By taking advantage of the H-1B portability rule as stated in American Competitiveness in the Twenty-First Century Act of 2000 (AC21), an H-1B holder can change their employer and start to work for a new employer on the date that the USCIS receives the H-1B transfer petition submitted by the new employer on behalf of the H-1B holder.

In order to qualify for the portability rule, an H-1B holder, under the qualifications specified byINA 214(n)(2), must be an individual:

1. who has been lawfully admitted into the United States;

2. on whose behalf an employer has filed a non-frivolous petition for new employment before the date of expiration of the period of stay authorized by the Attorney General; and

3. who, subsequent to such lawful admission, has not been employed without authorization in the United States before the filing of such petition.

Specifically, there are four possible situations under which an H-1B holder can take advantage of the H-1B portability rule, depending on whether the alien’s former and new employers are cap-subject or cap-exempt.

1. A cap-exempt worker transferring to a new cap-exempt job.

In this case, because neither job was subject to the H-1B cap, the alien can file for the H-1B transfer at any time and begin working for the new employer when the H-1B transfer is filed. The H-1B quota and associated rush in April are irrelevant in such a case.

2. A cap-subject worker transferring to a cap-exempt job.

In this case, since the new job is not subject to the H-1B cap, the alien can file for the H-1B transfer at any time and start working for the new employer when the H-1B transfer is filed. The H-1B quota and the associated rush in April are irrelevant.

3. A cap-subject worker transferring to a cap-subject job.

In this situation, the alien has already taken an H-1B number; therefore, the new job does not require a new H-1B number. The alien can thus file for the H-1B transfer at any time and start working for the new employer when the H-1B transfer is filed.

4. A cap-exempt worker transferring to a cap-subject job.

If the alien’s work had been subject to the cap in the past six years and the alien wants to quit his/her job with Employer A and start his/her new employment with Employer B, under the AC 21 portability rule, the alien worker can transfer to his or her new employment with the new employer prior to the approval of their transfer petition by USCIS. Similar to the petitions above, such petitions are not subject to the cap, and the H-1B quota and the associated rush in April are irrelevant.

However, if an H-1B holder who worked for a cap-exempt employer and was never subject to the cap in the past six years wants to transfer to a cap-subject employer, two different situations can arise regarding the H-1B quota.

1. If there are still H-1B visa numbers available, by virtue of the portability rule, an employee can transfer from a cap-exempt employer to a cap-subject employer.

2. However, if the H-1B numerical limitation has already been met for the fiscal year, and an employee of a cap-exempt H-1B petitioner wishes to move to a cap-subject employer by utilizing the H-1B portability rule to start working for the new employer immediately, an argument could be made that the H-1B petition filed by the new employer is frivolous and that it will thus be denied. USCIS has made it clear that they will only approve an H-1B petition filed under these circumstances if the beneficiary does not first cease to be employed by the cap-exempt petitioner. See USCIS Memorandum, D. Neufeld, “Supplemental Guidance Relating to Processing Forms I-140 Employment-Based Immigrant Petitions and I-129 H-1B Petitions, and Form I-485 Adjustment Applications Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21)” (May 30, 2008)

For more detailed information about this issue, please refer to Specific issues about H-1B we have posted.

Please note that under all four circumstances described above, if the H-1B transfer petition is approved before October 1 of the fiscal year, then the employee should stop working for the new employer at the time of approval and wait until October 1 to begin working for them again.

For instance, say John is a university researcher (cap-exempted) and currently in H-1B status. He finds a new job in the private sector and his private employer will petition for an H-1B visa for John. John has never been counted against the H-1B quota before since he was, up until now, employed by an institution of higher learning. Therefore, if the current H-1B quota has already been used up, he may not transfer to the new employer. However, if there are still any H-1B numbers available, John can employ the portability rule to transfer to and start working for his new employer, as long as USCIS receives the transfer petition. However, John should also note that if his transfer petition is approved before October 1 of the year, he should cease to work for the new employer at the time of approval and only resume his new work after October 1.

H-1B Portability: Practical Matters to Consider

Please note that using the H-1B portability rule to transfer and work for a new employer instantaneously may not always be the best choice. Specifically, using the H-1B portability rule always bears the risk that the transfer petition may be denied, and the beneficiary will have to face the difficultiesof falling out of status and having to depart the US.

To avoid such situations, the safest method is to avoid abusing the H-1B portability rule by remaining under current H-1B status and applying for the premium processing service for a transfer petition. By using the premium processing service, an alien can get the result of their transfer petition within 15 days, and then switch to the new employer after approval.

If the employer or the H-1B holder cannot wait even these few weeks—for example if an H-1B holder is about to be laid off or if the new employer needs the alien worker to start working immediately—the H-1B transfer petition should be well prepared ahead of time.

(Updated 10/3/2012 by AD)

Sources:

Immigration and Nationality Act –INA § 214(n)(2)
USCIS Memo –AC21 Memo (May 30, 2008)