H-1B Job
Portability

Overview of H-1B Portability

Portability is a provision under the H-1B nonimmigrant visa category that offers both H-1B workers and their U.S. employers greater mobility and flexibility. It was established by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21).

H-1B portability allows certain H-1B foreign nationals (FNs) who are inside the U.S. to transfer (“port”) to new employment as soon as USCIS receives a new non-frivolous H-1B petition on the FN’s behalf. The most common scenario for this is an H-1B worker transferring from Employer A to Employer B. However, portability also applies where the FN’s current employer requests new employment or a change/amendment of employment terms for the FN with the same employer.

Who Qualifies for H-1B Portability?

Even though the portability regulations allow you to start new H-1B employment “upon the filing” of a new H-1B petition, you should not rely on a mail or courier service’s delivery confirmation and instead wait for the official receipt notice from USCIS before starting to work for your new employer.

Also, ideally, the new petition should be filed before you leave your current employer, so that you do not have to rely on the discretionary 60-day grace period.

Based on previous guidance from USCIS, an H-1B portability petition on your behalf that requests an extension, a change of employer, or a change in employment terms should not be subject to the $100,000 H-1B fee if:

• You are inside the U.S. and are eligible for the requested extension or change.

However, your petition will be subject to the $100,000 H-1B fee if:

• It requests consular notification, port of entry notification, or pre-flight inspection for you, or if
• You are not eligible for the requested extension of status, change of employer, or change of employment terms.

Scenario 1: Your original, previously approved H-1B petition and visa are still valid, the new H-1B petition is still pending, and you are already working for the new employer.

You may travel in this scenario, as long as the new petition requests an approvable change of employer with an amendment or extension of stay. Your petition will not be subject to the $100,000 fee.

For readmission into the U.S., you should present the following documents:

• Valid, unexpired passport.
• Valid, unexpired H-1B visa (unless you are visa-exempt). This can be a previously issued visa endorsed with the name of your original H-1B employer; it will stay valid up to its expiration date.
• Previous I-797 Approval Notice with the original H-1B petition’s validity dates and your most recent I-94.
• I-797 Receipt Notice showing that your new H-1B employer’s petition was timely filed.
• Recent pay stubs from your new employer.

Scenario 2: Your original, previously approved H-1B petition and visa are no longer valid, the new H-1B portability petition is still pending, and you are already working for the new employer.

Scenario 3: Your original H-1B visa is still valid, and the new H-1B petition has been approved.

You are free to travel and won’t trigger the $100,000 fee, but only if the portability petition was (1) filed as an amendment or an extension of stay, and (2) approved before you leave the U.S. for travel. Otherwise, the $100,000 fee will apply.

For readmission into the U.S., you will need:

• Valid, unexpired passport.
• Valid, unexpired visa (unless visa-exempt), which can be the previously issued visa endorsed with the name of your original H-1B employer. There is no need to apply for a new H-1B visa if your previously issued visa is still valid.
• New I-797 Approval Notice with the new H-1B petition validity dates.
• Two recent pay stubs from your new employer.

If the new H-1B petition is denied, you are no longer covered by the portability provision and must immediately stop working for the new employer. If the original H-1B petition is still valid and the original employer has no objections, you may return to your original H-1B employment.

The H-1B portability provision also covers your dependents, who will maintain H-4 status if you are lawfully working under the portability provision.

H-1B portability works best from one cap-subject employer to another, or from a cap-subject employer to one that is cap-exempt. Since you will have already been counted towards the cap, the new H-1B petition can be filed at any time of the year.

It gets more complicated when you move from cap-exempt to cap-subject employment, since that new petition will now be subject to the cap and to all related process and timing requirements (i.e., electronic registration, lottery selection, start date no earlier than October 1 of the applicable fiscal year, no filing more than six months before the requested start date). One potential workaround for this is to request approval for concurrent employment in a cap-subject position with Employer B while maintaining employment in the cap-exempt position with Employer A.

You can have one or more portability petitions filed on your behalf, either simultaneously or successively, as long as each petition separately meets all the requirements for approval. This may be useful if you are weighing multiple H-1B job offers or want to have one or more fallback options.

However, once your initial H-1B I-94 expires while the portability petition(s) are pending, the denial of any filing in the string of portability petitions will make the “bridge” collapse, and you will no longer be in a period of authorized stay.

For this reason, it is best to file portability petitions when you still have sufficient time left on your previously approved H-1B petition and to file via government premium processing.