CAN I PORT MY H-1B?

can i portThe American Competitiveness in the Twenty-First Century Act (AC21) took effect on October 17, 2000 and it provides that a non-immigrant who was previously issued an H-1B visa or provided with H-1B nonimmigrant status may begin working for a new H-1B employer as soon as that new employer files a ?non-frivolous? (meaning a petition that has basis in law or fact) H-1B petition on the non-immigrant?s behalf:

  • The non-immigrant was lawfully admitted into the United States;
  • The non frivolous petition for new employment was filed before the end of their period of authorized stay; and
  • The non-immigrant has not been employed without authorization since his lawful admission to the U.S., and before the filing of the non-frivolous petition.
  • Prior to the AC21 Act foreign nationals had to wait for USCIS to approve a Transfer H-1B Application before commencing new employment. It is important to note that current regulations authorize employment with the existing employer after a request for extension of H-1B status has been filed. In this instance the foreign national is authorized to work, but the I-9 Employment Eligibility Form does not contain a provision for this authorization, thus employers should staple the receipt notice for Form I-129, Petition for Nonimmigrant Worker to the I-9 form. The employer should also make a copy of the foreign national?s passport, a copy of the previously approved H-1B?s notice of action I-797 and/or I-94, the latest I-94, Departure Record if the foreign national has traveled and re-entered the U.S. Subsequently to the issuance of Form 797, and evidence showing the employee had been ?performing services for an authorized H-1B employer.? This evidence consists of pay stubs, a signed and dated statement from the H-1B holder to the effect that the candidate has not been employed without authorization since the foreign national?s most recent entry into the U.S.

This type of employment through portability lasts until the pending or new H-1B application is adjudicated by USCIS. Travel while the H-1B is pending is strongly discourages because the employee may lose the ability to return to the new company?s employment until the H-1B application is adjudicated and a new H-1B stamp is obtained at the US Embassy or Consulate. If the application is approved Form I-9 needs to be updated while if it is denied the employee must cease H-1B employment at once.

The status of a dependent of a principal non-immigrant who is working pursuant to portability benefits is derivative of and linked to the status of the principal non-immigrant. This means that dependents will remain in H-4 status if the principal non-immigrant is lawfully working pursuant to the AC21 Act.

Nevertheless, it is important to note that if an individual is in H-4 status and an employer is about to file a H-1B Application to benefit him/her, the individual cannot start working immediately after the petition has been submitted to USCIS. In fact, he/she will need to wait until the petition is approved to commence employment.

WHAT HAPPENS WHEN A H-1B WORKER IS LET GO?

If a foreign national?s H-1B employment is terminated there is no grace period. This means that the individual immediately goes out of status.

The issue of whether a non-immigrant has lawfully worked or maintained lawful status under the AC21 Act usually comes up in four contexts:

1Adjustment of Status, when determining whether a non-immigrant has maintained lawful status or engaged in unauthorized employment.

2Request for Extension of Stay, when determining whether a non-immigrant has maintained lawful status or engaged in unauthorized employment.

3Request for change of non-immigrant status, when determining whether a non-immigrant has continued to maintain status.

4Removal proceedings because of failure to maintain non-immigrant status.

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