Continued validity of H visas after employer change
If the H-1B worker has changed employers since first entering the United States and has a valid visa annotated for the previous employer, s/he may reenter the U.S. using that visa, provided s/he presents a valid H-1B approval notice for the new employer upon reentry to the United States.
Traveling Outside the US While an H-1B Transfer Petition is Pending with USCIS
A June 19, 2001 legacy INS field memo described how ports-of-entry (POE) should process requests for admission to the United States under the "H-1B portability" provisions of The American Competitiveness in the 21st Century Act of 2000 ( AC21). The memo stated that "[a]n H-1B applicant for admission who is no longer working for the original petitioner is admissible at a POE, pursuant to portability provisions in AC21, as long as certain conditions [listed in the memo] are met." The applicant must:
- Be otherwise admissible.
- Unless exempt, be in possession of a valid, unexpired passport and H-1B visa.
- Document that he or she was previously admitted as an H-1B or otherwise accorded H-1B status, with a copy of the previous Form I-94 or I-797 approval notice showing the petition validity dates.
- Document that a new H-1B petition was filed on his or her behalf, before the expiration of his or her prior period of H-1B stay. This can be done by showing the I-797 receipt notice, in combination with the documentation shown in item 3. If the applicant does not have Form I-797, and a query of CLAIMS shows no evidence that a new petition has been filed, the applicant will not be admitted.
The memo also specifies two additional restrictions:
- "If the original H-1B petition has expired, the applicant is not admissible in H-1B status, unless the applicant presents evidence that a new petition has been approved."
- The period of admission is limited "to the validity of the previous H-1B petition, plus ten days."
A February 14, 2001 DOS field cable advised consular officers of the INS memo and H-1B portability policy, and instructed officers to implement that policy in the visa issuance context.
Also see the DOS Foreign Affairs Manual:
9 FAM 402.10-11(A) - Validity of H1-B Visas When Change of Employer Pending
a. Public Law 106-313 provides for "portability" for H1-B aliens, permitting them to change jobs while the petition filed by their new employer is still pending approval by USCIS. In order to change employers without penalty, H1-B aliens must meet the following conditions:
(1) The alien had been lawfully admitted into the United States;
(2) The new employer filed a non-frivolous petition for the alien prior to the expiration of his or her authorized stay; and
(3) The alien had not worked without authorization prior to the filing of that new petition.
b. If the alien's prior visa and petition have expired prior to the filing of the new petition, the alien is not eligible to receive a new visa until the pending petition has been approved.
There are occasional reports that this legacy INS guidance is not consistently applied at all CBP ports of entry. H-1B travelers can be informed of this, and advised to consult an experienced immigration lawyer if they want advice regarding travel during the portability period.