Immigration

Srinivasa Reddy Kandi: Guide to Changing Employers While Retaining Status

March, 05, 2025-05:13

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Guide to Changing Employers While Retaining Status

H-1B portability is a feature established by the American Competitiveness in the 21st Century Act (AC21), facilitating a smoother transition for H-1B visa holders when switching employers.

In the year 2000, the U.S. Congress enacted the American Competitiveness in the 21st Century Act, which was subsequently signed into law by President Bill Clinton. This legislation introduced notable reforms to U.S. immigration policy, particularly concerning H-1B visas and employment-based green card processes.

Key elements of H-1B portability include:

Timing: An H-1B visa holder is permitted to commence employment with a new employer immediately upon the filing of a new H-1B petition with USCIS, without the need to await approval.

Requirements:
The H-1B visa holder must have been lawfully admitted to the United States.
The new employer is required to submit a non-frivolous H-1B petition prior to the expiration of the foreign national's current authorized stay, which includes a 60-day grace period.
The H-1B visa holder must not have participated in unauthorized employment since their last lawful admission.
Duration: An H-1B visa holder may work for the new employer for a maximum of 240 days while the new petition is under review.

Documentation: The new employer must possess proof of the timely submission, such as a dated filing receipt (Form I-797) or other reliable documentation.

I-9 Verification: Employers are required to annotate Section 2 of the I-9 form with “AC-21” and indicate the date on which the new H-1B petition was submitted to USCIS.

Travel Considerations: H-1B holders who have switched employers under portability provisions should exercise caution regarding international travel prior to the approval of the new petition, as there may be additional re-entry requirements.

Status vs. Visa: While portability facilitates a change in H-1B status, it does not automatically grant a new visa stamp. H-1B holders may need to secure a new visa stamp for any future international travel.

Limitations: H-1B portability is generally applicable only to transfers between H-1B status positions and does not typically permit transitions from other statuses (e.g., H-4/B-2) to H-1B.

Due to the current turmoil in the job market, a significant number of H-1B visa holders are opting to switch their status to B-2 to gain additional time for job searching. If you have already transitioned to B-2 status and your application for this change is still under review, you may be considering a return to H-1B status to accept a position with a new employer. The possibility of utilizing H-1B portability in this situation is a subject of some discussion, but it is indeed feasible.

H-1B portability offers enhanced flexibility for H-1B visa holders, allowing them to change employers without disrupting their employment or immigration status, which is advantageous for both employees and employers within the U.S. labor market.

Srinivasa Reddy Kandi is an Immigration policies researcher and immigration laws analyst.
Kandi Srinivasa Reddy, Srinivasa Reddy Kandi, #KandiSrinivasaReddy, #SrinivasaReddyKandi
Disclaimer: The information presented here is general in nature and might not be applicable in any given situation. It should not be interpreted as legal advice or taken for granted that it is always current.