. Your status and options depend on your remaining period of stay and any other pending filings.
Can I work for two H-1B employers at once?
Concurrent H-1B employment requires a petition from each employer. Portability can apply to a properly filed concurrent petition if the same conditions are met.
Changing H-1B employers or recently laid off?
Bring your I-94, H-1B approvals, last day of employment and the new employer’s filing details. HLG’s attorneys can confirm whether portability applies and how to protect your status.
Related HLG resources
- H-1B lawyers for employers and workers
- Work, travel and status resources: H-1B job changes
- H-1B 60-day grace period update
- H-1B travel while an I-485 is pending
Primary sources
- 8 CFR 214.2(h)(2)(i)(H): H-1B portability
- 8 CFR 214.1(l)(2): grace periods
- INA 214 (8 U.S.C. 1184)
- USCIS Form I-129 and instructions
General information, not legal advice for a particular case. Rules and filing procedures change. Updated October 3, 2026. HLG meets clients in Cleveland and Columbus (Worthington), Ohio, and by remote consultation nationwide.
