• Enhanced H1B Portability
  • October 21, 2015 | Author: Alexander Joseph Segal
  • Law Firm: The Law Offices of Grinberg & Segal, PLLC - New York Office
  • The American Competitiveness in the Twenty First Century Act of 2000 (AC21) introduced the concept of “enhanced H1B portability.” Prior to the enactment into law of AC21, H1B Visas were portable from one employer to another. However, an H1B Visa-holder was not permitted to begin employment with the new Form I-129 petitioner until after the I-129 petition had been fully adjudicated. This changed with AC21, which introduced provisions allowing an H1B Visa-holder to begin work with a new employer upon the filing of the Form I-129, rather than having to wait until approval of the I-129.

    In order to be eligible to port H1B status from one employer to another, pursuant to INA § 214(n)(1)-(2) the portability applicant must:
    • have been lawfully admitted into the United States;
    • have had a non-frivolous petition for new employment filed on his or her behalf by an employer before the date of expiration of period of stay authorized by the Attorney General; and
    • subsequent to lawful admission, have not been employed without authorization in the United States before the filing of the I-129 petition.
    In short, the portability applicant must have been admitted in H1B status, have had a non-frivolous Form I-129 filed on his or her behalf while still on H1B status, and have not previously engaged in unauthorized employment while on H1B status. An H1B beneficiary may avail him or herself to portability if his or her H1B status was extended while awaiting final adjudication on an adjustment of status application to a work-based immigrant visa category.

    It is important to understand the filing that is required prior to commencing the new employment. It is not enough simply to have sent the Form I-129 to United States Citizenship and Immigration Services (USCIS); instead, USCIS must find the Form I-129 both non-frivolous and properly filed. The requirement that the petition be non-frivolous entails that it contains all of the necessary information and represents a genuine desire on the part of the petitioner to employ the applicant. The proper filing requirement is addressed in USCIS regulations found in 8 C.F.R. § 103.2(7)(i), which define a request for a benefit to be received on the date of receipt at the location designated for filing. When USCIS receives a Form I-129, it will send a Form I-797 receipt notice, which the petitioner and beneficiary may accept with full confidence as proof that the I-129 was received by USCIS. Note, however, that this does not mean that the Form I-129 will ultimately be approved, but rather that it was accepted such that the beneficiary may commence employment with the new employer. The petitioner may pay $1,000 and request “premium processing” of the H1B petition, which will allow for a copy of the I-797 receipt notice to be faxed or emailed by USCIS expeditiously.

    The H1B beneficiary may continue working for the new employer for the duration of his or her H1B status unless the underlying Form I-129 is denied. In the event that the underlying Form I-129 is denied, employment authorization ceases immediately. Multiple USCIS memoranda have explained that a portability beneficiary may have successive H1B portability petitions filed while one or more are pending, but each must be independently approvable. If the H1B Visa-holder’s status expires while petitions are still pending, and if the petitions are accompanied by applications to change or extend status, the denial of any of the petitions will lead to the denial of all pending petitions as well as any petitions to change or extend status filed after that time.1

    Enhanced H1B portability under AC21 is a broadly available tool to H1B beneficiaries who remain in H1B status. However, it is not a benefit without risks. It places the onus on the petitioner and beneficiary to determine if the beneficiary is actually eligible to exercise H1B portability. For this reason, both parties should consult with an experienced immigration attorney to ensure that the H1B beneficiary is eligible to exercise portability as well for general help in completing and filing a Form I-129 that will ultimately be approvable. With regard to ensuring that the Form I-129 is properly filed such that the beneficiary may commence employment under portability provisions, it is best, whenever possible, for the petitioner to wait until after he or she receives a hardcopy Form I-797 receipt notice. If the new employment begins but the Form I-129 was not received or was improperly filed, the new employment will be found to be unauthorized, with potential adverse consequences for both the employer and the beneficiary. If the new employment matter is urgent, the petitioner should pay the $1,000 fee for premium processing to minimize the risk that the Form I-129 is not received or is deemed improperly filed.

    While exercising portability, the beneficiary may travel and subsequently be admitted into the United States. However, if the portability beneficiary lacks proper documentation (proof of admissibility, unexpired passport and visa, proof of previous H1B status, and I-797 receipt notice or other proof of timely filing of Form I-129), the H1B beneficiary will be denied entry into the United States at a port of entry on account of inadmissibility.2 It is therefore critical for the portability beneficiary to ensure that he or she has the required documentation for reentry prior to departing the United States. In the event that the H1B beneficiary may have a ground of inadmissibility, he or she should consult with an experienced immigration attorney before departing the United States.