H1B Visa Attorney – Change of Employer & Portability Rule Update

Critical update to all of you H1B job changers. Under the H-1B portability provisions, an applicant for H-1B status may begin working for the sponsoring employer immediately upon the filing of the Form I-129 Petition for Alien Worker, provided that the applicant is a “nonimmigrant” and “was previously issued a visa or otherwise provided nonimmigrant status [under the H-1B regulations].” The latter phrase has been subject to varying interpretations within the legal community. The situation arises when a foreign national enters the U.S. in H-1B status, subsequently changes his or her status to another status, and then again seeks H-1B status at a later date. In the past, some attorneys have argued that the H-1B portability provisions should allow a foreign national in this situation to begin employment with the petitioning employer upon the filing of the H-1B petition.

U.S. Citizenship and Immigration Services (USCIS) has recently intimated that it will construe the H-1B portability provisions to apply only to those non-immigrants holding H-1B status at the time of filing the subsequent H-1B petition. This development stems from the return of tentative and final non-confirmations from the E-Verify system related to those foreign nationals who are currently in a non-immigrant status other than H-1B and who have filed an H-1B petition utilizing the portability provision.

In response to the reports of erroneous non-confirmations from the E-Verify system, AILA’s Verification Committee addressed E-Verify officials on this issue. AILA was informed that the non-confirmations issued in the situation of foreign nationals filing H-1B petitions while in a valid, non-immigrant status other than H-1B are final, and have been issued based on internal guidance from the USCIS Chief Counsel’s office. This guidance has not been released to the public and USCIS does not believe that this is a new interpretation of the H-1B portability provisions. USCIS is said to be working on AC21 regulations to clarify this issue.