Nonimmigrants currently in H-1B status with one employer can begin employment with a new employer as soon as the new employer files a non-frivolous I-129 petition for new H-1B employment, under H-1B "portability" provisions. The new employer and beneficiary do not have to wait for the new petition to be approved for the new employment to begin. If the new petition is denied, however, "portability" work authorization is automatically terminated. To qualify for H-1B "portability" employment, the nonimmigrant must:

  • Have been previously issued an H-1B visa or otherwise provided H-1B nonimmigrant status;
  • Have been lawfully admitted into the United States as a nonimmigrant;
  • Not have engaged in employment without authorization since that admission; and
  • Be the beneficiary of a non frivolous I-129 petition for new H-1B employment filed with USCIS before the expiration of the "period of stay authorized by the Attorney General."

The current DHS and DOS policy is that an H-1B nonimmigrant visa remains valid during its validity period regardless of a change in the beneficiary's employer. As long as the alien remains in H-1B classification, the visa is considered to be valid up until the date of its expiration. An H-1B nonimmigrant who follows USCIS procedures to change employers in the United States may use the previously issued visa to apply for readmission to the United States if it is still valid. The H-1B worker should present the H-1B approval notice for the new (current) H-1B employment upon reentry.

If the new employer requests an expiration date the same as that which appears on the H-4 dependents' current Forms I-94, no action needs to be taken on behalf of the H-4 dependents. Their status remains H-4 as long as the H-1B nonimmigrant maintains his or her status. However, if the new employer extends the expiration date beyond that noted on the original H-1B petition and on the H-1B's I-94 and H-4 I-94s, an I-539 application to extend the H-4 status of dependents is needed.