H-1B Visa Portability

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.

Related Links:
H1B Visa Cap / Quota for FY 2018
H-1B Visa Overview
H-1B Visa Renewal / Extension
H-1B Visa Transfer
Amended H-1B Visa
New H-1B Visa, Cap Exempt
H-1B Visa for Entrepreneurs
H-1B Visa for Teachers
H-1B Visa Attorney Fee
H-1B Visa Complete Do it Yourself Kit

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