Under the portability provisions of the American Competitiveness in the 21st Century Act (AC21), a foreign national worker previously issued an H-1B visa and/or granted H-1B status may transfer to a new employer.
Before the foreign national worker can join the new employer, the new employer must file an H-1B 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 H-1B 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 H-1B 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 H-1B petition.
If the the H-1B petition is denied, then the foreign national worker must stop employment with the new employer at that time.