Enhanced H1B Portability

 

Introduction

h1b visaEnhanced H1B portability, making it far easier than before for H1B Visa-holders to change employers, was introduced by the American Competitiveness in the Twenty First Century Act of 2000 (AC21 [PDF version]). AC21 did not introduce the concept of H1B portability, for it was possible for a nonimmigrant in H1B status to port his or her status to a new employer prior to the enactment of AC21. However, AC21 created a provision to allow an applicant for H1B portability to begin his or her new employment upon the new employer's filing of a new Form I-129, Petition for Nonimmigrant Worker. This enhanced portability makes it far easier for a person on H1B status to accept new employment. This article will explain the eligibility requirements for H1B portability, potential issues applicants and subsequent employers may encounter in the exercise of H1B portability, and guidance for successfully porting H1B status.

Eligibility for H1B Portability

The requirements for H1B portability are found in INA § 214(n)(1)-(2). The applicant must:

  • have been lawfully admitted into the United States;
  • have had a nonfrivolous 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 such petition.

In order for a petition to be found to be “nonfrivolous,” USCIS must find that the petition “is not without basis in law or fact” and represented the actual intent of the petitioner to employ the beneficiary and of the beneficiary to enter into employment for the petitioner.1 Additionally, USCIS regulations set forth in 8 C.F.R. § 245.10(a)(3) define “frivolous” as it pertains to nonimmigrant visa petitions as “patently without substance.”

An applicant will be considered to still be in the “period of stay authorized by the Attorney General” even beyond the expiration date of his or her I-94 form (from the original H1B employment) provided that the former employer filed for extension of status while the I-94 was still valid, and the extension petition remains valid at the time that the new employer files a new Form I-129.2

Furthermore, the applicant must have “previously [been] issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) [of the Immigration and Nationality Act (INA)].” This passage is important to understand because of its ambiguity. The plain text of the statute seems to indicate that an alien who was once in H1B status, but subsequently acquired a different nonimmigrant status at the time of seeking H1B portability, would be eligible to port H1B status. Eleanor Pelta and A. James Vazquez-Azpiri considered this to be the most likely correct interpretation of the statute in their book, “AILA's Focus on Immigration Practice Under AC21 [PDF version],” written in 2009: “If Congress had intended to circumscribe the availability of H-1B portability to persons holding H-1B status, it presumably would have said so.”3 However, United States Citizenship and Immigration Services (USCIS) weighed in on the issue in a 2011 question and answer session with AILA, stating unambiguously that “H-1B portability does not apply to an immigrant who is in valid status other than H-1B.”4 Thus, despite the seemingly facially plain-text meaning of the statute, unless contrary guidance is issued, persons who were once on H1B status but who subsequently changed to a different status are not be eligible for H1B portability.

What is “Enhanced” About H1b Portability under AC21?

INA § 214(n)(1) also contains the provision that allows an applicant seeking H1B portability to commence employment “upon the filing” of a new Form I-129 by the prospective employer. This is the major point that AC21 [PDF version] added to H1B portability. The statute provides that authorization for the new employment commences upon the filing of a petition for H1B portability and continues until the new petition is adjudicated. In the event that the new petition is denied, employment authorization “shall cease.” The Foreign Affairs Manual instructs Department of State officials at 9 FAM 41.53 N8.3-3(c) that an H1B beneficiary exercising portability is permitted to accept new employment while the new Form I-129 is being adjudicated, but that the new employment must cease in the event that the new H1B petition is denied.

Additional H1b portability Scenarios

A person in H1B status may file successive H1B portability petitions while an H1B portability petition is pending, provided that the applicant is otherwise eligible to exercise H1B portability.5 However, applicants should note that each successive portability petition must meet the requirements for H1B classification or extension of H1B status independently of all other petitions.6 If the H1B beneficiary's status expires while the petitions are 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 of the remaining petitions, and any subsequent petition to extend or change status after that time will be denied.7

An H1B employee of a cap-exempt employer may port to a cap-subject employer even if he or she seeks to do so when there are no H1B numbers available.8

An H1B beneficiary may return to his or her original employer after exercising portability provided that the original H1B petition remains valid [defined as being unexpired and un-revoked].9

Definition of “Filing”

Understanding what constitutes the “filing” a portability petition is crucial, because if a portability applicant begins employment with a new employer only to find that the portability petition was not received by USCIS or was rejected as improperly filed, he or she may be considered to have engaged in unauthorized employment.

