- In simple words, H-1B portability means a person who is on H-1B status may change his or her employer if the new employer files an H-1B petition on behalf of the employee. The employee need not wait for H-1B petition to be approved by the U.S. Citizenship and Immigration Services (USCIS) to start working at the new employer. The employee may start the new job upon the filing of the H-1B petition by the new employer. The employee need not even wait for the receipt notice to be issued by the USCIS, although it is good practice to wait for the receipt notice but it is not required.
- In the past, it could take a new employer several months to bring an H-1B professional working for another company on board. A provision contained in legislation enacted in 2000 (§ 105 of AC 21)[1] addresses this problem by providing for portability of H-1B status so that an H-1B visa holder may begin new employment upon filing of the H-1B petition, rather than waiting for adjudication of the application. The statute[2] requires the beneficiary’s prior attainment of H-1B status, lawful admittance, engagement solely in authorized employment, and a nonfrivolous petition by the new employer before the expiration of authorized stay. Does it mean if the person held H-1B status in the past but currently hold another status, such as H-4, would be eligible for H-1B portability? As per the USCIS, the answer is no. USCIS stated in the April 7, 2011 Q&A document that portability under AC 21 § 105 is available only to those nonimmigrant who are either (1) currently in H-1B status, or (2) in a period of authorized stay resulting from the filing of an H-1B extension petition.
- Under current USCIS rules, implicit employment authorization for an H-1B worker continues during the time when an extension of stay application is pending, up to 240 days after the expiration of the prior period of stay. The 240-day rule[3] applies when the extension application timely filed. The government has indicated that the H-1B worker is considered to be in a “period of stay authorized by the [DHS]” during this 240-day period. The USCIS has clarified that an H-1B temporary worker can “port” from one employer to another even after the nonimmigrant’s I-94 or last approved petition has expired as along as he or she is still in a “period of stay authorized by the [DHS].” Note the following example: Worker in is H-1B status. Employer A timely files a nonfrivolous extension of the worker’s H-1B status. Worker’s original petition, approved for Employer A, expires during the pendency of the extension. Worker is then in a “period of stay as authorized by the [DHS]” while Employer A’s extension is pending. Employer B then files new petition and worker wants to port to employer B. The worker should be permitted to port because he or she is in a “period of stay as authorized by the [DHS].” In other words, porting does not require that worker currently be in H-1B status as long as he or she is in a period of stay authorized by the [DHS].”
- The November 2016 rule codifies this policy. Specifically, the rule states that to be eligible for H-1B portability the new H-1B petition must have been filed while the foreign worker is in H-1B status or is in a period of authorized stay based on a timely H-1B extension petition. Importantly, however, the rule establishes a 60-day grace period that preservers the status of an H-1B worker whose employment is terminated early. During the grace period, an H-1B nonimmigrant could begin new H-1B employment as soon as a new employer files a nonfrivolous portability petition as under current law.
- In its interpretative guidance, USCIS clarified that there can be successive H-1B portability petitions filed for an individual while the previous H-1B petitions remain pending (i.e., creating a “bridge of H-1B petitions) under certain circumstances. To be approved, however, every H-1B portability petition must separately meet the requirements for H-1B classification and for an extension of stay. In the event the individual’s nonimmigrant status expired while the petitions are pending, the denial of any filing in the string of extension of stay and/or change of status filing undercuts the “bridge” that “carried” any petition filed after the expiration of any approved status which will result in the denial of the successive requests to extend or change status.
- This policy is now codified under the November 2016 rule. Specifically, the final rule[4] allows H-1B employers to file successive H-1B portability petitions (often referred to as “bridge petitions”) on behalf of H-1B nonimmigrant workers. An H-1B nonimmigrant worker who has changed employment based on an H-1B portability petition field on his or her behalf may again change employment based on the filing of new H-1B portability petition even if the former H-1B portability petition remains pending. Eligibility for employment pursuant to a second or subsequent H-1B portability petition, however, depends on (1) whether an prior H-1B portability petitions have been approved or remain pending and (2) whether the individual’s Form I-94, issued upon admission or extended pursuant to an approved H-1B petition, has expired. If the request for an extension of stay was denied in a preceding H-1B portability petition and the individual’s Form I-94 authorizing admission in or extension of H-1B has expired, a request for an extension of stay in any successive H-1B portability must also be denied. If the individual’s I-94 has not expired when a preceding H-1B portability petition is denied, the successive H-1B petition may be approved. Successive H-1B portability petitions may provide employment authorization as long as such H-1B portability petition separately meets the requirements for H-1B classification and for an extension of stay.
- Although the portability provision authorizes a person to work for the new employer in H-1B status, the employer must still meet their employer verification obligations upon the commencement of employment by the H-1B worker. In this regard, the USCIS’ Handbook for Employers, Form M-274, states that, when H-1B worker “ports” to new employment, acceptable “List A” documents (i.e., documents that evidence both identity and employment authorization for I-9 purposes) are the employee’s passport and the Form I-94 arrival-departure record for his or her previous job. In addition, the new employer must complete a new Form I-9 for this newly hire employees. The new employer should write “AC-21” and enter the date when Form I-129 was submitted to USCIS in the “Additional Information” field in Section 2. The form should be included in the employer’s reverification ticker system. Once the petition is approved, the employer should update the I-9 by inserting the number from the replacement I-94 and the new expiration date of the employee’s current period of stay.
[1] American Competitiveness in the 21st Century Act (AC 21) (2000)
[2] 8 U.S.C. § 1184(n)
[3] 8 C.F.R. § 274a.12(b)(20)
[4] See 8 C.F.R. § 214.2(h)(2)(i)(H)
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