Good news for H-1B employees looking to change employers; you don’t need to wait very long anymore. AC21 has modified its new H-1B portability rules and made the process fairly straightforward, allowing for lawful admission of individuals who want to initiate the process. It also allows users to transfer a petition filed for a new company to the appropriate department.
The Department of Homeland Security works with the office of the attorney general to ensure the application of an original petitioner follows the right channel in compliance with the Nationality Act.
This article will discuss what H-1B portability is, who is eligible for it, and other related questions you’ll find beneficial about previously admitted petitions.
What is H1B Portability, and Who is Authorized to Apply?
H1B portability refers to the provision intended to preserve the legal status of H-1B beneficiaries already in the US. It allows employed H-1B workers to enter employment with a new employer, provided the latter has fulfilled certain conditions.
The conditions include filing forms I-129 and I-129W before the H-1B worker’s status expiration date. Also, the new employer must have submitted an unexpired LCA with its petition covering the same work the new H-1B worker was hired for to stay authorized.
Only H-1B nonimmigrants employed under a valid LCA with one employer are authorized to use the portability provision. However, such can receive new employment provided the intended employer has filed an H-1B petition, even if it hasn’t been adjudicated.
Does the H-1B Portability Rule Cater to H-4 Beneficiaries Looking to Change Status?
The H-1B portability rule does not cater to H-4 holders looking to change to the H-1B status. Therefore, if you’re currently in the H4 status, you will need to wait until your H-1B petition is approved before you start working. In addition, the H-1B portability rule is only available to transfers between H-1B statuses – that is, an H-1B worker changing employers.
You can transfer if you’ve held the H-1B status before and are switching from H-4 back to H-1B if your employer files the same. However, issues usually arise in these transfers, so you want to ensure you do it properly before resuming work with your new employer.
If you’re unsure where you stand, it is better to wait for the recent petition to be approved. Or, you can consult an experienced immigration attorney who has worked on several immigration services to help put you through.
Can You Travel While Your H-1B Portability Petition is Pending?
You may travel outside the US if you, as an H-1B beneficiary, have joined your new employer under portability provisions. You may travel pending the adjudication of the new H-1B petition for a change of employer. You may also seek admission back into the country while the petition for portability provision is pending, provided you have a valid and stamped H-1B visa in your passport and you are in your grace period.
When coming back to the US, you are expected to go with the following:
- A current (that is, unexpired) passport with a valid H-1B visa stamp subject to cap previously, and
- A copy of Form I-797 filing receipt showing proof that your new employer files a new petition on your behalf.
For further details, you can seek the help of a consulate abroad about your new job, bridge petitions for a nonimmigrant worker, and how the appropriate documents should be properly filed. Remember also that as a nonimmigrant worker or foreign national, your documents for bridge petition have to be timely filed so that process can begin prior to any other consideration based on the final rule.
What Requirements and Documents Does An Employer Files to Qualify for H-1B Portability?
To qualify for the H-1B portability provision based on the final rule for a foreign national, your intended employer must file a non-frivolous H-1B petition on your behalf. Also, the new petition must fulfill the following requirements:
- The beneficiary must have entered the United States lawfully in valid nonimmigrant status like the B-1, H-1B, etc.
- The beneficiary must have been issued an H-1B visa before this time or otherwise provided with the H-1B status.
- The beneficiary must be in a current authorized period or grace period of stay when the H-1B portability petition is filed.
- The beneficiary must not have been employed without authorization, or the petition will be denied on a reasonable basis.
Can You Change Jobs With a New Employer While Your Filed Petition is Still Pending approval?
You may change jobs from a previous employer to a prospective employer while the petition filed on your behalf by your new employer is still pending. However, to avoid penalties associated with changing employers without authorization, you must meet the following conditions:
- You must have been successfully admitted into the US as a foreign worker,
- Your new employer must have filed a non-frivolous petition before your authorized stay expired because a non-frivolous petition is a major requirement.
- You must not have worked without authorization before filing the new petition,
If your valid visa and petition expired before your new employer filed the new petition, you are ineligible for a new visa, except someone can file for you on his or her behalf. You will be required to leave the US and come back only when the pending petition has been approved based on the cap subject employment authorization prior to your application.
What Are the Restrictions for Pursuing the Portability Provisions Based on the American Competitiveness in the Twenty First Century Act?
AC21 (American Competitiveness in the Twenty First Century Act of 2000) made the H-1B portability provisions available and laid the rules for cap exempt. There are two specified restrictions in the memo passed for the provisions that makes one lawfully admitted; they state thus:
- The applicant is not admissible in the H-1B status if the initial H-1B petition has expired. Unless the H-1B applicant can present proof that the USCIS has approved a new petition before they begin employment.
- The admission period is limited to the validity of the prior H-1B petition with additional ten days when there is no cap exempt.
What Do You Need to Begin Work for Company B Immediately?
If you stayed in the US after the termination of your previous employment with Employer A, you have an H1B status when you transfer to Employer B to take a new employment. In addition, if you leave the US, your H1B visa will no longer be valid. However, you can re-enter with valid B2 visitor status.
To begin work with Company B immediately, you need:
- A valid and approved H1B petition from Employer A showing you didn’t take up an unauthorized employment,
- A pending H1B petition was filed by Employer B, and
- A valid status to be in the US.
What Documents Do You Need for International Travel While Transferring?
You can travel out of the US even after transferring to your new company and while your petition is pending. However, you must have a stamped I-797 receipt notice for the I-129 transfer petition your new employer filed. It would help if you also had a valid H1B visa stamp in your passport for your initial employer.
What Can You Do If You’re Currently Employed with Company A in H-1B Status, But Company B Wants to Hire You?
In this case, Company B has to file a new H-1B petition for you to work with it. Once the USCIS receives the new petition, you can start working with Company B. However; your new H-1B petition must meet all the H1B portability provision requirements.
Additionally, you may want to wait until Company B has received the receipt notice from USCIS before you resume work with them. This helps prevent getting hooked on the potential problems associated with mailing or receiving H1B petitions.
Why Not Let Herman Legal Group Help You Handle It?
Are you looking for immigration attorneys who are vast in immigration law in the United States? Do you need an immigration lawyer you can trust to handle your H-1B visa portability provisions and guarantee authorized stay? Then, look no further than the legal services offered by Herman Legal Group.
As a firm, we have worked for high-skilled nonimmigrant workers who don’t want to work for the same employer. We have a firm grasp of the American Competitiveness in the Twenty First Century Act of 2000, and we can help you with such petition so you can begin working.
You can contact us today and schedule a consultation by calling our valid phone number +1-216-696-617, and these consultations can happen on Zoom, Skype, Google Meet, or any other teleconferencing app that is comfortable for you as a foreign national who wants to work with a cap-subject employer or a cap exempt employer. Also, you can schedule a private consultation with Richard Herman – the best immigration lawyer by booking online.
The H-1B portability provision lets nonimmigrant workers change employers and start working when the new petition is filed for your new employer. H1B workers no longer have to wait until it is approved before they resume work. If you have a visa that was previously issued and have issues with portability provisions when taking up new employment on the start date of the fiscal year, you need the services of an immigration attorney before your employment ends.