Under the American Competitiveness in the Twenty-First Century Act of 2000 ("AC21"), an H-1B worker may change employers once the new employer's petition is pending with U.S. Citizenship and Immigration Services (USCIS). (A change in employers always requires filing a new visa petition).
Under previous law, the employee needed to wait for the new employer's petition to be approved before joining the new organization. This convenient new option under AC21 is called "H-1B portability." It applies to noncitizens who previously had an H-1B visa or were in the U.S. in H-1B status. There are three basic requirements to taking advantage of this option:
- The H-1B worker entered the U.S. lawfully.
- The new employer filed a "non-frivolous" H-1B petition while the prospective employee's current H-1B status is valid.
- The H-1B worker has not worked without authorization since the most recent, lawful entry.
For people in the United States, USCIS has interpreted H-1B portability as applicable only to those who currently have H-1B status, though the statute itself isn’t clear on this point. USCIS takes the position that portability does not apply to someone who is now in H-4 status but who previously had H-1B status, for example.
In this latter situation, the new employer first would need to obtain approval of its petition before the person would be authorized to start working. An example of how this could happen is if a husband and wife both are working in the U.S. in H-1B status. If the husband loses his job, he can change to H-4 status as his wife's dependent. If another employer then wants to hire him, USCIS takes the position that AC21 portability does not allow him a quick path through the process. Rather, this new employer needs to wait for USCIS to approve the H-1B petition before the husband can start working.
Another scenario is for someone who is outside the United States. If that person still has a valid H-1B visa from a current or prior H-1B employer, he or she can use that visa along with the Receipt Notice (USCIS Form I-797) for the new employer's H-1B petition in order to enter the U.S. and start working.
Employers taking advantage of H-1B portability face a quandary when completing the I-9 form (Employment Eligibility Verification Form), which must be filled out for every new employee, to record the employee's work authorization documents. In the normal H-1B situation, the employee's current I-94 Departure Record, endorsed for H-1B status with that employer, and an identification document would meet the I-9 requirement. The I-9 Handbook (Form M-274) instructs employers to use the employee's current I-94 Departure Record and foreign passport as a "List A" document and to write "AC21" and the date the new H-1B employer submitted its petition in the margin next to Section 2 of the I-9 form. If you keep photocopies of documents used in preparing all of your I-9 forms as part of your policy, it is a good idea to attach a copy of the receipt notice (USCIS Form I-797) to confirm that the H-1B petition is pending.
Finally, the Immigration and Nationality Act provides that the employer must start paying the H-1B employee's wages within 30 days of when the employee enters the U.S. under the H-1B visa. If the employee already is in the United States, the employer must start paying the wages within 60 days of when the H-1B petition and worker's H-1B status becomes effective. Therefore, in the H-1B portability context for someone in the U.S., you need to be prepared to bring the employee on board within 60 days of when the H-1B petition goes into effect.
For more information on H-1B visas, see the “H-1B Visas for Temporary Specialty Workers” page of Nolo’s website.