U.S Department of Justice
Immigration and Naturalization Service
Dated: January 29, 2001
ALL REGIONAL DIRECTORS
DEPUTY ASSOCIATE COMMISSIONER, IMMIGRATION SERVICES
DIRECTOR, OFFICER DEVELOPMENT TRAINING FACILITY, GLYNCO
DIRECTOR, OFFICER DEVELOPMENT TRAINING FACILITY, ARTESIA
Michael A. Pearson
Executive Associate Commissioner
Office of Field Operations
Interim Guidance for Processing H-1B Applicants for Admission as Affected by the
American Competitiveness in the Twenty-first Century Act of 2000, Public
On October 17, 2000, President Clinton signed into law the “American
Competitiveness in the Twenty-first Century Act of 2000 (AC21).”
The new law not only increases the H-1B Petitioner Fee and the numerical
limitation on H-1B visas, but also modifies the manner in which they will
be processed. All provisions in AC21, with the exception of a fee increase,
were effective upon enactment. This memorandum is being issued to provide
interim guidance to Ports-of-Entry (POEs) when processing H-1B applicants
for admission. While these guidelines were developed to clarify in the
new law that affect the Inspections Program, it is anticipated that further
guidance will be disseminated once the Immigration and Naturalization
Service (INS) regulations have been drafted.
Visa portability provisions in AC21 allow a nonimmigrant alien previously
issued an H-1B visa or otherwise accorded H-1B status to begin working
for a new H-1B employer as soon as the new employer files a “nonfrivolous”
H-1B petition for the alien. A “nonfrivolous” petition is
one that is not without basis in law or fact. Forthcoming regulations
will further clarify this standard. Since portability provisions apply
to H-1B petitions filed “before, on, orafter” the date of
enactment, all aliens who meet the requirements may benefit the provisions
The portability provisions described in AC21 relieve the alien from the
need to await approval notification from the INS before commencing new
H-1B employment. In order to be eligible for the visa portability provisions:
(1) the alien must have been lawfully admitted into the United States;
(2) an employer must have filed a nonfrivolous petition for new employment
before the date of expiration of the period of stay authorized; and (3)
the alien must not have accepted unauthorized employment subsequent to
his/her admission and before the filing of the new petition.
An H-1B applicant for admission who is no longer working for the original
petitioner is admissible at a POE, pursuant to portability in AC21, as
long as certain conditions listed below are met. If these conditions are
met, the H-1B applicant is admissible to the validity date of the previous
H-1B petition, plus ten days. H-4 applicants for admission, who are dependants
of H-1B aliens employed pursuant to visa portability provisions, must
meet these same requirements.
1. The applicant is otherwise admissible.
2. The applicant, unless exempt under 8 CFR 212.1, is in possession of
a valid, unexpired passport and visa (including a valid, unexpired visa
endorsed with the name of the original petitioner).
3. The applicant establishes to the satisfaction of the inspecting officer
that he or she was previously admitted as an H-1B or the otherwise accorded
H-1B status. If a visa exempt applicant is not in possession of the previously
issued Form I-94, Arrival/Departure Record, or a copy of the previously
issued I-94, the applicant may present a copy of the Form I-797, Notice
of Action, with the original petition’s validity dates.
4. The applicant presents evidence that new petition was filed timely with
the Service Center, in the form of a dated filing receipt, Form I-797,
or other credible evidence of timely filing that is validated through
a CLAIMS query. In order to be a timely filing, the petition must have
been filed prior to the expiration of the H-1B’s previous period
of admission. It must be emphasized that the burden of proof remains with
the alien to prove that he or she is admissible as an H-1B and eligible
for a visa portability provisions described in AC21.
No evidence of an I-129, Petition for Nonimmigrant Worker, filed by the
If the H-1B applicant has changed employers, but is not in possession
of Form I-797 and query of CLAIMS shows no evidence that a new petition
has been filed, the applicant is not admissible in H-1B status and should
be processed accordingly. Generally, an alien who lacks evidence of a
pending petition should not be processed as an expedited removal, unless
there is evidence of fraud or misrepresentation.
The original petition has expired
If the original petition has expired, the applicant is not admissible
in H-1B status, unless the applicant presents evidence that a new petition
has been approved. Generally, an alien whose petition has expired should
not be processed as an expedited removal, unless there is evidence fraud
Extensions of stay
The AC21 provides for the extension of H-1B status in cases where an alien’s
immigrant visa petition or adjustment of status application is pending
due to the per country limitation on visas or to a lengthy adjudication process. Therefore, it is possible that an H-1B alien may exhaust the 6-year limit of stay defined in Section 214(g)(4) of the Immigration and Nationality Act, yet
remain in status due to the extension of stay provisions described in
AC21. As long as an alien in these circumstances remains in status with
extension(s), the alien would not accrue unlawful presence.
NOTE: In accordance with previously issued policy relating to dual intent,
if the H-1B applicant has an immigrant visa petition pending, and has
otherwise remained in status, he or she may be readmitted into the United
States in H-1B status, provided he or she is reentering within the authorized
period of stay. An H-1B alien who has an adjustment of status application
pending is not required to present an I-512, Advance Parole Authorization,
after travel outside of the United States. For further clarification regarding
dual intent, refer to March 14, 2000, policy memorandum subject
AFM Update: Dual Intent Follow-up Guidance: H-1 and L-1; Pending Applicants
for Adjustment of Status, validity of non-immigrant status, and the elimination
of the advance parole requirement.
Questions regarding this memorandum may be directed to either Assistant
Chief Inspector Maureen Dugan at 202-305-9242 or Beverly Matthews at 202-305-9245.
 The AC21 defines lengthy as more than 365 days since the filing of a labor
certification or petition on the alien’s behalf.
 Petitions for Department of Defense projects may be extended to 10 years.