Updated With Nov. 18, 2016 Rules: H1B Portability

H1B Portability

 

Introduction

The American Competitiveness in the Twenty-First Century Act of 2000 (AC21) added to the Immigration and Nationality Act (INA) provisions for what is called “H1B portability.” H1B portability allows certain individuals in the United States on H1B status to change H1B employers. The United States Citizenship and Immigration Services (USCIS) created agency guidance over the years to adjudicate H1B portability petitions. On January 17, 2017, new regulations took effect which finally codified USCIS practices regarding many AC21 provisions, including H1B portability [see article].

In this article, we will examine the statutes, agency guidance, and new regulations for an up-to-date look at H1B portability. Please see our website's categories on AC21 [see category] and on the H1B nonimmigrant work visa category [see category] to learn more about related issues. If you are instead looking for I-140 petition portability, please see our full article on that subject, also updated to include information from the most up-to-date regulations [see article].

H1B Portability Statute

The H1B portability statute is found in section 214(n) of the Immigration and Nationality Act (INA). The identical provision is found in section 105 of AC21.

Under section 214(n)(2) of the INA, H1B portability may apply to an alien described by the following three points:

A. Has been lawfully admitted into the United States under section 101(a)(15)(H)(i)(b) of the INA (in H1B status);
B. Has had an employer file a non-frivolous petition for new H1B employment on his or her behalf prior to the expiration of the period of stay authorized by the Secretary of Homeland Security;1 and
C. Who, subsequent to his or her previous lawful admission, has not been employed without authorization prior to the filing of the new non-frivolous H1B petition.

Section 214(b)(1) discusses how H1B portability works in more detail. Under section 214(b)(1), an alien who was admitted in H1B status may accept new employment upon the filing of a new H1B petition by a prospective employer. The emphasis on filing is key, meaning that employment may begin when the non-frivolous petition is properly filed instead of the alien having to wait until the petition is approved. The statute states that the employment authorization will continue until the new petition is adjudicated. If the petition is denied, the employment authorization ceases. It is important to note that the H1B worker must otherwise uphold all of the requirements for maintaining H1B status while exercising H1B portability.

Certain aspects of the statute were unclear and had to be interpreted by the DHS over the years. In the next section, we will examine in detail how the DHS has interpreted the H1B portability statutes, as now codified in the new statute, regulations, and rules.

New AC21 Rule

Despite being in place for well over a decade, H1B had no implementing regulations in effect until January 17, 2017. As we noted in the introduction, the H1B portability regulations were codified in the rule titled “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers” [81 FR 82398] [see article]. In addition to codifying long-standing agency practices that had been documented through various memoranda — some of which we will explore in the next section — the new final rule clarified certain issues regarding H1B portability. Here, we will discuss the new regulations and guidance found in the new final rule.

In the overview of the Final Rule, published at 81 FR 82400, the Department of Homeland Security (DHS) explained that the rule would address the following two points regarding H1B portability:

1. When an H1B employee begins employment with a new H1B employer upon the filing of a non-frivolous petition for new H1B employment; and
2. When H1B employers may file successive H1B portability petitions, often referred to as “bridge petitions.”

General Portability Rules

The new final rule generally codified existing DHS practice regarding H1B portability adjudications. It made clear that, in order to exercise H1B portability, the portability petition “must have been filed while the foreign worker is in [H1B] status or is in a period of authorized stay based on a timely filed [H1B] extension petition.” See 81 FR 82439.

The applicable regulations are found in 8 C.F.R. 214.2(h)(2)(i)(H). We will discuss in this section all regulations with the exception of those involving bridge petitions.

Under 8 C.F.R. 214.2(h)(2)(i)(H), an eligible H1B worker is eligible to start concurrent or new employment upon the filing of a non-frivolous H1B petition on his or her behalf by a new employer, or as of the requested H1B employment start date, whichever is later.

8 C.F.R. 214.2(h)(2)(i)(H)(1) defines an “eligible H1B nonimmigrant” for portability purposes. This regulation largely mirrors section 214(n)(2) of the INA.

