Portability of H-1B status

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 the law's 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."

Regulations to implement the H-1B portability provision have not yet been published, although DHS has been in the process of preparing them for quite some time. Until regulations are published, the only guidance available is a June 19, 2001 INS memo and a May 12, 2005 DHS memo . The guidance from those memos is presented in the following subsections.

Practice Note: Employment start date and dates on Forms I-129, ETA 9035, and I-797:

Although "portability employment" is authorized under the statute, there are some unanswered questions, including: can "portability employment" begin before the start date requested on the I-129?; what effect will inconsistency between the actual employment start date and the start date on the Form I-797 approval notice have on future applications for immigration benefits? Such questions will hopefully be addressed in DHS regulations. What is "new" H-1B employment? The statutory term "new" is read to include not only "new" employment when an individual changes employers, but also new concurrent employment.

When is an H-1B petition "filed" for portability purposes?

The definition of "properly filed" contained elsewhere in the immigration regulations may provide helpful guidance in the H-1B portability context:

An application or petition received in a Service office shall be stamped to show the time and date of receipt and, unless otherwise specified on part 204 or part 245 of this chapter, shall be regarded as properly filed when so stamped, if it is properly signed and executed and the required filing fee is attached or a waiver of the filing fee is granted. 8 C.F.R. §103.2(a)(7) (i)

Effect of approval notice gaps on portability

Porting under INA § 214(n) does not require that the alien currently be in H-1B status, as long as he or she is in a "period of stay authorized by the Attorney General."

Practice Note: Example from DHS memo

Alien is in H-1B status. Employer A timely files a non-frivolous extension of the alien's H-1B status. Alien's original petition, approved for Employer A, expires during the pendency of the extension. Alien is then in a "period of stay as authorized by the Attorney General" while Employer A's extension is pending. Employer B then files new petition and alien wants to port to Employer B. Under INA § 214(n), the alien should be permitted to port because he or she is in a "period of stay as authorized by the Attorney General."USCIS memo HQPRD 70/6.2.8-P , Wm Yates, May 12, 2005.

DHS interim guidance also states that "bridging" is possible (successive H-1B portability petitions filed for an alien while the previous H-1B petitions remain pending), but in such cases, every H-1B portability petition must separately meet the requirements for H-1B classification and extension of stay. If a petition in the "bridge" is denied, complications will arise:

In the event the alien's nonimmigrant status has expired while the petitions are pending, the denial of any filing in the string of extension of stay and/or change of status filings 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.USCIS memo HQPRD 70/6.2.8-P , Wm Yates, May 12, 2005

Continued validity of H visas after employer change

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.

9 FAM 41.53 N9.2-3; INS field memo from Office of Benefits (HQBEN), July 8, 1997, M. Aytes.

H-4 dependents and change of employer

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.