The American Competitiveness in the Twenty-First Century Act (AC21) provides that a non-immigrant who was previously issued an H-1B visa or provided H-1B non-immigrant status may begin working for a new H-1B employer as soon as that new employer files a “non frivolous” (one that has some basis in law or fact) H-1B petition on the non-immigrant’s behalf if:
- The non-immigrant was lawfully admitted into the United States;
- The non frivolous (one that has some basis in law or fact) petition for new employment was filed before the end of their period of authorized stay; and
- The non-immigrant has not been employed without authorization since their lawful admission to the United States and before the filing of the non frivolous petition.
H1 visa holders don’t have to await USCIS approval before commencing the new H-1B employment. However, many H1 visa holders would prefer to apply in premium processing (when available) and wait for the actual approval, just in case the new petition may get denied.
Current regulations authorize employment with the existing employer after a request for extension of H-1B status is filed. The alien in this case is employment authorized, but the I-9 form contains no provision for this authorization. Employers should follow the documentation procedures they currently use for an extension of this sort. Typically, this could involve attaching a copy of the receipt notice for the filed petition along with a copy of the alien’s I-94 to the I-9 kept on file. They should also keep the receipt notice for the employer’s H-1 petition, make a copy of employee’s passport, keep a copy of the previously approved H-1B’s notice of action I-797 and/or I-94, the latest I-94 if the candidate has traveled and re-entered the United States subsequently to the issuance of Form 797, and evidence the employee has been “performing services for an authorized H-1 employer,” such as pay stubs, a signed and dated statement from the H-1B candidate to the effect that the candidate has not been employed without authorization since the candidate’s most recent entry into the U.S.
This type of employment lasts until the pending or new H-1B petition is adjudicated by the USCIS. Because the employee traveling outside the United States may lose the ability to return to the new company’s employment until the H-1B petition is adjudicated, and if a visa is needed until the H-1B visa is obtained, travel during the pending H-1B petition is strongly discouraged. If approved, the I-9 needs to be updated. If denied, the employee must cease H-1B employment.
The status of a dependent of a principal non-immigrant who is working pursuant to portability benefits is derivative of and linked to the status of the principal non-immigrant. Therefore, dependents will remain in H-4 status if the principal non-immigrant is lawfully working pursuant to portability benefits.
If someone is on H-4 and is about to apply for H-1B, he/she can not start working immediately after the H1 application has been submitted. He/she will have to wait until the petition is approved, as this law only applies H-1B to H-1B transfer. Therefore, H-4 to H-1B conversions are not covered.
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Please note that if the employee on H-1B visas loses his/her job, there is no grace period. Such person immediately goes out of status. USCIS is proposing a rule, however, that would afford H-1B beneficiaries, who are no longer working for the initial H-1B employer, some reasonable period of time, such as 60 days, after leaving the initial H-1B employer to begin working for a new H-1B petitioning employer under the portability provisions. Remember, there is NO such rule.
There are four contexts in which the question of whether a non-immigrant has lawfully worked or maintained lawful status under the above portability provisions may arise:
- Adjustment of status, when determining whether a non-immigrant has maintained lawful status or engaged in unauthorized employment; or
- Request for extension of stay, when determining whether a non-immigrant has maintained lawful status; or
- Request for change of non-immigrant status, when determining whether a non-immigrant has continued to maintain status; or
- Removal proceedings because of failure to maintain non-immigrant status.
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