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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:

  1. who has been lawfully admitted into the United States;
  2. 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
  3. 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:

  1. 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.
  2. 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.
  3. 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.
  4. 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:

  1. Be a beneficiary of an approved I-140 petition and an approved Labor Certification application;
  2. His/her I-485 application must be pending for 180 days or more; and
  3. 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:

  1. 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.
  2. 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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