Suggestions for Employers Regarding New H-1B Regulations

The H-1B portability provision states that an individual in H-1B status is authorized to start working for a new employer upon filing of a new petition by the prospective employer on his or her behalf.

The alien:

1. must have been lawfully admitted into the U.S.
2. be the beneficiary of a petition for new employment filed before the expiration of his authorized period of stay
3. must have not, subsequent to lawful admission, been employed without authorization in the U.S. prior to the filing of the petition.

Additionally, the filing must not be frivolous.

In essence this provision allows for someone already in H-1B status to begin working for the new employer after the new employer files the H-1B petition on their behalf.

Although the provision authorizes employment, there is no instruction for completing the I-9. Hence, there is some risk involved. Employers may wait for INS or the Department of Labor to issue directives, but this is likely to take a while, especially with the holidays approaching.

If a company is willing to accept the risk, I advise the following documents be used to prove eligibility to begin employment and place the beneficiary on payroll:

1. the original INS filing receipt notice--be sure it was filed prior to the expiration of the beneficiary's authorized period of stay
2. original passport
3. evidence of lawful admission into the U.S. in the form of Form I-94
4. evidence of current H-1B status in the form of Form I-94 or Form I-797 H-1B approval notice
5. statement from the beneficiary that they have not been employed without authorization since their most recent entry into the U.S.

There is no guarantee that this will be sufficient for I-9 purposes, but I believe this is good faith compliance based on the language of the H-1B portability provision.

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Edward R. Litwin is a specialist in Immigration and Nationality Law, certified by the Board of Legal Specialization of the State Bar of California. He and his firm have helped thousands of people immigrate to the United States. He is available for consultation by appointment.