H-1B Portability, Issues In the Transferring of the H-1B Visa When the Petitioning Employee Changes When the H-1B Holder Switches Jobs

The transfer of an H-1B visa from one employment to another is referred to as “portability.”

If an H-1B visa holder wishes to change companies s/he must file an amended H-1b petition.

An H-1B holder can accept new employment from the moment the new petition is physically received by the USCIS, so long as :

• He/she was lawfully admitted;
• The new petition is non-frivolous;
• The new petition was filed before the date of expiration of the period of stay authorized by the Attorney General; and subsequent to such lawful admission, the H-1B beneficiary has not been employed without authorization before the filing of such petition.

The portability of the employment authorization continues until the new petition is adjudicated.

When the Petitioner’s identity changes, but the H-1B visa holder’s job remains the same.
When the petitioning employer undergoes a corporate restructuring, such as a merger, acquisition, consolidation, etc, or when a new corporate entity succeeds to its interests and obligations, so long as the terms and conditions of employment remain the same, an amended H-1B petition is not necessary. (this applies even where the corporate EIN has changed).
Where there is a successor employer and the H-1B holder is returning to the US, s/he should present a letter stating that the corporate entity has succeeded the previous employer and that the terms and conditions of employment remain the same.

This does not constitute legal advice. If you need legal advice you should contact an attorney.