Working Immediately Upon the Filing of an H1B Petition

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In the many years since the AC21 legislation was signed into law by then-President Clinton, neither the INS nor its successor agency, the CIS, has found the time to lawfully promulgate regulations. Instead, they have issued non-legally binding "policy memos." While these memos are not legally binding, they nonetheless provide some idea of the thinking behind the agency's implementation of the AC21 statute. 

In their June 19, 2001 policy memorandum, the CIS provided the following guidance:

D. AC21 §105 -- Visa portability

The AC21 §105 provides that a nonimmigrant who was previously issued an H-1B visa or provided H-1B nonimmigrant status may begin working for a new H-1B employer as soon as that new employer files a "nonfrivolous" H-1B petition on the nonimmigrant's behalf, if:

(a) the nonimmigrant was lawfully admitted to the United States;

(b) the nonfrivolous petition for new employment was filed before the end of their period of authorized stay; and

(c) the nonimmigrant has not been employed without authorization since his lawful admission to the United States, and before the filing of the nonfrivolous petition.

The status of a dependent of a principal nonimmigrant who is working pursuant to portability benefits is derivative of and linked to the status of the principal nonimmigrant. Therefore, dependents will remain in H-4 status if the principal nonimmigrant is lawfully working pursuant to portability benefits.

There are four contexts in which the question of whether a nonimmigrant has lawfully worked or maintained lawful status under the §105 portability provisions may arise:

(a) Adjustment of status, when determining whether a nonimmigrant has maintained lawful status or engaged in unauthorized employment; or

(b) Request for extension of stay, when determining whether a nonimmigrant has maintained lawful status; or

(c) Request for change of nonimmigrant status, when determining whether a nonimmigrant has continued to maintain" status; or

(d) Removal proceedings under INA §237(a)(I)(C)(i), failure to maintain nonimmigrant status.

Subsequently, in their December 27, 2005 policy memorandum, the CIS added the following guidance: 

Question 1. Can an H-1B temporary worker “port” under §105 of AC21 (INA § 214(n)) from one employer to another even after the alien’s I-94 or last approved petition has expired as long as he or she is still in a “period of stay authorized by the Attorney General”?

Answer: Yes. Under certain circumstances, an H-1B alien may still be able to port to another H-1B employer even after the alien’s I-94 or last approved petition has expired. In order to port, however, such alien must meet all the requirements of INA § 214(n), including the requirement that the new petition be filed while the alien is in a “period of stay authorized by the Attorney General.” USCIS has previously determined and issued guidance explaining what constitutes a “period of stay authorized by the Attorney General.” One example would be:

Alien is in H-1B status. Employer A timely files a non-frivolous extension of the alien’s H-1B status. Alien’s original petition, approved for Employer A, expires during the pendency of the extension. Alien is then in a “period of stay as authorized by the Attorney General” while Employer A’s extension is pending. Employer B then files new petition and alien wants to port to Employer B. Under INA § 214(n), the alien should be permitted to port because he or she is in a “period of stay as authorized by the Attorney General.”

In other words, porting under INA §214 does not require that the alien currently be in H-1B status as long as he or she is in a “period of stay authorized by the Attorney General.”

Question 2. Can there be successive H-1B portability petitions filed for an alien while the previous H-1B petitions remain pending (i.e. creating a “bridge” of H-1B petitions)?

Answer: Yes. However, to be approved every H-1B portability petition must separately meet the requirements for H-1B classification and for an extension of stay.

Question 3. If successive H-1B portability petitions can be filed, what happens if an alien’s nonimmigrant status expires while the H-1B portability petitions are pending and a petition in the “bridge” is denied?

Answer: As stated above, to be approved every H-1B portability petition must separately meet the requirements for H-1B classification and for an extension of stay. In the event the alien’s nonimmigrant status has expired while the petitions are pending, the denial of any filing in the string of extension of stay and/or change of status filings undercuts the “bridge” that “carried” any petition filed after the expiration of any approved status which will result in the denial of the successive requests to extend or change status.