Posts tagged United States

If you are in the US on an H-1B visa, and you wish to change employers, don’t panic. With relatively recent changes to the immigration law it is now pretty easy. Prior to these changes it was difficult for H-1B employees to change employers. However, now it’s not that troublesome, thanks to the American Competitiveness in the 21st Century Act (AC21).

Under the old provisions, an H-1B employee who wanted to change employers had to wait until the USCIS (formerly the INS) approved the petition filed by the new employer before he or she could start working for that new employer.

American Competitiveness in the 21st Century Act:

The American Competitiveness in the 21st Century Act (AC21), effective October 17, 2000, made significant changes to the way things are done. It allows an H-1B worker to change employers and begin working for the new employer as soon as the new employer files the H-1B petition. The H-1B employee no longer has to wait for the new H-1B petition to be approved.

The ability bestowed on the H-1B worker(s) to start working for the new employer as soon as the new employer files the petition, without having to wait until the new petition is approved, is known as the “H-1B portability” provisions. The H-1B visa portability rules have been a great benefit for all H-1B, employees seeking to change employers.

Eligibility requirements to qualify for H-1B visa portability:

Because the H-1B portability provisions bestow the privilege on the H-1B nonimmigrant worker to start working for the new employer before the H-1B petition is approved, the requirements to qualify for H-1B visa portability are slightly rigid.

To be eligible for the H-1B portability provisions the following requirements must be met:

1. Lawful admission into the US: The nonimmigrant worker must have been lawfully admitted into the United States;
2. Non-frivolous petition: The new employer must have filed a non-frivolous petition for employment before the date of expiration of the H-1B nonimmigrant worker’s period of authorized stay in the US (a ‘non-frivolous’ petition is one that has a reasonable basis in law or fact);
3. Only legitimate employment: The nonimmigrant worker must not have accepted any unauthorized employment subsequent to his or her admission and before the filing of the new H-1B petition.
4. Previously issued H-1B: The nonimmigrant worker must have been previously issued an H-1B visa or otherwise been provided an H-1B status in the US.
5. Current status in the US: The nonimmigrant worker must be in an unexpired status (i.e. current) when the H-1B petition is filed.

Only if all of the above requirements are met, the H-1B nonimmigrant worker can start working for the new employer as soon as the new petition is filed.

Benefits of H-1B visa portability:

The H-1B portability provisions have been a benefit for both employers and H-1B nonimmigrant workers. The changes made it easier and allowed H-1B nonimmigrant worker(s) to change employers smoothly; and reduced what were often long delays created when an H-1B nonimmigrant worker wanted to transfer to a new employer but had to wait for a new H-1B petition to be approved. Employers and H-1B nonimmigrant workers also benefit from the constancy that the portability rules bring to the hiring and planning process.

Travel While Working while under the H-1B Portability Provision:

We often get questions about whether an H-1B nonimmigrant who is working for a new employer under the portability provisions can travel in and out of the US before the H-1B transfer petition has been approved. The answer is simply: Yes. An H-1B nonimmigrant working under the portability provisions is allowed to travel in and out of the US freely. However, in order to re-enter the US, the H-1B nonimmigrant should have a copy of the Form I-797 Filing Receipt showing that a petition was filed by a new employer, and should also carry a letter from the new employer stating that the H-1B holder is currently working for the new company.

Some useful notes on H-1B Portability Provision:

• There are no USCIS regulations that speak about an automatic revocation of an H-1B petition when the H-1B worker leaves his or her employer.
• The H-1B petition remains valid until its expiration date or until it is revoked.
• Generally, an employer must file a notice of revocation with the USCIS when an employee leaves, notifying the USCIS that he wishes to revoke the petition for that employee.
• Technically an employer must continue to pay an H-1B employee until the revocation notice has been sent to the USCIS. This is why most employers will send the notice as soon as they learn that an employee is leaving the company.

Conclusion:

The H-1B portability provision allows a nonimmigrant worker to change employers and begin working for the new employer upon filing of the new H-1B petition, rather than waiting for the petition to be approved. The petition must be non-frivolous, and the beneficiary must be a nonimmigrant admitted to the U.S. must have been previously issued an H-1B visa or otherwise provided H-1B status, must not have been employed without authorization before the petition was filed, and must be in an unexpired period of stay when the petition is filed.

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Source: http://www.visapro.com/Immigration-Articles/?a=1327&z=48