Green Cards (Common)
National Interest Waivers
Professors & Researchers
Executives & Managers
PERM Labor Certification
Investors (EB-5 visas)
Family (Spouse, etc.)
Work Visas (Common)
O-1 Extraordinary Ability
TN Canadians & Mexicans
J-1 Visa Holders
Nurses & Physical Therapists
H-1B Portability (i.e., Changing H-1B Employment to a New Employer)
In years past, H-1B employees who wanted to change employers had to wait until the CIS (or legacy INS) approved the new employer’s H-1B petition before the employee could start working at the new job.
Since October 17, 2000, however, the American Competitiveness in the 21st Century Act ("AC21") has allowed an H-1B employee to change employers and begin employment with the new employer as soon as the H-1B petition was filed (instead of having to wait for the new H-1B petition to be approved). This authority to start working as soon as the new petition is properly filed and remains pending is the so-called “H-1B portability” provision.
For you to take advantage of the H-1B portability provision, your new employer must file a “non-frivolous” H-1B petition (i.e., one that has a reasonable basis in law or fact) on your behalf. In general, the new H-1B petition must meet all of the following requirements to qualify:
In general, as long as you meet these requirements at the time your new employer files its H-1B petition on your behalf, you can start working for the new employer as soon as your new petition is filed
What should I do if I am currently working with Company A in H-1B status, but Company B wants to hire me?
Company B must file a new H-1B petition for you to work there. As soon as USCIS receives Company B’s new H-1B petition for you, you may start working at Company B, as long as your new H-1B petition meets all of the requirements of the "H-1B portability" provision. In addition, because of potential problems in the mailing or receipt of the petition, it is safest for you to wait until Company B actually receives the USCIS “receipt notice” before you start working for them.
I am currently working with company A. I am planning to join company B. My visa shows that I work for my previous employer, company A. After I transfer my H-1B status to company B, do I have to get a new visa stamp again from my home country or I can just continue working in the United States and obtain a new H-1B visa later on, when it is more convenient for me?
There is a difference between “H-1B status” and “H-1B visa.” Therefore, if
your new employer obtained a new H-1B petition approval for you, that H-1B
approval allows you to transfer your status to your new company and continue
working for the new company for as long as the H-1B petition and any extensions
allow. There is no immediate need for you to return to your home country and
obtain a new H-1B visa simply because you will be changing or have changed H-1B
I am an H-1B holder and I started working for my new employer under the new portability provisions. Can I leave the United States and re-enter before my H-1B change-of-employer petition has been approved?
Generally yes, but the following conditions must be met for you to be admitted into the United States in H-1B status in such circumstances (and your spouse and children must also meet these same requirements to be admitted in H-4 status):
I am an H-4 visa holder. A potential employer is willing to sponsor me for H-1B status. Does the H-1B portability rule allow me to change status from H-4 to H-1B?
Generally not. If you are currently in H-4 status (and have never held H-1B
status), then you cannot start working until your new H-1B is approved. That is,
H-1B portability is generally only available for transfers from H-1B status to
H-1B status (with a new employer).