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Frequently Asked Questions about H-1B Portability

What Does Portability Mean?

The idea of "portability" is that it is easily carried or moved. For instance, a laptop or notebook computer is portable because it can be easily picked-up and carried or moved. In the H-1B Visa category, H-1B Visa status can be portable, meaning that it can be picked-up and moved from one employer to a new employer.

What Are the Requirements for H-1B Portability?

  • The foreign national must previously have been granted H-1B "status" (by the CIS) or been issued an H-1B Visa (by a U.S. Consulate abroad).
  • The foreign national must have been lawfully admitted to the U.S. (may not have entered the U.S. illegally).
  • The foreign national's proposed new employer must file an H-1B petition with the CIS before the foreign national's authorized stay in the U.S. expires (meaning before the date on the person's I-94 Card is reached).
  • The foreign national must not have worked illegally from the date of his/her entry into the U.S. and the date that the new employer files its H-1B petition with CIS.
What Benefit Does Portability Offer?

A foreign national who qualifies for H-1B Portability may begin to work for his/her new employer as soon as the new employer files an H-1B petition with the CIS.

Must the New H-1B Petition be Filed Within a Certain Period of Time?

The new employer's H-1B petition must be filed with the CIS before the foreign national's authorized stay expires (generally, before the expiration date on the foreign national's I-94 Card).

I Have Heard That Laid Off H-1B Workers Have Some Sort of Grace Period to Find a New Job. Is This True?

There is no grace period, despite what many people believe.

What is the H-1B Worker's Immigration Status After He or She is Laid Off or the Employment Ends?

An H-1B worker is "maintaining status" as long as he/she works for the H-1B employer that sponsored his/her H-1B Work Visa. If the H-1B worker quits or is laid off or if the employment ends, the H-1B worker becomes "out of status." It does not matter that the foreign national's I-94 Card has not yet expired; the H-1B worker is out of status as soon as the employer-employee relationship ends unless the foreign national has filed a request with the CIS to change his/her immigration status to a new one.

Does Being "out of status" Affect H-1B Portability?

No. However, the H-1B petition that a new employer may file often will ask the CIS to do two things:
  1. to classify the employee as eligible for the H-1B category. This part of the petition asks the CIS to agree that the job offered is a professional job and that the foreign national is a professional person. This part of the petition is not concerned with whether or not the foreign national is "out of status" or is "maintaining status;" and
  2. to extend the foreign national's H-1B status. This part of the petition asks the CIS to extend the date to which the foreign national is allowed to stay in the U.S. to work for the new employer. The CIS will extend the foreign national's status only if the foreign national is maintaining status and is not out of status.
What Happens if the CIS Approves #1 Above but Denies #2?

The Approved Petition (but denies Extension of Stay) means that the foreign national must leave the U.S. but may apply immediately for re-admission to the U.S. If the foreign national has an unexpired H-1B Visa in his/her passport (even if the Visa is annotated with the name of a former H-1B employer), the foreign national may use that Visa to travel back to the U.S. If the foreign national does not have an H-1B Visa in his/her passport, or if the Visa has expired, the foreign national must apply for a new H-1B Visa at a U.S. Consulate outside the U.S. before returning to the U.S.

Does the CIS Ever Overlook an Out-Of-Status Period?

In the past, the CIS sometimes would. However, the CIS has adopted more of a zero tolerance approach to situations in which the foreign national is no longer maintaining status, regardless of the reason causing the failure to maintain lawful status. The CIS still has the discretion to overlook the failure to maintain status and approve an extension of the foreign national's status, but these favorable exercises of discretion are rare.

 

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