State Department Cable:
Traveling During H-1B
Portability Period

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The following is the text of a State Department cable 
(No. 01-State-27960) sent on 02/14/01, to all diplomatic 
and consular posts:

Subject:	New H-1B Provisions

Ref: 		None

1.	Summary: 	Public Law 106-396 provided for, 
among other things,  “portability” for H-1B aliens, 
permitting them to change jobs during the pendency 
of the adjudication of [a] petition filed by the new 
employer.  Set forth below are considerations for 
issuance of a new visa, if needed, 
by such H-1B aliens.

2.	Sec. 105 of Pub, L, 106-396 provided that an 
H-1B nonimmigrant could change employers without 
penalty providing the following criteria were met:

(a)	the alien had been lawfully admitted;

(b)	the new employer filed a petition for the 
alien prior to the expiration of his/her authorized 
stay;	

(c)	the alien had not worked without authorization 
prior to the filing of that new petition.

3.	INS regulations do not provide for the automatic 
revocation of an H-1B petition when the employee leaves 
his/her employer.  The petition remains valid until 
its expiration date or its revocation on notice from 
the INS pursuant to receipt of information (usually 
from the employer) that the alien is no longer employed 
(which occurs rarely).  Therefore, in most cases the 
continued validity of the petition will support 
“portability” of status to a new employer.

4.	It is quite likely that some H-1Bs will travel 
during the period following their acceptance of new 
employment.


The Service considers them admissible without a new 
visa during the period of validity of the original 
petition plus ten days, provided the alien meets 
the following requirements:

(a)	the applicant is otherwise admissible;

(b)	s/he has a valid passport and visa (even if 
it is the original visa with the prior employer’s name);

(c)	s/he has the prior Form I-94 or a copy thereof 
or a Form I-797 showing the original petition’s 
validity dates; and

(d)	s/he has a dated filing receipt or other 
evidence that a new petition was filed in a timely 
fashion.

5.	Therefore, an H-1B alien traveling abroad will 
need a new visa only if the original visa has expired. 
This should be fairly rare as the visa and petition 
have the same [expiration] date, unless the reciprocity 
schedule caused otherwise.  If both the prior visa and 
prior petition have expired, the applicant would not 
be eligible for a new H-1B visa until the new petition 
has been approved.

6.	Consular officers issuing visas to such applicants 
must require the same evidence the Service needs for 
admission, i.e. a valid passport, evidence that the old 
petition is still valid, and evidence that the new 
petition was timely filed.

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