As we reviewed in the former section and discussed in detail, by taking advantage of the H-1B portability rule as stated in AC 21, an H-1B holder can change their employer and start to work for the new employer on the date when USCIS receives the H-1B transfer petition submitted by the new employer on behalf of the H-1B holder.
In order to qualify for the portability rule, an H-1B holder must meet the qualifications described in INA 214(n)(2):
(1) who has been lawfully admitted into the United States;
(2) on whose behalf an employer has filed non-frivolous petition for new employment before the date of expiration of the period of stay authorized by the Attorney General; and
(3) who, subsequent to such lawful admission, has not been employed without authorization in the United States before the filing of such petition.
Specifically, there are four possible situation under which an H-1B holder can take advantage of the H-1B portability rule, depending on whether the alien’s former and new employers are cap-subject or cap-exempt.
A cap-exempt worker porting to a new cap-exempt job.
In this case, because neither job was subject to the H-1B cap, the alien can file for the H-1B transfer at any time and begin working for the new employer when the H-1B transfer is filed. The H-1B quota and associated rush in April are irrelevant in such a case.
A cap-subject worker porting to a cap-exempt job.
In this case, since the new job is not subject to the H-1B cap, the alien can file for the H-1B transfer at any time and start working for the new employer when the H-1B transfer is filed. The H-1B quota and the associated rush in April are irrelevant.
A cap-subject worker porting to a cap-subject job.
In this situation, the alien has already taken an H-1B number; therefore, the new job does not require a new H-1B number. The alien can thus file for the H-1B transfer at any time and start working for the new employer when the H-1B transfer is filed.
A cap-exempt worker porting to a cap-subject job.
If an H-1B holder who worked for a cap-exempt employer and was never subject to the cap in the past six years wants to transfer to a cap-subject employer, two different situations can arise regarding the H-1B quota.
1) If there are still H-1B visa numbers available, by virtue of the portability rule, an employee can transfer from a cap-exempt employer to a cap-subject employer.
2) However, if the H-1B numerical limitation has already been met for the fiscal year, there might be chance that the lawsuit will be deemed frivolous thus denied. Therefore, we suggest such H-1B holders keep current employment and H-1B status until there are H-1B visa numbers available. For detail information about this issue, please refer to http://www.hooyou.com/news/news032712h1b.html
H-1B Portability: Practical Matters to Consider
Please note that using the H-1B portability rule to transfer and work for a new employer instantaneously may not always be the best choice. Specifically, using the H-1B portability rule always bears the risk that the transfer petition may be denied, and the beneficiary will have to face the awkwardness of falling out of status and having to depart the US.
To avoid such situations, the safest method is to avoid abusing the H-1B portability rule by remaining under current H-1B status and applying for premium processing service for a transfer petition. By using the premium processing service, an alien can get the result of their transfer petition within 15 days, and then switch to the new employer after approval.
If the employer or the H-1B holder cannot wait even these few weeks—for example if an H-1B holder is about to be laid off or if the new employer needs the alien worker to start working immediately—the H-1B transfer petition should be well prepared ahead of time.
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