First, 8 C.F.R. 214.2(h)(2)(i)(H)(1)(i) requires that the alien have been admitted into the United States in or otherwise provided with H1B nonimmigrant status.

Second, 8 C.F.R. 214.2(h)(2)(i)(H)(1)(ii) requires that a non-frivolous H1B petition for new employment have been filed on the H1B worker's behalf. This includes a petition for new employment with the same employer. The new H1B petition, or H1B portability petition, must be filed in conjunction with a request to amend or extend the H1B worker's stay. The H1B portability petition must be filed before the expiration of the H1B nonimmigrant's current period of stay authorized by the Secretary of Homeland Security. Please see the relevant section of this article for a discussion of the period of stay authorized by the Secretary of Homeland Security in the H1B portability context [see section].

Third, 8 C.F.R. 214.2(h)(2)(i)(H)(1)(iii) prohibits an H1B nonimmigrant from exercising H1B probability if he or she was employed without authorization in the United States during the period from the time of his or her last admission through the filing of the petition for new employment.

Under 8 C.F.R. 214.2(h)(2)(i)(H)(2), employment authorization under the H1B portability provision ceases upon final adjudication of the H1B portability petition(s) (if the petitions are approved, the H1B employment may continue until H1B status ceases).

Rules for Bridge Petitions

Perhaps the most noteworthy aspect of the final rule is its addressing of successive H1B portability petitions. The rule made clear that an H1B worker who changed employment based on an H1B portability petition filed on his or her behalf may subsequently change employment based on the filing of a new H1B portability petition on his or her behalf. This is because an H1B worker who is working based on a pending H1B portability petition is considered to be in a period of stay authorized by the Secretary of Homeland Security. The second change of employment may occur even while the first H1B portability petition remains pending. However, the DHS explained that whether the individual would remain employment authorized would depend on the following:

1. Whether prior H1B portability petitions have been approved or remain pending; and
2. Whether the H1B worker's Form I-94, issued upon admission or extended with an approved H1B petition, has expired.

This leads to a key point: “If the request for an extension of stay was denied in a preceding H1B portability petition and the individual's Form I-94 authorizing admission in or extension of [H1B] status has expired, a request for an extension of stay in any successive [H1B] portability petitions must also be denied.” In short, each successive H1B portability petition must ultimately be found to meet the H1B requirements and the requirements for an extension of stay in order for the H1B worker's employment to ultimately be approved.

At 82 FR 82441, the DHS carefully defined a bridge petition, providing clarification to the above rules. The DHS made clear that it “does not consider an [H1B] portability petition that is filed before the validity period expires to constitute a 'bridge petition'; rather, a bridge petition is one filed after expiration of the Form I-94, but during the time in which the individual was in a period of authorized stay based on a preceding timely filed extension petition.” Accordingly, in situations where a successive petition is filed prior to the expiration of the Form I-94, it need “not be denied simply because of a denial or withdrawal of a preceding portability petition” (however, note that it could be denied on other grounds).

The new regulations for bridge petitions are found in 8 C.F.R. 214.2(h)(2)(i)(H)(3). It is important to note that understanding these regulations requires understanding 8 C.F.R. 214.2(h)(2)(i)(H)(1)-(2), which we discussed in the previous section.

8 C.F.R. 214.2(h)(2)(i)(H)(3)(i) makes clear that an alien maintaining employment authorization based on the H1B portability provisions will be considered to be in a period of stay authorized by the Secretary of Homeland Security even if his or her status as indicated on the Form I-94 has expired. Accordingly, because an H1B worker in this circumstance is considered to be in a period of stay authorized by the Secretary of Homeland Security, he or she is eligible to begin working in a subsequent employment position based on a successive H1B portability petition upon the filing of such petition or the requested employment start date, whichever is later. The H1B worker may engage in the new employment even while the previous H1B portability petition remains pending. This applies even where the validity period of an H1B petition filed on the alien's behalf expires during this period.

However, under 8 C.F.R. 214.2(h)(2)(i)(H)(3)(ii), a request to amend the H1B petition or for an extension of H1B stay in any successive H1B portability petition cannot be approved if a request to amend the petition or for an extension of stay in any preceding H1B portability petition in the succession is or has been denied. The only exception to this rule is if the previously denied H1B petition was denied during the H1B beneficiary's previously approved period of H1B status. A denied H1B petition outside of that period creates a gap in employment authorization, necessitating a denial of the subsequent petition(s).

