When it comes to nonimmigrant visas, portability is a very useful characteristic of the H-1B visa classification. H-1B portability has been mentioned in several recent articles covering topics such as the 60-day grace period and concurrent employment. H-1B portability enables an employer to employ an H-1B nonimmigrant worker sooner than the employer would otherwise be able to utilize the services of that worker because portability authorizes an H-1B worker to begin work for a new employer as soon as the relevant H-1B petition is filed with USCIS.
Not all potential H-1B employees are eligible for portability, however. Portability only applies if the following criteria are satisfied:
– The candidate needs to already be in H-1B status. Therefore, persons for whom a change of status to H-1B is filed are not eligible for portability and must wait for USCIS to approve their H-1B petition before they receive H-1B work authorization (e.g. H-4 to H-1B).
– The H-1B petition needs to be filed while the candidate is in a period of authorized stay. Generally, this means that the candidate needs to have a valid and unexpired I-94 when the H-1B petition is filed.
– The candidate has not engaged in any unauthorized work since the last time they entered the United States. Even one day of unauthorized work will disqualify someone from H-1B portability.
H-1B portability greatly benefits both employers and H-1B employees. It provides H-1B employees the freedom to change employers rather seamlessly (or find new employment quickly after a layoff) and it allows employers to employ an H-1B employee as soon as the relevant H-1B petition is filed.
Because not every potential H-1B employee is eligible, it is important to understand the requirements surrounding portability. You should consult with an attorney if there is any uncertainty about someone’s H-1B portability eligibility.