If you’re working in the United States on an H-1B visa and considering switching employers, understanding H-1B portability is crucial. Many H-1B holders worry that changing jobs could result in falling out of status or facing long processing delays—but thanks to provisions under AC21 (American Competitiveness in the 21st Century Act), you may have options that allow a smoother transition.
In this post, immigration attorney David Nachman of NPZ Law Group explains the concept of H-1B portability, who qualifies, and how employers and employees can minimize risk during job changes.
What Is H-1B Portability?
H-1B portability is a legal provision under AC21, Section 105 that allows a foreign worker in valid H-1B status to begin working for a new employer immediately upon the “proper filing” of a new H-1B petition—without having to wait for formal USCIS approval.
This offers flexibility to H-1B workers and employers alike, promoting labor market mobility and supporting high-demand talent across industries.
Who Qualifies for H-1B Portability?
To take advantage of this provision, the worker must:
- Be in valid H-1B status at the time of the change
- Have not violated the terms of their visa
- Have a new employer who has properly filed a non-frivolous H-1B petition with USCIS
This filing can be done with or without premium processing, but speed and clarity become critical when job transitions are time-sensitive.
What Does “Proper Filing” Mean?
The definition of “proper filing” can vary depending on the employer’s level of risk tolerance:
- Some employers allow onboarding as soon as the FedEx tracking shows delivery to USCIS.
- Others require a USCIS receipt notice.
- More conservative employers wait until they receive full approval before allowing the new hire to start.
Each approach carries different levels of legal and business risk. Consulting with immigration counsel is essential to align expectations and avoid status issues.
What Happens If the New H-1B Petition Is Denied?
This is one of the biggest risks of relying on portability. If USCIS denies the H-1B petition after the employee has already switched jobs:
- The worker may lose legal status immediately.
- They cannot return to their previous employer unless that H-1B petition remains valid.
- They may have to leave the country and reapply from abroad.
This is why attorneys at NPZ Law Group strongly recommend using conflict waivers and indemnification agreements to protect employers, while exploring premium processing to reduce uncertainty.
Why Use Premium Processing with Portability?
Premium processing allows for 15-day expedited adjudication. Employers often combine portability filings with premium service to:
- Reduce delays
- Minimize risk of misalignment with start dates
- Help HR departments manage onboarding expectations
While optional, premium processing is often a wise investment for high-priority hires or critical positions.
Strategic Considerations for Employers
Employers considering H-1B portability should evaluate:
- The importance of timing for project start dates
- Willingness to assume risk during the transfer period
- Whether to wait for approval vs. receipt vs. delivery
- Use of legal safeguards like waivers and agreements
Partnering with an experienced immigration attorney ensures that the transfer process is compliant and that risk is managed proactively.
Why AC21 Was a Game-Changer
Prior to the AC21 legislation, workers had little flexibility and were essentially “tied” to their original H-1B sponsor. With portability, the U.S. immigration system now supports greater labor flexibility, enabling workers to pursue better wages and growth opportunities without sacrificing their legal standing.
Need Help with an H-1B Job Transfer?
Whether you’re an employer hiring an H-1B candidate or a foreign national ready to change jobs, NPZ Law Group is here to help. We’ll guide you through every step of the portability process and help you make informed, risk-mitigated decisions.
Call 201-670-0006 or visit www.visaserve.com to schedule a consultation with our employment-based immigration team.
Contact Information
If you or your family members have any questions about how immigration and nationality laws in the United States may affect you, or if you want to access additional information about immigration and nationality laws in the United States or Canada, please do not hesitate to contact the immigration and nationality lawyers at NPZ Law Group. You can reach us by emailing info@visaserve.com or by calling us at 201-670-0006 extension 104. We also invite you to visit our website at www.visaserve.com for more information.