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Understanding H-1B Portability

You received a job offer from a new company while working on H-1B status for your current employer. Can you accept the offer and start immediately, or must you wait months for USCIS to approve the transfer petition before beginning work? What happens if you give notice to your current employer before the new petition is approved?

The H-1B portability changing employers provisions allow you to start working for new employers once they file H-1B transfer petitions, without waiting for approval. This critical flexibility prevents career opportunities from slipping away during lengthy USCIS processing times, but portability comes with important conditions and risks you must understand.

Planning an H-1B employer change? Beyond Border guides you through AC21 H-1B portability rules ensuring smooth transitions without status gaps.

Understanding AC21 Portability Provisions

AC21 H-1B portability rules stem from the American Competitiveness in the 21st Century Act enacted in October 2000. Section 105 of AC21 allows H-1B workers to begin employment with new petitioning employers once transfer petitions are properly filed.The portability provision addresses a critical problem. Before AC21, H-1B beneficiaries had to wait for transfer petition approvals before starting new jobs. With processing times stretching 3-6 months or longer, this delay made job changes impractical and forced workers to decline opportunities.

Portability allows you to start new employment as soon as the new employer files a non-frivolous H-1B petition on your behalf. You don't need to wait weeks or months for USCIS approval. This flexibility makes H-1B portability one of the most valuable provisions for foreign workers.However, portability isn't automatic. You must meet specific eligibility requirements. Your portability rights end if USCIS denies the transfer petition, potentially leaving you without status. Understanding these conditions prevents serious immigration violations.

Portability Eligibility Requirements

When I can switch H-1B employers depends on meeting several critical eligibility requirements. Not all H-1B workers qualify for portability in all situations.You must be in lawful H-1B status when the new petition is filed. If your H-1B status expired, was revoked, or you fell out of status, portability doesn't apply. You cannot use portability to regain status you've already lost.

You must have been previously granted H-1B status. Initial H-1B beneficiaries selected in the lottery cannot use portability to start working before their October 1 start dates. Portability only applies to workers already in H-1B status changing employers.The new petition must be non-frivolous and properly filed. If the new employer files a petition with obvious deficiencies, missing required documentation, or incorrect fees, USCIS may determine the petition wasn't properly filed, voiding portability protection.

You cannot have employment authorization gaps. If you stopped working for your previous H-1B employer and remained unemployed for an extended period before the new petition was filed, you may have fallen out of status, losing portability eligibility.

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When You Can Actually Start Working

Starting a new H-1B job before approval timing involves both legal permission and practical considerations. Understanding the distinction between when you legally can start and when you practically should start matters enormously.Legally, you can begin working as soon as USCIS receives and accepts the new petition. The moment the new employer files the transfer petition with proper forms, fees, and documentation, and USCIS accepts the filing, your portability rights begin.

The H-1B transfer receipt notice timing typically takes 2-3 weeks. USCIS processes incoming petitions, assigns receipt numbers, and mails receipt notices to petitioners and beneficiaries. The receipt notice confirms USCIS accepted the filing and provides a case number.You don't legally need to wait for the receipt notice to start working. AC21 portability attaches when petitions are filed, not when receipt notices arrive. However, starting work before receiving the receipt notice creates practical risks.

Conservative practice recommends waiting for receipt notices before starting. Receipt notices provide proof that petitions were properly filed and accepted. Without receipts, you have no documentation proving your portability rights if questions arise.Premium processing accelerates receipt notice timing to approximately one week. For $2,805, new employers can request premium processing guaranteeing 15-day adjudication. This speeds up both receipts and final decisions, reducing uncertainty periods.

Timing Your Departure from Current Employer

Avoiding H-1B status gaps requires careful coordination between leaving your current employer and starting with new employers. Poor timing creates status gaps jeopardizing your immigration standing.Give notice to current employers only after new petitions are filed. Don't resign before new employers file transfer petitions. If unexpected delays occur in filing, you could end up unemployed without portability protection.

Your H-1B status with current employers typically ends when employment ends. Once you stop working for current employers or give notice with specific end dates, your status with those employers terminates. File new petitions before this happens.Small gaps between jobs are generally acceptable if petitions are filed timely. If your last day with Employer A is Friday and you start with Employer B on Monday, and Employer B filed the petition before you left Employer A, you should maintain status through the weekend.

Extended unemployment periods create serious risks. If weeks or months pass between leaving one employer and starting with another, you may fall out of status. Portability doesn't restore status lost through prolonged unemployment.Laid-off workers have 60-day grace periods. If employers terminate your employment involuntarily, you have up to 60 days or until your I-94 expires, whichever is shorter, to file new petitions. This grace period provides a cushion for finding new employers.

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What Happens If Transfer Petitions Are Denied

Portability eligibility requirements H-1B include understanding that portability protection ends if USCIS denies transfer petitions. Denial consequences vary based on your specific circumstances.If denied, you must stop working for new employers immediately. Portability only protects you while petitions are pending. Once USCIS issues denials, you no longer have work authorization with new employers.

You may still have status with previous employers if their petitions remain valid. If your previous H-1B petition hasn't expired and wasn't revoked, you might return to previous employers or remain in the US until those petitions expire.

Denials often allow time to respond or appeal. If USCIS denies transfer petitions, new employers can file motions to reopen, motions to reconsider, or appeals. During these proceedings, you generally cannot work unless you had previously approved H-1B status with other employers.

Some denials result from correctable issues. If USCIS denies petitions because newemployers made mistakes in filing, those employers can correct errors and refile. However, you cannot work for them during the new petition filing and adjudication unless you have status with different employers.

Careful petition preparation minimizes denial risks. Working with experienced immigration attorneys who thoroughly prepare transfer petitions significantly reduces denial likelihood, protecting your portability rights.

Frequently Asked Questions

Can I start working for a new H-1B employer before approval?

Yes, H-1B portability changing employers under AC21 allows you to begin employment once new employers file non-frivolous transfer petitions with USCIS, without waiting for approval, though conservative practice recommends waiting for receipt notices confirming proper filing before starting work.

What are the requirements to use H-1B portability?

Portability eligibility requirements H-1B include being in lawful H-1B status when new petitions are filed, having been previously granted H-1B status rather than being initial beneficiaries, new petitions being properly filed and non-frivolous, and no employment authorization gaps that could cause status loss.

How long does it take to get an H-1B transfer receipt notice?

H-1B transfer receipt notice timing typically takes 2-3 weeks after USCIS receives petitions, though you can legally start working as soon as petitions are filed, with premium processing available for $2,805 accelerating receipts to approximately one week while guaranteeing 15-day adjudication.

What happens if I quit my current H-1B job before the transfer is approved?

Avoiding H-1B status gaps requires ensuring new employers file transfer petitions before your employment with current employers ends, as H-1B status typically terminates when employment ends, though small gaps between jobs are acceptable if petitions are filed before you leave current employers.

When exactly can I switch to a new H-1B employer?

When can I switch H-1B employers depends on new employers filing proper transfer petitions with USCIS while you maintain lawful H-1B status, with portability rights beginning at filing though practical considerations favor waiting for receipt notices, and requiring you to stop working immediately if petitions are denied.

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