When an alien works in the United States with a H1B work visa, he/she is only authorized to work for the company sponsoring the H1B visa. However, it is common for people to change jobs.You might wish to change jobs when you find another job that pays more, or when you do not fit in the current company’s culture, or when you are laid off. For the purpose of facilitating H1B workers to change employers, the US legislator created the H1B portability rule under immigration law.
The H1B portability rule is found under INA Section 214(n)(2), U.S.C. 1184(n), which is identical in Section 105 of The American Competitiveness in the Twenty-First Century Act of 2000 (AC21). It stipulates that a nonimmigrant alien who was previously issued an H1B visa or otherwise provided nonimmigrant H1B status is authorized to accept new employment upon the filing by the prospective employer of a new petition. Employment authorization shall continue for the alien until the new petition is adjudicated. If the new petition is denied, such authorization shall cease.
Under INA Section 214(n)(2) and Section 105 AC 21, to benefit from the H1B portability rule, the H1B alien shall be:
(A) lawfully admitted into the United States;
(B) 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
(C) who, subsequent to such lawful admission, has not been employed without authorization in the United States before the filing of such petition.
The (B) section generally requires the H1B alien to still be in the “Period of Stay” authorized by the Attorney General. Under the provision, even if a nonimmigrant does not maintain H1B status in the US and change to other nonimmigrant status, for example F-1, as long as his/her authorized period of stay has not expired, he/she can still benefit under H1B portability rule and work for a new employer once the new employer files a new H1B petition for him/her.
However, the interpretation may be changed with USCIS’s further clarification on the requirements of H1B portability. On November 18, 2016, USCIS issued a final rule titled Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers (“Final Rule”). The Final Rule has been ineffective since January 17, 2017. In the final rule, the DHS addressed that to be eligible for H-1B portability, the new H-1B petition “must have been filed while the foreign worker is in H-1B status or is in a period of authorized stay based on a timely filed H-1B extension petition.” At the same time, Code of Federal Regulations updated the (B) section of H1B portability requirement to “… a nonfrivolous H-1B petition for new employment has been filed, including a petition for new employment with the same employer, with a request to amend or extend the H-1B nonimmigrant's stay, before the H-1B nonimmigrant's period of stay authorized by the Secretary of Homeland Security expires”.
With these clarifications being effective, if a nonimmigrant has changed his/her status from H to another nonimmigrant status, he/she is not eligible for H-1B portability rule even he/she meets all the other requirements.
2. Grace Period
Under the final rule, the DHS also authorize a grace period of up to 60 days in the E–1, E–2, E–3, H–1B, H–1B1, L– 1, O-1 and TN classifications during the period of petition validity. See final 8 CFR 214.1(l)(2). If an H1B worker’s employment is terminated and his/her new employer file non-frivolous petition for new employment within 60-day grace period, he/she would be authorized to work for the new employer under H1B portability rule. If the nonimmigrant’s authorized stay expires before the 60-day grace period end date, then the new petition still has to be filed before I-94 expires.
3. Successive H1B Portability (Bridge Petition)
In addition to the common situation, the DHS further explained successive H1B portability (“Bridge Petitions”). An H-1B worker who has changed employment based on an H-1B portability petition may again change employment based on the filing of a new H-1B portability petition, even if the former H-1B portability petition remains pending. He/she also has eligibility for employment pursuant to a second or subsequent H-1B portability petition. If the request for an extension of stay was denied in a preceding H-1B portability petition and the alien beneficiary's Form I-94 authorizing admission in or extension of H-1B status has expired, a request for an extension of stay in any successive H-1B portability petition(s) must also be denied.
Example: A worked in Company A with H1B valid till September 1, 2020. He changed to another company, Company B, on March 1, 2020 and started to work with Company B after filing a new H1B. When the H1B transfer is pending, A changed job again to Company C. Company C petitioned him a new H1B petition. A can start to work for Company C per H1B portability rule immediately after C filed the H1B for him. However, if the second H1B filed by Company B is denied, the extension of stay request of Company C’s H1B petition would be denied.
