The Portability Rule


In the American Competitiveness in the Twenty-First Century Act (AC21), Congress provided H-1B visa holders a useful allowance. While in valid status, these alien workers are, by law, allowed to change employers and begin working for a new employer on the date that U.S. Citizenship and Immigration Services (USCIS) receives the associated H-1B transfer petition, in effect bypassing the constraints of the annual H-1B cap. This allowance is known as the “portability rule.”

Who Qualifies?

In order to qualify for a change in employer via the portability rule, an H-1B worker must first fulfill criteria specified in INA 214(n)(2), which demands that an H-1B visa holder is an individual:

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

  2. on whose behalf an employer has filed a nonfrivolous 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.

After meeting these criteria, an H-1B worker can take advantage of the portability rule in four possible situations, depending on whether the alien’s former and new employers are cap-subject or cap-exempt.

#1: Moving from Cap-Exempt to Cap-Exempt

Neither the current nor the prospective future job is subject to the annual H-1B quota in this situation. Accordingly, an H-1B transfer petition can be filed at any time, and the alien is permitted to begin working for the new employer on the date USCIS receives the transfer petition. In sum, the H-1B cap and associated April rush are irrelevant in this case.

#2: Moving from Cap-Subject to Cap-Exempt

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

#3: Moving from Cap-Subject to Cap-Subject

In this situation, the alien’s previous H-1B application was already subject to the cap, and so her petition for the new, normally cap-subject job will not be subject to the cap a second time. The H-1B transfer petition can thus be filed at any time, and the alien can start working for the new employer once the transfer is filed.

#4: Moving from Cap-Exempt to Cap-Subject

In this situation, an alien’s application will generally be subject to the cap. That said, the following scenario may allow an alien to take advantage of the portability rule. Let’s say an alien worked for a cap-subject employer, Company A, within the past six years before transferring to his current cap-exempt employer, Company B. At present, the alien wants to quit his job at Company B and start a new position at Company C, which, like Company A, is a cap-subject employer. Because the alien’s application was subject to the cap when he started work at Company A fewer than six years ago, he is eligible to start working at Company C prior to the approval of his transfer petition by USCIS. Like scenario #3, this situation results in an alien’s not having to be selected in the cap a second time.

If the above situation is for some reason not applicable, two additional possibilities may exist when a cap-exempt worker petitions to transfer to a cap-subject job.

  1. If there are still H-1B numbers available in a given fiscal year, an employee can transfer from a cap-exempt employer to a cap-subject employer using the portability rule. This scenario is unlikely, however, because visa numbers usually run out only a few days after filing begins. (In fact, the typical time by which H-1B visas run out after USCIS begins accepting petitions has been within a week over the past five years.)

  2. If the H-1B cap has already been met for a given fiscal year and a cap-exempt employee petitions to move to a cap-subject employer under the portability rule to start working for the new employer immediately, USCIS may accept the transfer. However, be advised that an argument could be made that the H-1B petition filed by the new employer is frivolous. Unsurprisingly, frivolous petitions are denied. USCIS has made it clear that it will approve an H-1B petition filed under these circumstances only if the beneficiary does not first cease to be employed by the cap-exempt petitioner.

(For more detailed information about this issue, please refer to our page on specific H-1B issues here.)

In each of the four situations above, the following caveat applies: if the transfer petition is approved prior to the start of the fiscal year in question, i.e. October 1, then the employee should cease working for the new employer at the time of the petition’s approval. The H-1B worker must wait until October 1 to begin working for the new employer.

It’s helpful to consider the admittedly abstract information above through a hypothetical case study. Consider the following:

Background

A foreign worker in H-1B status, Hugh is a researcher at the University of Houston, which is cap-exempt as an institution of higher education. Hugh has just found a new employment opportunity in the private sector with Hewitt Corp., a cap-subject employer. Hewitt Corp. wants to petition for an H-1B visa for Hugh, who was never subject to the quota when he applied for H-1B status to work at the University of Houston.

Will Hugh be able to port his H-1B status from the University of Houston to Hewitt Corp.?

It depends. If the H-1B quota has been met, Hugh cannot port his H-1B status to the new employer. If the quota has not been exhausted, then Hugh can use the portability rule to transfer and start working for Hewitt Corp. as soon as USCIS receives his transfer petition. Both Hugh and Hewitt Corp. should be aware, however, that if the transfer petition is approved before October 1, Hugh cannot begin working at Hewitt Corp. uninterrupted until October 1.

Practical Matters to Consider: Premium Processing

For some alien workers, using the H-1B portability rule to transfer and work for a new employer instantaneously may not always be the wisest choice. This is because the ability to port H-1B status is contingent on the associated transfer petition being approved. If the petition is denied, then the worker will lose H-1B status and therefore have to leave the country.

To avoid this consequence, the safest option is to altogether forget about using the H-1B portability rule, and instead retain your current H-1B status and apply for premium processing for a transfer petition. With premium processing, you will receive a decision on your transfer petition within 15 days and subsequently be able to transfer to the new employer.

If the employer or the H-1B holder can’t wait for 15 days—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—then the H-1B transfer petition should be prepared and submitted well ahead of time.

(For additional sources related to the above information, see the Immigration and Nationality Act §214(n)(2) and a relevant USCIS memo available here.)

For more detailed information on the H-1B category, including minimum requirements and USCIS policies, refer to the following links:

General H-1B Topics

H-1B Articles

 

Updated 05/08/2017