The American Competitiveness In the Twenty-First Century Act, or AC21, section 105(a), created an important benefit for H-1B nonimmigrants known as H-1B portability. (This is not to be confused with the permanent portability provision, also created by AC21).

The American Competitiveness In the Twenty-First Century Act, or “AC21”, section 105(a), created an important benefit for H-1B nonimmigrants known as “H-1B portability.” (This is not to be confused with the “permanent portability” provision, also created by AC21).

H-1B portability refers to the ability of H-1B nonimmigrants to begin working for a new employer upon the filing of a new H-1B petition, rather than having to wait until the petition is approved to start working. Nonimmigrants in all other statuses are required to wait for petition approval to start work.

AC21 105 states:

1. A nonimmigrant alien described in paragraph (2) who was previously issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) is authorized to accept new employment upon the filing by the prospective employer of a new petition on behalf of such nonimmigrant as provided under sub- section (a). Employment authorization shall continue for such alien until the new petition is adjudicated. If the new petition is denied, such authorization shall cease.
2. A nonimmigrant alien described in this paragraph is a nonimmigrant alien—
   1. who has been lawfully admitted into the United States;
   2. on whose behalf an employer has filed a nonfrivolous petition for new employment before the date of expiration of the period of stay authorized by the Attorney General; and
   3. who, subsequent to such lawful admission, has not been employed without authorization in the United States before the filing of such petition.
   
   

   It is clear, then, and no one disputes that someone who entered the U.S. in H-1B status, has maintained his status and never worked without authorization, may begin working for a new H-1B employer upon the filing of a new petition requesting a change in employer. The new employment may begin as soon as the petition is properly filed, meaning upon Fed Ex confirmation of delivery to USCIS, with all the appropriate fees included, and with proper signatures where required. (If required fees or signatures are missing, the petition may be rejected in the mail room as improperly filed).

   There is some ambiguity, however, as to whether someone who previously entered the U.S. in H-1B status; has since changed to another status such as H-4 or L-1; may invoke the H-1B portability provision to begin working for a new employer upon the filing of a new H-1B petition. Based on a plain reading of AC21, this is absolutely appropriate because all the requirements for porting have been met: the person was “previously issued a visa or otherwise provided nonimmigrant [H-1B] status;” he was lawfully admitted to the U.S.; an employer has filed a nonfrivolous petition for new employment before his previous status expired; and the person has not been employed without authorization in the United States before the filing of the petition.

   Despite meeting the requirements for porting, USCIS has publicly indicated, though not in the form of regulations or even a non-binding policy memo, that someone who is in any status other than H-1B is ineligible for porting. These comments arose in the context of E-Verify. E-Verify is a voluntary, internet-based program through which employers may choose to verify the employment authorization of their U.S. workforce. Employers who are enrolled in E-Verify must run each new hire's employment authorization information through the government-run database to confirm eligibility. Thus USCIS has programmed E-Verify to accept or reject various forms of documentation. It appears, from USCIS' comments in meetings with AILA, and from the experience of several colleagues, that USCIS has configured E-Verify to reject as unauthorized to work, any employee who seeks to port to new H-1B employment if they are not currently in H-1B status.

   USCIS has a long history of unofficial rule-making, often through policy memoranda which the agency states are non-binding but which their employees nevertheless are required to follow—the practical upshot of which is that the agency can rely on the memos but immigrants can't. Anyone who does rely on them, even though they're the only available guidance on tricky legal issues, does so at his own peril because he cannot rely on those memos in a court of law if his actions are ever challenged. Recently, USCIS was called out on this behavior in the context of the STEM OPT rule, which they implemented without going through the proper rule-making procedures. USCIS' approach to unofficially declaring the official interpretation that one cannot port from any status other than H-1B to new H-1B employment is a similar move: it is a legal interpretation, one which almost every immigration lawyer, if not all, would find incorrect, and the agency is enforcing it, at least in the context of E-Verify employers.

   So how do immigration attorneys advise the handful of clients who find themselves in this tricky situation? The most conservative option, of course, is to simply wait until the petition has been approved before starting to work for the new employer. If Premium Processing is used, the wait time will be very short. And certainly, if the employer uses E-Verify, it makes sense not to push a more aggressive legal interpretation because it will result in a “Tentative Non-Confirmation” in the E-Verify system, which must then be officially contested. An employee may wish to go through this process, or not. It is certainly a rational decision to choose to avoid the hassle involved in doing so.

   For those people who seek to port from a status other than H-1B to start working for an employer that has not opted to use E-Verify, however, it may make more sense to assert the more aggressive legal opinion that the person is eligible to use H-1B portability. In either case, if USCIS inquires into whether the person has ported and ultimately determines that the person did so without authorization, the consequence is that that person's H-1B petition may be approved but his extension of stay request could be denied, meaning he would have to leave the U.S., obtain a new H-1B visa, and reenter the U.S. using the new H-1B approval notice.