H-1B Portability Rule and Practical Matters to Consider
As we reviewed in the former section and discussed in detail, by taking advantage of the H-1B portability rule as stated in AC 21, an H-1B holder can change their employer and start to work for the new employer on the date when USCIS receivesthe 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 must meet the qualifications described in INA 214(n)(2):
(1) who has been lawfully admitted into the United States;
(2) on whose behalf an employer has filed 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 situation 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.
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 awkwardness of falling out of statusand having to depart the US.
To avoid such situations, the safest method is to avoidabusing the H-1B portability rule by remaining under current H-1B status and applying for 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.
We are striving for delivering the best to our clients. If you need any help from us, please feel free to contact us through E-mail at email@example.com .
Founded in 1996, Zhang & Attorneys, LLLP offers legal services to clients nationwide in all aspects of U.S immigration law. We have successfully handled thousands of immigration cases.
At Zhang & Attorneys, LLLP, our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, and I-485 cases. In the past fifteen years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (firstname.lastname@example.org) for a free evaluation.
Zhang & Attorneys, LLLP.
Silicon Valley New York Los Angeles Chicago Houston Austin