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

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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