A Tricky Problem: How Long Am I Authorized to Work When I Change H-1b Employers?

Many foreign nationals (“FN”) in H-1b status are aware of “H-1b Portability”, which allows a H-1b FN 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.

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. 

FNs 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. FNs who are transferring to a new H-1b employer).