8 C.F.R. 214.2(h)(2)(i)(H)(3)(iii) however makes clear that the denial of a successive H1B portability petition, in and of itself, does not prevent the H1B beneficiary from continuing or resuming working in accord with the terms of a previously approved H1B petition filed on his or her behalf, provided that the petition approval remains valid and the beneficiary maintained H1B status or was in a period of authorized stay, and provided that the beneficiary was not employed in the United States without authorization.

International Travel and H1B Portability (With Emphasis on Bridge Petitions)

At 82 FR 82440-82441, the DHS addressed international travel for individuals who are the beneficiaries of successive H1B portability petitions. The DHS acknowledged the concerns of commenters on this issue. It explained that an H1B worker who travels abroad and seeks to return to the United States in this circumstance should provide to the inspecting officer a copy of the previously issued Form I-94 or Form I-797 approval notice for the original H1B petition along with a Form I-797 receipt notice that demonstrates that the new H1B petition requesting an amendment or extension of stay that was timely filed on his or her behalf. The inspecting officer will make an admissibility determination based on this evidence. In general, an H1B worker exercising H1B portability with one or more pending portability petitions should consult with an experienced immigration attorney before traveling abroad.

The DHS explained that it was restating longstanding policy first set forth in a USCIS Memorandum by Michael A. Pearson titled “”Initial Guidance for Processing H-1B Petitions as Affected by the `American Competitiveness in the Twenty-First Century Act' (Public Law 106-313) and Related Legislation (Public Law 106-311) and (Public Law 106-396)” (June 19, 2001) [PDF version].

Portability from Cap-Exempt to Cap-Subject Employment

At 82 FR 82441, the DHS explained that an H1B worker's cap-subject employment cannot begin prior to October 1 of the fiscal year for which his or her cap-subject employment was approved. Accordingly, while a cap-exempt H1B worker may port to cap-subject employment, he or she would not be able to begin working until October 1 of the fiscal year for which the petition was approved. This is the one case where the H1B portability applicant would not be able to commence the new H1B employment upon the filing of the non-frivolous portability petition.

In general, due to the very short period in which H1B numbers for the next fiscal year are available, it will be difficult, if not impossible in some cases, for H1B workers who have never been counted against the H1B cap to port to cap-subject employment. An individual in this situation should consult with an experienced immigration attorney for guidance on his or her specific situation before endeavoring to begin new employment.

Limits of Scope of H1B Portability

The rule discusses an interesting comment at 82 FR 82439-82440. The language of the statute is ambiguous as to whether H1B portability applies exclusively to those individuals who are either maintaining H1B status or who are in an authorized period of stay based on a timely filed H1B petition. Some commenters to the final rule asked that it also extend H1B portability to individuals who were previously issued an H1B visa or who were otherwise provided with H1B status. However, in accord with its long-standing interpretation of the H1B portability statute, the DHS disagreed with the commenters' suggestion and did not adopt it in the final rule. H1B portability continues to be available only to individuals maintaining H1B status or in an authorized period of stay based on a timely filed H1B petition.

The DHS explained that this view of the limited scope of H1B portability was set forth in a Memorandum by Michael Ayets titled “Interim guidance for processing I-140 employment-based immigrant petitions and I-485 and H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act (AC21) (Public Law 106-313)” (May 12, 2005, revised Dec. 27, 2005) [PDF version].

Adding H1B Portability Beneficiaries to Class of H Immigrations Authorized for Employment With Specific Employer Incident to Status

The new 8 C.F.R. 274a.12(b)(9) adds H1B workers exercising H1B probability to the class of aliens authorized for employment incident to H status with a specific employer. Like the other new H1B portability provisions, this codifies existing USCIS practice in the regulations.