In USCIS regulations found in 8 C.F.R. § 103.2(7)(i), we see that USCIS considers a request for an immigration benefit “received by USCIS” as of the date of receipt at the location designated [in this case being the proper USCIS field office] for filing.

Since an H1B beneficiary is only permitted to avail him or herself to enhanced portability once the new Form I-129 has been filed with USCIS, the only manner in which an H1B beneficiary and his or her new employer can be certain that the petition has been “filed” is upon receiving a receipt — the Form I-797, Notice of Action — which constitutes official confirmation from USCIS that the petition was received and deemed properly filed. However, because USCIS sends receipt notices by regular mail, an petitioner and beneficiary may find that the process takes too long due to financial circumstances or any number of other reasons. In that event, the petitioner may request “premium processing” of the H1B portability petition, wherein for a $1,000 fee, USCIS' premium processing unit will assess the petition expeditiously and send an I-797 by fax or email.10 While this is not nearly as safe as having an actual hard-copy receipt notice, so long as the premium processing unit's notification contains the correct information, the petitioner and beneficiary may be reasonably confident that the H1B petition was at the very least received and deemed properly filed.11 Additionally, petitioners may opt to rely on a receipt provided by the mail service that the application was delivered, but this is not recommended because it does not guarantee that USCIS received the petition or that USCIS will ultimately consider it to have been properly filed.12

Traveling Under H1B Portability

In order to be admitted into the United States while exercising H1B portability, an applicant must:

  • be otherwise admissible;
  • have a valid unexpired passport and visa, or be exempt from that requirement pursuant to 8 C.F.R. §§ 212.1, 1212.1;13
  • establish previous H1B status by presenting the Form I-94 or Form I-797; and
  • present the filing receipt Form I-797 for the new H1B petition, or any other acceptable evidence of timely filing.14

It is important to note that if the H1B portability beneficiary attempts to reenter the United States without the requisite documentation for admission, he or she will be deemed inadmissible at the port of entry and treated accordingly.15 Provided that the above requirements are met, however, an H1B portability beneficiary may be readmitted to the United Sates with his or her original H1B Visa so long as it is unexpired.16

Employment Verification and H1B Portability

Employers who are employing H1B beneficiaries under H1B portability are required to complete out a Form I-9, Employment Eligibility Verification. In order for the Form I-9 to be valid, the employer will require documentation that demonstrates that the H1B beneficiary is working pursuant to the H1B portability provisions.17 However, in the event that the employer is still waiting for an I-797 receipt notice, the employer may lack this documentation at the time he or she needs to fill out the Form I-9. Pelta and Vazquez-Azpiri recommend in “AILA's Focus on Immigration Practice Under AC21 [PDF version],” that employers prepare a memorandum or other statement that explains how the employee was hired pursuant to H1B portability provisions, and that the portability application was properly filed.18 They also recommend that, in lieu of having new employment authorization, the petitioner and beneficiary may use the expiration date from the original Form I-94 if the I-94 is being filled electronically and requires a specific value for that field.19 Pelta and Vazquez-Azpiri warn that employers who use E-Verify may run into H1B portability complications due to the fact that E-Verify will often flag the employee upon recognizing a discrepancy between the new employer and the employer on file.20 However, the Department of Homeland Security (DHS) is aware of this problem, and a petitioner should be able to expeditiously resolve the discrepancy by calling DHS's hotline and having providing them with the I-797 receipt number for the new I-129 petition.21

Advice

While H1B beneficiaries who maintain H1B status will generally be eligible to exercise H1B portability, there are potential pitfalls associated with the process. On one hand, allowing H1B beneficiaries to start work immediately upon the filing of a new Form I-129 on their behalf is a vast improvement over the previous system. However, availing oneself of enhanced portability requires that the H1B beneficiary and his or her new petitioner determine whether the H1B beneficiary is eligible to port. Thus, before attempting to exercise H1B portability, it is wise for an applicant to consult with an experienced immigration attorney in order to ensure that he or she meets all of the eligibility requirements for H1B portability. If possible, it is preferable to wait to start employment with a new employer until a hard-copy I-797 receipt notice is received. However, if that is not possible, given the potential problems that arise from the improper exercise of H1B portability, the petitioner should pay for premium processing of the Form I-129 rather than risk assuming that the petition will be received and deemed properly filed.

