Portability was established by the American Competitiveness in the Twenty-First Century Act (AC21) and allows an H-1B status holder to change their employer and start work for their new employer as soon as the new employer files an H-1B petition with the U. S. Citizenship and Immigration Services (USCIS). Portability’s main purpose is to help reduce the long delay created when an H-1B status holder wishes to transfer to a new employer. Prior to AC21, an H-1B status holder could not begin work for a new employer until a new petition had been approved by the USCIS, which could take up to 3 months or longer. Now, under certain circumstances, an H-1B holder can start work for a new employer in H-1B status when the petition is filed, which has been defined by USCIS as when the petition is received at the appropriate office.
In order to qualify for portability, the H-1B status holder must have: been lawfully admitted to the U.S.; have a non-frivolous H-1B petition (one that has some basis in law or fact) filed on their behalf before the date of expiration of the period of authorized stay; and must not have been employed without authorization in the U.S., subsequent to such lawful admission and before the filing of such petition. Furthermore, the new H-1B petition must be accompanied by evidence of a filing of the Labor Condition Application (LCA). The LCA mandates that an employer meet prevailing wage requirements and maintain a file regarding the particulars of the LCA.
Our immigration lawyers would be happy to assist you if you are in H-1B status and are seeking to change employers.