H-1B Portability Work Authorization Not Applicable to H1B Change of Status Petitions

Litwin & Smith has always advised that H1B portability provisions are not applicable in cases where the beneficiary had previously held H1B status, but is currently in another status (H4, F1 for example) and an H1B petition is filed on their behalf. The beneficiary of the petition may not start employment under the H1B petition filed until Approved.

The Office of Chief Counsel at USCIS has advised us the same, that similarly situated individuals are not employment authorized. … The H-1B Portability Rule does not apply to a nonimmigrant who was in H-1B status at one time, but who is currently in another valid status and for whom a non-frivolous I-129 Petition to obtain H-1B status has been filed. … USCIS has interpreted Section 105 of AC21 (INA section 214(n)) as allowing those who are currently in H-1B status, or who are in a "period of authorized stay" as a result of a pending H-1B extension petition(s), to begin new employment upon the filing by the prospective employer of a new (H-1B) petition on the alien's behalf.

USCIS guidance dated December 27, 2005, states that "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.'" That statement serves to clarify the earlier section specifically referring to an "H-1B alien" and should be read in the context of the particular example given: an alien who was in H-1B status and is now in an authorized period of stay based on a timely filed extension of H-1B status petition on the alien's behalf, and who then seeks to start working for a different H-1B employer upon that employer's filing of a petition. This interpretation is consistent with USCIS guidance to the public on its website (Nonimmigrant Services, H-1B FAQs, page 61) which states:

Changing employers - An H-1B worker can change employers, but first the new employer must file a labor condition application and then file a new H-1B petition. If the worker is already an H-1B, he or she can then begin the employment as described in the petition without waiting for USCIS to approve the petition. This is called a "portability provision," and it only applies to someone already in valid H-1B status.

Based on this guidance, E-Verify queries will continue to result in non-confirmations in similar cases.

The Verification & Documentation Committee believes that the USCIS interpretation underlying the E-Verify protocol is inconsistent with the clear language of the immigration statute and will work with the USCIS Liaison Committee to advocate for USCIS to revise its current position.

Despite the fact that the statute on its face appears to authorize employment upon the filing of the H-1B petition, in light of the government's current stance, practitioners filing an H-1B petition with a beneficiary who previously held H-1B status, but who now holds an intervening status, may want to consider advising the employer to expedite the petition with premium processing and wait for the approval before placing the employee on payroll.