Changing H-1B Employers with H-1B Portability

When changing H-1b employers, foreign nationals (“FN”) in H-1b status often face an interesting challenge in determining how long they are authorized to work in the United Stated. The answer lies in what’s commonly known as H-1b Portability.

What is H-1B Portability

H-1b Portability allows an H-1b foreign national to transfer to a new H-1b employer upon the filing of a H-1b petition by the new employer. The genesis of this rule is in a law called AC-21 (or “The American Competitiveness in the Twenty-First Century Act of 2000”) which granted FNs greater flexibility for transferring jobs in a couple of situations.

Requirements of H-1b Portability

H-1b portability, codified in INA 214(n), provides that a nonimmigrant who was previously issued an H-1b visa or provided H-1b nonimmigrant status may begin working for a new H-1b employer as soon as that new employer files a non-frivolous H-1b petition on the nonimmigrant’s behalf, if:

1. The nonimmigrant was lawfully admitted to the United States;
2. The nonfrivolous petition for new employment was filed before the end of their period of authorized stay; and
3. The nonimmigrant has not been employed without authorization since his or her lawful admission to the United States, and before the filing of the nonfrivolous petition.

In order to port, an alien must meet all the requirements of INA § 214(n), including the requirement that the new petition must be filed while the alien is in a “period of stay authorized by the Attorney General.”

Importantly, 214(n) states that under this section, employment authorization shall continue for such alien until the new petition is adjudicated. 

Confusion with the 240 Day Rule

Foreign nationals and employers often confuse the above provision with the “240 day rule.” This rule automatically extends employment authorization for FNs for 240 days who file extensions of status with the same employer before their current status expires.

In contrast, AC-21 has no 240 day temporal limitation for H-1b transfers (i.e. foreign nationals who are transferring to a new H-1b employer).

Contact Shaftel Law’s Denver Immigration Firm

Shaftel Law specializes in employment immigration, and we have vast expertise handling cases that involve H-1b status and changing H-1b employers using H-1b portability. Contact us online or by calling (303) 872-6985 to discuss questions you might have either as an H-1b visa holder or employer. We are happy to help.