The American Competitiveness in the Twenty-First Century Act, (AC21) provides that a non-immigrant with H-1B non-immigrant status may begin working for a new H-1B employer as soon as the new employer files a “non frivolous” H-1B petition on the non-immigrant’s behalf.
A “non frivolous” petition is one that is factually or lawfully based.
- The non-immigrant must have been lawfully admitted into the United States;
- The non frivolous 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 his or her lawful admission to the United States and before the filing of the non frivolous petition.
Previously, aliens in this situation had to wait for USCIS approval before initiating a new H-1B employment status. These provisions apply to H-1B petitions filed “before, on, or after” the date of enactment (October 17, 2000), so all aliens who meet this definition can begin using the portability provisions.
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. Therefore, employers should follow the documentation procedures they currently use for an extension of this sort:
- Attach 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;
- Keep the receipt notice for the employer’s H-1B 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 US after the issuance of Form 797; and
- Evidence the employee has been performing services of an authorized H-1B employer, such as pay stubs and/or a signed and dated statement from the H-1B candidate stating the candidate has not been employed without authorization since his or her most recent entry into the US.
This type of employment lasts until the pending or new H-1B petition is approved by USCIS. Travel while the H-1B petition is pending is strongly discouraged.
Dependents of a working non-immigrant will remain in H-4 status as long as the principal non-immigrant is lawfully working pursuant to portability benefits. If someone on H-4 status is applying for H-1B, he or she cannot start working until the H-1B petition is approved.
If the employee on H-1B visas loses his or her job, there is no grace period. Such a person immediately goes out of status.
USCIS is proposing a rule, however, that would allow 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 to begin working for a new H-1B petitioning employer under the portability provisions. Please remember, however, currently there is NO such rule in place.
Contexts which may arise that question the lawful status of a non-immigrant under the portability provisions:
- Adjustment of status – when determining whether a non-immigrant has maintained lawful status or engaged in unauthorized employment;
- Request for extension of stay – when determining whether a non-immigrant has maintained lawful status;
- 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.
If you are interested in applying for H-1B status please contact our office to schedule a consultation with one of our attorneys today!