Understanding H-1B Portability: Switching Employers

Key Takeaways:

H-1B portability allows visa holders to switch employers immediately upon filing a non-frivolous petition, simplifying job transitions.
To be eligible, workers need lawful U.S. admission, timely petition filing, approved LCA, and no unauthorized employment.
Benefits include immediate employment for workers and quicker hiring for employers; risks include ending authorization if the petition is denied.

H-1B Portability Explained: Switching Employers on an H-1B Visa

The concept of H-1B portability has revolutionized the way H-1B visa holders can transition between employers. This provision offers significant flexibility and simplicity for both employees and employers. Let’s dive into what this means and how it can benefit you.

Understanding H-1B Portability: Switching Employers

What is H-1B Portability?

H-1B portability allows an H-1B visa holder to change employers without having to wait for the new H-1B petition to be approved. Essentially, this means you can start working for your new employer as soon as they file a non-frivolous H-1B petition on your behalf.

What Are the Requirements for H-1B Portability?

To be eligible for H-1B portability, the following conditions must be met:

Lawful Admission: The H-1B worker must have been lawfully admitted to the United States.
Timely Filing: The new H-1B petition must be filed before the expiration of the worker’s current authorized period of stay.
Approved LCA: The new H-1B petition must be accompanied by an approved Labor Condition Application (LCA) for the new employment.
No Unauthorized Employment: The worker cannot have engaged in unauthorized employment since their last admission to the United States.

Benefits of H-1B Portability

For Workers

Job Flexibility: H-1B portability allows you to change jobs without the risk of losing your H-1B status or having to leave the United States.
Immediate Employment: You can begin working for your new employer as soon as they file the petition.

For Employers

Quick Hiring: Employers can bring H-1B workers on board more quickly as they do not have to wait for approval of the new H-1B petition.

Limitations of H-1B Portability

Approval Risk: If the new H-1B petition is denied, the worker’s employment authorization under the portability provision will end.
No Unauthorized Work: The H-1B worker must not have worked illegally from the date of entry into the U.S. until the new petition is filed.

How Does H-1B Portability Preserve Legal Status?

The H-1B portability provision is designed to maintain the legal status of an H-1B nonimmigrant who is already in the United States. According to the American Competitiveness in the 21st Century Act (AC21), this provision allows an H-1B worker to begin employment with a new employer immediately after a non-frivolous H-1B petition is filed.

Frequently Asked Questions About H-1B Portability

What Does Portability Mean in Terms of H-1B Visas?

In the context of H-1B Visas, portability means that H-1B status can be “carried” from one employer to another. This makes the process of changing jobs much more straightforward and stress-free for visa holders.

What Are the Key Requirements for H-1B Portability?

Previous H-1B Status: The foreign national must have been granted H-1B “status” or been issued an H-1B Visa.
Lawful Entry: The individual must have been lawfully admitted to the U.S.
Timely Petition: The new employer must file an H-1B petition before the individual’s authorized stay expires.
No Unauthorized Work: The individual must not have engaged in unauthorized employment.

How Long is the H-1B Portability Grace Period for Laid-Off Workers?

Laid-off H-1B workers have up to 60 days or until the expiration date of their current I-94 (whichever period is shorter) to find new employment, change visa status, or depart the United States without violating their status.

Note: The grace period is not automatic. The Department of Homeland Security (DHS) has the discretion to determine if a full 60-day period is justified, depending on the circumstances.

What If I Switch Jobs: How Does the H-1B Visa Transfer Work?

If you are working with Company A and want to join Company B, Company B must file a new H-1B petition. You can start working for Company B as soon as USCIS receives the new H-1B petition and issues a receipt notice, assuming all portability conditions are met.

Do I Need a New Visa If My H-1B Transfer Is Approved?

You don’t necessarily need a new H-1B visa just because you change employers. If you hold a valid H-1B visa for Company A, you can continue to use it to re-enter the U.S., provided you also have the new H-1B Approval Notice from Company B.

Can I Travel Abroad During the H-1B Transfer Process?

Yes, you can travel abroad and re-enter the United States before your H-1B change-of-employer petition is approved, but you must meet specific conditions:
– Valid Passport and Visa: Ensure your passport and visa are valid.
– Previous H-1B Admission: You were previously admitted as an H-1B holder.
– Timely Petition Filing: You can show that the new petition was filed on time.

How Should Companies File a New H-1B Petition for an Employee Using Portability?

Companies must ensure their new H-1B petition is “non-frivolous,” meaning it has a reasonable basis in law or fact. To do this, they must meet the following criteria:

Lawful Admission: Verify the candidate was lawfully admitted to the U.S.
Previous H-1B Visa: Ensure the candidate has previously held an H-1B visa.
Current Period of Stay: Confirm the candidate is within an unexpired period of stay.
No Unauthorized Employment: Ensure the candidate has not worked illegally.

What Happens if USCIS Approves the Petition but Denies the Extension of Stay?

If the H-1B petition is approved but the extension of stay is denied, the foreign national must leave the U.S. However, they can apply for re-admission immediately, provided they have a valid (unexpired) H-1B visa in their passport.

Is H-1B Portability Applicable to H-4 Visa Holders?

Generally, H-1B portability is only for transfers between H-1B statuses. If an H-4 visa holder has never held H-1B status, they must wait for their H-1B petition to be approved before starting employment. However, exceptions exist for those who held H-1B status in the past and are switching back to H-1B from another visa category, such as H-4 or F-1.

Does H-1B Portability Overlook Out-of-Status Periods?

The USCIS has adopted a zero-tolerance approach for periods of out-of-status. Although there was some leniency in the past, discretionary approvals for status extension are now rare.

Key Takeaways for H-1B Portability

Immediate Start: You can start working for the new employer as soon as the new petition is filed.
Maintained Status: Portability helps you maintain your legal status in the U.S.
Strict Requirements: Ensure all criteria are met to avoid complications.

For further authoritative information, visit the official USCIS page on H-1B visas.

By understanding H-1B portability, you can make informed decisions about your employment status and navigate job changes seamlessly while staying compliant with U.S. immigration laws.

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Glossary of Immigration Terms Related to H-1B Portability

H-1B Portability
- A provision that allows H-1B visa holders to start working for a new employer as soon as the new H-1B petition is filed, without waiting for its approval.
Labor Condition Application (LCA)
- A form approved by the Department of Labor that the new employer must submit as part of the H-1B petition, ensuring compliance with wage and work condition standards.
Non-Frivolous Petition
- An H-1B petition that has a reasonable basis in law or fact, meaning it is not submitted for fraudulent or baseless reasons.
Timely Filing
- The requirement that the new H-1B petition must be submitted before the expiration of the worker’s current authorized period of stay in the U.S.
Lawful Admission
- The condition that the H-1B worker must have been legally allowed entry into the United States to be eligible for portability.

This Article In A Nutshell:

H-1B portability offers H-1B visa holders the freedom to switch jobs without waiting for a new petition approval. This provision ensures swift transitions for employees and employers, providing job flexibility and immediate employment. Factors like lawful admission and timely filing influence eligibility. Understanding these guidelines is crucial for a smooth employment change.
— By VisaVerge.com