H-1B Portability and AC21
AC21 provides guidance to H-1B workers who wish to change employers while
remaining in H-1B status. This is commonly known as portability rule.
An H-1B worker can start working for a new employer as soon as the new
employer files an H-1B transfer petition with USCIS (the “Received
Date” on the Receipt Notice). This article will cover two topics:
(1) whether the alien worker will be subject to the H-1B annual statutory
cap when s/he changes jobs; and (2) changing H-1B employers with pending
adjustment of status application (I-485).
In order to take advantage of the portability rule, INA 214(n) requires that an H-1B worker must be an individual who:
- who has been lawfully admitted into the United States;
- on whose behalf an employer has filed non-frivolous petition for new employment before the date of expiration of the period of stay authorized by the Attorney General; and
- who, subsequent to such lawful admission, has not been employed without authorization in the United States before the filing of such petition.
Cap-Subject or Cap-Exempt
The issue of whether the H-1B petition filed by the new employer is subject to the annual statutory cap often raises confusion. As a general rule of thumb, an alien worker will only be counted against H-1B cap once within six years prior to subsequent H-1B petitions. Analysis of this issue will become clearer if we break it down into four different scenarios:
- If an H-1B worker transfers from a cap-exempt employer (institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations, or governmental research organizations)to another cap-exempt employer, then the transfer petition filed by the new employer is not subject to the annual cap.
- If an H-1B worker transfers from a cap-subject employer (i.e. software company) to another cap-subject employer, then the transfer petition filed by the new employer is not subject to the annual quota because the H-1B worker has already been counted against the cap when his/her initial H-1B petition was approved.
- If an H-1B worker transfers from a cap-subject employer to a cap-exempt employer, then the transfer petition filed by the new employer is not subject to the annual cap because the new employer is exempt from the annual quota.
- If an H-1B worker transfers from a cap-exempt employer to a cap-subject employer, then the new employer must file a cap-subject transfer petition. This means that the H-1B worker and the new employer must consider the H-1B timing restriction, employment start date, as well as the availability of cap numbers.
There are however two exceptions to the cap-subject requirement in the fourth scenario. The first exception is that if H-1B worker does not terminate his/her cap-exempt employment and the new employer files a concurrent cap-subject H-1B petition, then s/he is not subject to cap. For example, the H-1B worker is working part-time for a non-profit research organization (a cap-exempt employer) and accepts a second part-time job with a computer software company (a cap-subject employer). So long as the H-1B worker continues working for the non-profit research organization, the H-1B petition filed by the computer software company is not subject to the H-1B cap.
The second exception is that if the H-1B worker held cap-subject employment before moving to the cap-exempt employment. In this case, transferring from a cap-exempt employer does not require filing a cap-subject transfer petition. For example, Employer 1 filed a cap-subject H-1B petition for an alien worker during the first year of the six-year period of the H-1B status. The petition was approved and the alien worker worked for Employer 1 for one year. Thereafter, he quit the job and started working for Employer 2, a cap-exempt employer, who filed an H-1B transfer petition. The alien worker worked for Employer 2 for one year on the approved transfer petition and then quit and started working for Employer 3, who is a cap-subject employer. In this scenario, since the alien worker was already counted against the H-1B cap once during the six-year period when he worked for Employer 1, Employer 3’s H-1B transfer petition would not be subject to the H-1B cap.
See USCIS Memorandum, D. Neufeld, “Supplemental Guidance Relating to Processing Forms I-140 Employment-Based
Immigrant Petitions and I-129 H-1B Petitions, and Form I-485 Adjustment
Applications Affected by the American Competitiveness in the Twenty-First
Century Act of 2000 (AC21)” (May 30, 2008).
Changing H-1B Employers with Pending I-485
AC21 also permits an alien worker to change employers while his/her adjustment of status application (I-485) is pending. To take advantage of the AC21 portability in this situation, the alien worker must satisfy the following:
- Be a beneficiary of an approved I-140 petition and an approved Labor Certification application;
- His/her I-485 application must be pending for 180 days or more; and
- The new job is in the same or similar occupational classification as the job for which the I-140 petition was filed.
An I-140 is no longer valid for porting purposes when (1) it is withdrawn before the H-1B worker’s I-485 has been pending 180 days; or (2) it is denied or revoked at any time except when it is revoked based on a withdrawal that was submitted after an I-485 has been pending for 180 days.
Moreover, what constitutes “same or similar” occupational classification is not clearly defined in the law. However, when making a determination of whether the new employment is “same or similar” to the employment in the initial I-140, USCIS adjudicators will consider the following factors:
- Description of the job duties contained in the Labor Certification or the initial I-140 and the job duties of the new employment to determine if they are the “same or similar” occupational classification.
- The DOT code and/or SOC code assigned to the initial I-140 employment for petitions that have a certified ETA 750A or consider what DOT and/or SOC code is appropriate for the position for an initial I-140 that did not require a certified ETA 750A. Then consider the DOT code and/or SOC code, whichever is appropriate for the new position to make a determination of “same or similar” occupational classification.
Moreover, USCIS cannot use as a basis of a denial a difference in the wage offered on the approved Labor Certification, initial I-140 and the new employment. However, a substantial discrepancy between the previous and the new wage may be taken into consideration as a factor in determining if the new employment is “same or similar.” Likewise, USCIS cannot base a denial on the geographic location of the new employment. See USCIS Memorandum dated December 27, 2005.
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