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Suggestions for Employers Regarding New H-1B Regulations

The H-1B portability provision has now been in place for several years. USCIS has refined the portability process over this time, as have the expert immigration attorneys at Litwin & Smith. With the knowledge and experience we’ve gained regarding H-1B portability, we are returning to update this article to provide employers with our current suggestions for hiring H-1B employees already in the U.S.

What Is the H-1B Portability Provision?

The H-1B portability provision is the rule that allows employees who have already entered the U.S. on active H-1B visas to begin working for a new employer. The provision states that an individual in H-1B status is authorized to start working for a new employer upon the filing of a new petition by the prospective employer on their behalf. This makes the visa “portable” by allowing a different employer to take over the sponsorship of the worker.

To be eligible to work for a new employer on an H-1B visa, the alien must:

  • Have been lawfully admitted into the U.S.
  • Be the beneficiary of a petition for new employment filed before the expiration of his authorized period of stay
  • Have not, after lawful admission, been employed without authorization in the U.S. before filing the petition.

Additionally, the filing must not be frivolous, meaning it cannot include material misrepresentations of the facts after the applicant has had sufficient opportunity to revise or explain those inaccuracies.

In essence, this provision allows someone already in H-1B status to begin working for the new employer after it files the H-1B petition on their behalf. However, this does not apply to H-1B change of status petitions.

Complying With the Portability Provision

Initially, the portability regulation authorized new employers to employ alien workers with H-1B visas. However, there was no initial instruction on completing the I-9 form, thus, there was some risk involved. In the time since, this issue has been resolved, and there is clear instruction for organizations interested in hiring foreign nationals in the country on H-1B visas.

First, the revised USCIS handbook explains how the I-9 must be completed. The H-1B visa holder must present the employer with their foreign passport and Form I-94/I-94A, also known as their Arrival-Departure Record, as issued by their previous employer. The employer uses this information to fill out the I-9 form, writes “AC21” and the date the new H-1B application was submitted under the “Additional Information” section of the document. The I-9 can then be submitted as normal.

In addition, USCIS has clarified that H-1B employees may begin to work for their new employer upon receiving proof of filing the I-797 form. While employers may choose to wait until they receive the official I-797 confirmation notice, they may also begin the worker’s employment sooner by sending the document through an overnight courier service that provides delivery confirmation. 

Finally, the implementation of the 60-day rule grants H-1B visa holders more leeway should they lose employment from their sponsoring employer through no fault of their own. This rule allows laid-off workers to remain in the U.S. on their visa for 60 days after their last day of work, allowing them to pursue new employment instead of immediately leaving the country. Businesses with approved LCAs on file can make the most of the portability provision and the 60-day rule to hire highly qualified employees without going through the H-1B visa lottery process.

These clarifications and updates significantly reduce the legal confusion that some employers faced when the portability regulation was first announced. However, they do not reduce the potential complexity of successfully porting an H-1B worker. Employers considering hiring workers and porting their H-1B visas must be cautious or risk harming their employees’ eligibility to work in the U.S.

Skilled Legal Assistance for Porting H-1B Employees Correctly

The most effective way to comply with the portability provision is to consult an experienced employment immigration attorney. At Litwin & Smith, our expert lawyers have in-depth knowledge of the H-1B application and porting process. We understand how to navigate the complex paperwork surrounding the employment of alien workers, and we use that knowledge to your advantage. Learn how our attorneys can assist you with complying with new H-1B regulations and portability requirements by scheduling your consultation today.

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