Professionals: H-1B Portability – Changing H-1B Employers

An H-1B worker may change employers. This generally requires the filing and approval of a new LCA and a new H-1B petition prior to commencing the new employment. However, if a person qualifies for “H-1B Portability”, employment with a new employer may commence upon the filing of the petition. There is no need to wait for approval of the new petition. The new H-1B employment may continue until the H-1B portability petition is adjudicated by the USCIS. If the H-1B portability petition is denied, employment with the new H-1B employer must immediately cease.

Eligibility Requirements for H-1B Portability

An H-1B worker is eligible for H-1B portability if the following criteria are met:

1. The H-1B worker has been lawfully admitted into the United States
2. Subsequent to the lawful admission, the H-1B worker has not been employed without authorization before filing the new H-1B petition
3. The new H-1B petition is not frivolous
4. The new H-1B petition is filed prior to the expiration date of the H-1B worker’s Form I-94

If one of the above four criteria is not satisfied, the H-1B worker is not eligible for H-1B portability. Under these circumstances, new H-1B employment may not commence upon the filing of the new H-1B petition.

Controversy Surrounding the Exact Moment When H-1B Portability Employment May Commence

The term “filed” has created controversy in the H-1B portability context. Until regulations clarify this issue, there are two schools of thought on exactly when an H-1B petition is filed under the H-1B portability provisions.

Some lawyers believe evidence of delivery to the USCIS of the H-1B portability petition is sufficient to be “filed” under H-1B portability. Examples of such include a FedEx delivery notification printout, a cancelled check, a certified mail receipt, etc. This position is further supported by the USCIS definition of filing as physically received by the USCIS.

Other lawyers believe that employment under the H-1B portability provisions may only commence upon the issuance and receipt of a Form I-797, Receipt Notice by the USCIS.

I-9 Employment Eligibility Issues for the Employer

The H-1B portability provisions are technically in direct conflict with the I-9 regulations. The 1986 Immigration Reform and Control Act (IRCA) created a duty for all employers in the United States to review and document the identity and employment eligibility of every new employee within the first three days of employment. That certification, generally known as the “paperwork requirements” of IRCA, must be documented on the Form I-9, Employment Verification Document. The Form I-9 does not allow evidence of work authorization for a person with a pending H-1B petition pursuant to H-1B Portability.

Since the H-1B portability provisions require the filing of a new petition with the USCIS before new employment in the H-1B portability context may commence, it would seem that evidence of filing would be acceptable for I-9 compliance. This presumption is consistent with the long-held belief that evidence of filing for extension of existing nonimmigrant work status satisfies the Form I-9 with respect to the grace period of continued employability when extensions are pending for the same employer under the same terms and conditions.