H-1B Portability at the Port of Entry for H-1B Employment With a New Employer

This article addresses the situation of an H-1B worker who has been terminated by their employer prior to the expiration of the H-1B validity period. The H-1B worker remained in the U.S. believing that since the I-94 has not expired, their status has not expired. The H-1B worker has been offered a position at another company but doesn’t know what their status has been since being terminated. Fortunately, USCIS has issued guidance which appears to resolve this situation. This article outlines that guidance.

The Rule: an H-1B applicant for admission who is no longer working for the original H-1B petitioner is admissible at a POE, so long as certain conditions are met.

AC21’s visa portability provisions allow a nonimmigrant alien previously issued an H-1B visa or otherwise accorded H-1B status to begin working for a new H-IB employer upon the filing of a “nonfrivolous” petition by the new employer, as long as the nonimmigrant is in lawful status at the time of the filing and has not engaged in unauthorized employment since his or her last lawful admission. A “nonfrivolous” petition is defined as a petition that is not “without basis in law or fact.”

An H-1B applicant for admission who is no longer working for the original petitioner is admissible at a port of entry, pursuant to the AC2l’s portability provisions, as long as certain conditions listed below are met. If these conditions are met, the H-1B applicant is admissible to the validity date of the previous H-1B petition, plus 10 days. H-4 applicants for admission who are dependents of H-1B aliens employed pursuant to the portability provisions must meet these same requirements, as follows:

1. The applicant is otherwise admissible,
2. The applicant possesses a valid, unexpired passport and visa (including a valid, unexpired visa endorsed with the name of the original petitioner)
3. The applicant establishes to the satisfaction of the inspecting officer that he or she was previously admitted as an H-1B nonimmigrant or otherwise accorded H-1B status. If a visa exempt applicant is not in possession of the previously issued Form 1-94, arrival departure record, or a copy of the previously issued Form 1-94, the applicant may present a copy of the Form 1-797, Notice of Action, with the original petition’s validity dates.
4. The applicant presents evidence that a new petition was filed timely with a USCIS Service Center, in the form of a dated filing receipt, Form 1-797, or other credible evidence of timely filing that is validated through a CLAIMS [Computer-Linked Application Information Management System] query. In order to be a timely filing, the petition must have been filed prior to the expiration of the H-IB nonimmigrant’s previous period of admission. The burden of proof remains with the alien to prove that he or she is admissible as an H-1B and eligible for the visa portability provisions described in the AC21.

If the H-1B applicant for admission has changed employers but does not possess the receipt notice, Form 1-797, and a query of CLAIMS shows no evidence that a new petition has been filed, the applicant is not admissible in H-1B status and should be “processed accordingly.” An H-1B worker will not be subject to expedited removal unless fraud or misrepresentation has been established.

Similarly, if the original petition has expired, the applicant is not admissible in H-1B status unless he or she presents evidence that a new petition has been approved. Such H-1B aliens should also not be processed as expedited removals unless there is evidence of fraud or misrepresentation.

As noted above, AC21 provides for the extension of H-1B status beyond the six-year limitation in cases where an alien’s immigrant visa petition or adjustment of status’ application is pending due to the per-country limitation on visas or to a lengthy adjudication process. Therefore, it is possible that an H-1B alien may exhaust the six-year limitation of stay, yet remain in status due to the AC2l’s extension of stay provisions. As long as an alien in these circumstances remains in status with extension, he or she would not accrue unlawful presence.

Because of H-1B visas allow “dual intent,” if the H-1B applicant has an immigrant visa petition (I-140) pending and has otherwise remained in status, he or she may be readmitted to the U.S. in H-1B status, providing he or she is re-entering within the authorized period of stay. Similarly, the memo notes, an H-1B alien who has an adjustment of status (I-485 green card) application pending is not required to present an 1-512, Advance Parole Authorization, after travel outside the U.S., and may choose, instead, to be readmitted in H-1B status, so long as he or she has not violated such status.

If you have questions about an H-1B visa or employment-based green card matter, and/or you need help in an immigration process, please contact our immigration attorneys or call The Law Firm of Shihab & Associates Co., LPA at the nearest office close to you to consult with an attorney. Our law firm handles various matters including Green Cards and Permanent Residence, family immigration, immigrant visas, non-immigrant visas, employment visas and H1B visas, Investor Visas, PERM applications, and many more. Please contact us and experience how our law firm can assist you in your immigration matters. Whether you are an employer, an employee or a family member, The Law Firm of Shihab & Associates, Co., LPA has competent, responsive and innovative lawyers who can make your immigration experience pleasant and seamless.