If an H1B portability beneficiary departs the United States and plans on reentering while still on H1B portability [as opposed to departing the United States in order to obtain a new H1B, other nonimmigrant, or immigrant visa], the H1B portability beneficiary must make sure that he or she has all documentation required for reentry. Failure by the beneficiary to possess and present the proper documents will likely lead to the beneficiary being deemed inadmissible to the United States at the port of entry.

______________________

  1. I. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014) 916, citing Memo, Pearson, Ex. Assoc. Comm. HQOPS 70/20 (Jan 29, 2001), reprinted in 78 No. 7 Interpreter Releases 365, 381-83 (Feb. 12, 2001)
  2. Kurzban 916, citing Memo, Yates, Assoc. Dir. Operations, USCIS, HQOPRD 70/6.2.8-P (May 12, 2005) published on AILA InfoNet at Doc. No. 05051810 (May 18, 2005)
  3. E. Pelta and J. Vazquez-Azpiri. ALIA's Focus on Immigration Practice Under AC21 [PDF version], ALIA Publications, (2009) 31, Added “Although USCIS has yet to confirm that it agrees with this view, no statement to date has been issued by the agency indicating that it considers such persons not to have employment authorization.”
  4. Questions and Answers USCIS American Immigration Lawyers Association (AILA) Meeting, April 7, 2011
  5. Kurzban 916, citing Memo, Yates, Assoc. Dir. Operations, USCIS, HQOPRD 70/6.2.8-P (May 12, 2005) at p.11, published on AILA InfoNet at Doc. No. 05051810 (May 18, 2005)
  6. Kurzban 916
  7. Id., citing Memo, Neufeld, Acting Assoc. Director, Domestic Operations, USCIS, Supplemental Guidance Relating to Processing, HQ 70/6.2, AD 08-06 (May 30, 2008), published on AILA InfoNet at Doc. No. 08060560
  8. Kurzban 917, citing Letter, Hernandez III, Chief, Business and Trade Services, USCIS (May 23, 2007), published on AILA InfoNet at Doc. No. 07052563
  9. Kurzban 917, citing Letter, Hernandez, Director, Business and Trade Services, HQ 70/6.2.8 (Apr. 24, 2002), reprinted in 79 No. 32 Interpreter Releases 1198-99, 1220-23 (Aug. 12, 2002)
  10. Pelta and Vazquez-Azpiri 34, citing INS Memorandum, W. Yates, “Field Guidance Regarding Eligibility for Section 245(i) Under the Legal Immigration Family Equity Act” (Apr. 26, 2001), published on AILA InfoNet at Doc. No. 01043001 (posted Apr. 30, 2001)
  11. Pelta and Vazquez-Azpiri 34
  12. Id.
  13. Listing various exemptions for Canadian citizens.
  14. For the list: Kurzban 917, citing Memo, Pearson, Ex. Assoc. Comm. HQOPS 70/20 (Jan. 29, 2001), ), reprinted in 78 No. 7 Interpreter Releases 365, 381-83 (Feb. 12, 2001)
  15. Id.
  16. Kurzban 917, citing Cable, DOS 0-10State-27960 (Feb. 14, 2001)
  17. Pelta and Vazquez-Azpiri 53
  18. Id.
  19. Id.
  20. Pelta and Vazquez-Azpiri 54
  21. Id.

Resources and Materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 916-17, Print. Treatises & Primers.

Pelta, Elanor, and Vazquez-Azpiri, A. James. “ALIA's Focus on Immigration Practice Under AC21 [PDF version]. Washington, D.C.: ALIA Publications, 2009. 31, 34, 53-54. Print. ALIA's Focus Ser.

USCIS, “Questions and Answers USCIS American Immigration Lawyers Association (AILA) Meeting,” (April 7, 2011), published on AILA InfoNet at Doc. No. 11040735 (Apr. 7, 2011)