H-1B Portability: Changing to a new H-1B employer

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.


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