What is ‘H-1B Portability’?
In October 2000, former President Clinton signed the American Competitiveness in the Twenty-First Century Act (AC21). One of the most sought after provisions in AC21 is the “portability” provision, which eases the process of changing jobs.
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 AC21 portability provision, the worker must either be in H-1B status, or be in another non-immigrant status (F-1, B-2, H-4, etc) and have previously been in H-1B status and not left the US for over 12 months.
The worker must not have engaged in unauthorized employment since admission to the US.
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.