Relationship to 10- and 60-Day Grace Periods

The new final rule also implemented a 60-day nonimmigrant grace period for individuals maintaining status in certain nonimmigrant work visa classifications, including H1B. The final rule also formally implemented a 10-day grace period after the end of the validity period of an H1B petition. At 81 FR 82436, the final rule made clear that an H1B worker on a 10 or 60-day grace period may avail him or herself to H1B portability if otherwise eligible. For a full discussion of 10-day and 60-day nonimmigrant grace periods, please see the full article we wrote discussing the subject [see article].

Period of Stay Authorized by the Secretary of Homeland Security

For a discussion of a “period of stay authorized by the Secretary [of Homeland Security],” the final rule cites to the USCIS Memorandum from Donald Neufeld titled “Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act” (May 6, 2009) [PDF version]. Before continuing, please note that we discuss the Neufeld 2009 Memorandum in detail in the context of the 3 and 10-year bars of inadmissibility for unlawful presence elsewhere on site [see article].

In section a(3)(B) of the Memorandum, “period of stay authorized” is described as generally being that period noted on the alien's Form I-94. Aliens who are inspected and paroled are also considered to be in a period of authorized stay provided that they abide with the terms of the parole.

However, in a key point for H1B portability bridge petitions, the Memorandum later noted that a period of stay authorized by the Secretary of Homeland Security need not necessarily be a period where the alien is in authorized status. Pertinently, the Memorandum stated:

An alien whose authorized status expires while a timely filed request for [Extension of Status] or [Change of Status] is pending, is in a period of stay authorized by the Secretary of Homeland Security.

The Memorandum carefully distinguished “period of stay authorized by the Secretary of Homeland Security” from a period in which the alien is in authorized status. For example, it noted that in the bridge petition context, an alien could accrue unlawful presence if he or she subsequently files additional untimely requests for extension of status or change of status after an initial application is denied (if he or she is outside of the period of authorized stay on the Form I-94).

However, the DHS's application of “period of stay authorized by the Secretary of Homeland Security” to the H1B portability context is what allows for the filing of bridge petitions under its new final rule and previous agency guidance.

H4 Derivatives Retain H4 Status During Pendency of H1B Portability Petition

A legacy Immigration and Naturalization Service (INS) Memorandum issued in 2001 by John D. Cronin titled “Initial Guidance for Processing H-1B Petitions as Affected by the “American Competitiveness in the Twenty First Century Act” and Related Legislation” (June 19, 2001) set forth the current DHS stance on H4 derivatives of H1B workers with pending H1B portability requests.

The Memorandum explained that the status of an H4 dependent is dependent on the status of the H1B principal. For this reason, the Memorandum stated that “dependents will remain in [H4] status if the principal nonimmigrant is lawfully working pursuant to portability benefits.”

This legacy guidance from 2001 remains in effect today.

General Guidance on Exercising H1B Portability

Under 8 C.F.R. 103.2(7)(i), a petition is considered “filed” when it is received by the USCIS. Thus, a petitioner can only be assured that a petition was filed upon receiving a Form I-797, Notice of Action, from the USCIS. One option for H1B portability petitioners is to seek what is called “premium processing” [see article].

Petitioners and beneficiaries should work with an experienced immigration attorney to mitigate the risk of exercising H1B portability improperly.

Conclusion

H1B portability is a valuable tool for both U.S. employers and H1B beneficiaries. For employers, it provides an opportunity to employ skilled foreign workers who they may have missed out on in the H1B filing season. For H1B workers, portability has two benefits. First, when properly used, it allows H1B workers to avail themselves of new employment opportunities while in the United States on H1B status. Secondly, in the event that H1B employment ceases, it allows an H1B worker to scramble to find new work and remain in the United States for the duration of his or her H1B status.

Before exercising H1B portability, petitioners and employers should consult with an experienced immigration attorney for guidance. An attorney may assess the situation, determine if it warrants a portability petition, and assist both petitioners and beneficiaries in properly following all of the H1B portability requirements. This consultation is especially important for complicated cases involving cap-exempt employment or bridge petitions. Furthermore, H1B workers should consult with an attorney immediately upon the cessation of H1B employment and before traveling while their status depends on pending H1B portability petition(s).

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  1. The statute states “Attorney General.” However, under current law, it is the Secretary of Homeland Security.
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