DOS Instructs on H1B Portability Under AC21
Posted Mar 23, 2001

As many MurthyBulletin readers are aware, it is now possible for an H1B worker to begin working with a new company upon filing of the new company's petition with INS, rather than waiting until the approval of the petition, if the person satisfies certain criteria as mentioned below. This new "portability" provision which is set forth in section 105 of the American Competitiveness in the Twenty first Century Act (AC21) has certainly been an important change for companies and employees.

The new rule has also raised difficult questions for INS and the U.S. Department of State (DOS) officials, making their jobs more complicated, particularly when H1B employees travel abroad while the H1B petition is pending with the new employer. On January 29, 2001, the INS issued helpful instructions for INS Inspectors at U.S. ports of entry, as to the criteria for processing arriving travelers who had already taken up a new H1B job while the new employer's H1B petition was still pending. We described those guidelines in a MurthyBulletin article, entitled INS Instructs Inspectors on Travel and H1B Portability from our February 16, 2001 issue.

Subsequent to INS' guidance, DOS has now issued its own instructions on February 14, 2001 regarding section 105 of AC21. Since the DOS is responsible for operations at U.S. consulates, including visa issuance matters, the DOS generally comes into contact with the H1B worker only if s/he travels abroad. Therefore, the DOS telegram to officers in the field focuses on the circumstances when a new H1B visa may be needed for readmission to the U.S. For a better understanding of the new policies and procedures established by the DOS, we suggest reading this article together with our article cited above, instructing the INS officers at ports of entry who will provide status to these H1B workers upon their return to the U.S.

To summarize, section 105 of AC21 clearly allows an H1B worker to commence work with the new H1B employer when the following conditions are satisfied:

a) the employee has been lawfully admitted to the U.S.;

b) the employer has filed an H1B petition on a timely basis (prior to the expiration date on the employee's I-94 card); and

c) as of the date of filing the H1B petition, the employee has not worked without authorization.

If the H1B employee travels abroad after taking up the new job, but prior to approval of the new company's H1B petition, the INS instructions state that the person should be allowed back into the U.S. without the need for a new H1B visa as long as:

a) the employee possesses a valid (un-expired) passport and visa (as mentioned in various articles of the MurthyBulletin, the person can use the un-expired H1B visa stamp issued for a prior employer);

b) the H1B worker has either a copy or the original of either the prior I-94 or the H1B petition approval notice of the prior employer;

c) the H1B worker has either an INS receipt or other proof that the new H1B employer's petition was received by INS; and

d) the H1B worker is "otherwise admissible," meaning that there is not an issue such as criminal record, fraud etc. which would prevent the person from being admitted into the U.S.

In view of the INS guidance, DOS therefore concludes that the only time a person in the portability situation would need a new H1B visa is if the prior visa has expired. Please note that in order to obtain a new H1B visa at a consulate abroad, the person must possess an INS H1B petition approval that is valid beyond the date of the visa stamp. Such a situation would occur when, for example, the H1B worker had entered the U.S. to work for Employer A, with the H1B visa for Employer A. Later on, the H1B employee obtained an INS H1B petition approval for Employer B, but did not apply for a new H1B visa in the name of Employer B. In this situation, the H1B visa stamp expires before the expiration date on Company B's H1B petition approval. Even if the person has an H1B petition pending for Company C, and is already working for Company C, it should be possible to get a visa stamp on the Company B approval notice. Other examples of situations when a person would have an H1B petition approval valid beyond the expiration date of the H1B visa stamp in the passport are: (i) the H1B worker’s passport was expiring, or (ii) reciprocity rules between the U.S. and the H1B’s native country allow the visa to be stamped for a shorter period.
 
As long as the latest approved H1B petition is valid beyond the date of the H1B visa, then it should be possible to get the visa through the currently approved company, even though the person is already working for the new company. In contrast, if the prior employer's H1B petition has already expired while the new H1B petition was pending, then it is necessary to wait for approval of the new petition and remain abroad until the visa can be issued on the new company's approval.