4. Different Scenarios of H1B Portability Rule
As you may know, there are two kinds of H1B, cap-exempt and cap-subject. (Click here for more information about cap-exempt and cap-subject H1B.) When H1B portability rule applies to change between cap-exempt and cap-subject employers, things can be a little more complicated. Here we list four scenarios as below:
Neither the current nor the prospective job is subject to annual H-1B quota in this situation. Accordingly, an H-1B transfer petition can be filed within the alien’s H1B status or before his/her H1B grace period expires, and the alien is permitted to begin working for the new employer on the date USCIS receives the transfer petition.
In this case, because the new job is not subject to annual H1B quota, an H-1B transfer petition can be filed within the alien’s H1B status or before his/her H1B grace period expires, and the alien is permitted to begin working for the new employer on the date USCIS receives the transfer petition.
In this case, the alien’s previous H-1B application was already subject to the cap, and so her petition for the new cap-subject job will not be subject to the cap. An H-1B transfer petition can be filed within the alien’s H1B status or before his/her H1B grace period expires, and the alien is permitted to begin working for the new employer on the date USCIS receives the transfer petition.
In this situation, the alien usually needs to go through theH1B lottery and get a new H1B approval to work for the new employer. A new cap-subject H1B employment cannot begin prior to October 1 of the fiscal year for which his/her cap-subject employment was approved.
For example, B is employed by a cap-exempt university in H1B status under a petition valid through June 2020. A company files a cap-subject H1B petition for him on April 1, 2020, asking for a petition start date of October 1, 2020. Can B start to work for the company right after USCIS receives the new petition?
A USCIS’s letter clearly answered yes to the question. Even when H1B number will not be available until October 1, 2020, B can still begin employment on the date the new H1B petitioner files the cap-subject petition. If B ceased to be employed by a cap-exempt entity, he will be counted against the cap when he takes on cap-subject employment. But if he is employed by a cap-exempt entity and takes a concurrent H1B employment, even with a cap-subject employer, the petition filed by the cap-subject employer will not be counted against the cap. USCIS authorized the concurrent employment in this situation. But please note that if the new cap-subject H1B is approved, the job portability rule no longer applies, so B should stop working for the new employer.
Moreover, the following scenarios may allow an H1B cap-exempt holder to work for cap-subject employer even if the employments are not concurrent:
The H1B portability rule brings a lot of benefits to H1B nonimmigrants. Although it can be beneficial, it also cause confusion. If you don’t use the rule in the right way, you may engage in unauthorized employment. If you face any problems or uncertainty related to the H1B portability rule, we suggest you consult with an immigration lawyer for professional advice. At Zhang & Associates, our attorneys have abundant experience in dealing with problems related to the issue. Our experienced immigration attorneys are here to offer legal help and minimize any and all confusion or challenges. You are welcome to contact us at firstname.lastname@example.org or 713-771-8433.
Section105 of AC 21, page 3 of 15, https://www.govinfo.gov/content/pkg/PLAW-106publ313/pdf/PLAW-106publ313.pdf
INA Section 214(n)(2), page 177 of 471 https://www.govinfo.gov/content/pkg/COMPS-1376/pdf/COMPS-1376.pdf
8 CFR 214.2(h)(2)(i)(H)(1) page 40 of 144 https://www.govinfo.gov/content/pkg/CFR-2020-title8-vol1/pdf/CFR-2020-title8-vol1-sec214-2.pdf
DHS final rule: page 42 of 95 https://www.govinfo.gov/content/pkg/FR-2016-11-18/pdf/2016-27540.pdf
USCIS memo page 14 of 18 https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2008/ac21_30may08.pdf
CFR 240-day rule Page 4 of 8 https://www.govinfo.gov/content/pkg/CFR-2012-title8-vol1/pdf/CFR-2012-title8-vol1-sec274a-12.pdf
USCIS Letter on H-1B Portability from Cap Exempt to Cap Subject: www.aila.org/infonet/uscis-h-1b-portability-from-cap-exempt
For more detailed information on the H-1B category, including minimum requirements and USCIS policies, refer to the following links:
General H-1B Topics