H-1B Portability (i.e., Changing H-1B Employment to a New Employer)What is H-1B portability?
Before October 17, 2000, H-1B employees who wanted to change employers had to wait until the USCIS approved the new employer’s H-1B petition before the employee could start working at the new job.
Since October 17, 2000, however, the American Competitiveness in the 21st Century Act (“AC21”) has allowed an H-1B employee to change employers and begin employment with the new employer as soon as the H-1B petition was filed (instead of having to wait for the new H-1B petition to be approved). This authority to start working as soon as the new petition is properly filed and remains pending is the so-called “H-1B portability” provision.
For you to take advantage of the H-1B portability provision, your new employer must file a “non-frivolous” H-1B petition (i.e., one that has a reasonable basis in law or fact) on your behalf. In general, the new H-1B petition must meet all of the following requirements to qualify:
- The beneficiary, must have been lawfully admitted to the United States in valid nonimmigrant status (such as B-1, F-1, H-1B, etc.).You, the beneficiary, must have previously been issued an H-1B visa or otherwise been provided H-1B status.
- The beneficiary, must not have been employed without authorization.
- The beneficiary, must be in an unexpired (i.e., current) period of stay when the H-1B petition is filed.
In general, as long as you meet these requirements at the time your new employer files its H-1B petition on your behalf, you can start working for the new employer as soon as your new petition is filed
What should I do if I am currently working with Company A in H-1B status, but Company B wants to hire me?
Company B must file a new H-1B petition for you to work there. As soon as USCIS receives Company B’s new H-1B petition for you, you may start working at Company B, as long as your new H-1B petition meets all of the requirements of the “H-1B portability” provision. In addition, because of potential problems in the mailing or receipt of the petition, it is safest for you to wait until Company B actually receives the USCIS “receipt notice” before you start working for them.
I am currently working with company A. I am planning to join company B. My visa shows that I work for my previous employer, company A. After I transfer my H-1B status to company B, do I have to get a new visa stamp again from my home country or I can just continue working in the United States and obtain a new H-1B visa later on, when it is more convenient for me?
There is a difference between “H-1B status” and “H-1B visa.” Therefore, if your new employer obtained a new H-1B petition approval for you, that H-1B approval allows you to transfer your status to your new company and continue working for the new company for as long as the H-1B petition and any extensions allow. There is no immediate need for you to return to your home country and obtain a new H-1B visa simply because you will be changing or have changed H-1B companies.
In fact, if you later on leave the United States, you may sometimes even use your “Company A” H-1B visa (if it still has some time left on it), along with your new H-1B Approval Notice for Company B, to re-enter the United States to work for Company B without having to go to a U.S. consulate abroad to apply for a new H-1B visa. Before you attempt to do this, however, you should check with competent legal counsel to make sure this will work in your particular circumstances.
I am an H-1B holder and I started working for my new employer under the new portability provisions. Can I leave the United States and re-enter before my H-1B change-of-employer petition has been approved?
Generally yes, but the following conditions must be met for you to be admitted into the United States in H-1B status in such circumstances (and your spouse and children must also meet these same requirements to be admitted in H-4 status):
- You are otherwise admissible.
- You are in possession of a valid, unexpired passport and visa endorsed with the name of the original petitioner.
- You were previously admitted as an H-1B or the otherwise accorded H-1B status (H-4 status for spouse and children).
- You have evidence that the new petition was timely filed with the appropriate Service Center, by showing a dated filing receipt, Form I-797, or other credible evidence. To be considered a timely filing, the petition must have been filed before the expiration of the H-1B’s previous period of admission.
- The burden of proof remains with you to prove that you are admissible as an H-1B (H-4 for spouse and children) and eligible for the “H-1B portability” provision.
I am an H-4 visa holder. A potential employer is willing to sponsor me for H-1B status. Does the H-1B portability rule allow me to change status from H-4 to H-1B?
Generally not. If you are currently in H-4 status (and have never held H-1B status), then you cannot start working until your new H-1B is approved. That is, H-1B portability is generally only available for transfers from H-1B status to H-1B status (with a new employer).
Of course, there is an exception if you have held H-1B in the past but are now switching from H-4, B-1/B-2, F-1, etc. back to H-1B. For example, you may have held H-1B status, then switched to H-4 (e.g., you were laid off from your initial H-1B job), and now want to switch back to H-1B. It generally does not matter which visa category was between the first H-1B and the new H-1B, as long as you did have an H-1B at one point before trying to use the H-1B portability provision to go back to H-1B. The most common combinations we see are “H-1B to F-1 to H-1B” and “H-1B to H-4 to H-1B.” Other combinations are also possible.
There can be some issues in such transfers, so it is important to make sure your transfer is properly done before you start working for the new employer. If you are not positive that the “H-1B portability” provision is applicable to your H-1B transfer to your new H-1B employer, it is safest either to consult competent immigration counsel or to simply wait for the new H-1B petition to be approved before starting to work with the new H-1B employer.
I am an H-4 visa holder. My spouse is porting his H-1B from Company A to Company B. Do I need to file a form I-539 when my spouse ports? Also, will I need a new visa when my spouse ports?
Unless your spouse is asking for an extension of his H-1B status, you will not need to file form I-539. An I-539 is an application to either extend or change a person’s status. If your spouse is only asking for a change-of-employer and not an extension of his/her H-1B status, you will not need to do anything. You may use your current H-4 visa for travel even after your spouse ports his H-1B to a new employer.