Under the portability provisions of the American Competitiveness in the 21st Century Act (AC21), a foreign national worker previously issued an H1B visa and/or granted H1B visa status may transfer to a new employer.
Before the foreign national worker can join the new employer, the new employer must file an H1B visa Transfer petition with USCIS on behalf of the alien
The foreign national worker must not have accrued unlawful presence in the US.
Under AC21, H-1B workers can begin working for a new employer as soon as the new employer files an H1B visa petition for the worker with USCIS.
The regulations define “filing” as having been physically received by USCIS.
Qualifying workers for whom a petition was filed can begin work for the new employer immediately upon USCIS receiving the H1B visa transfer petition.
The primary limitation on this portability provision is that the new employer must have filed a “non-frivolous” petition, which is one with some basis in law and fact.
To take advantage of the portability provision, the worker must be in the U.S. pursuant to a lawful admission and must not have engaged in unauthorized employment since that admission.
Employers should follow current I-9 documentation procedures, as well as keeping a copy of the worker’s I-94 and a copy of the receipt notice for the new H1B visa petition.
If the the H1B visa petition is denied, then the foreign national worker must stop employment with the new employer at that time.