7. Portability of the H-1B Petition

Previous Immigration laws stated that an individual could not be employed by a new employer until their H-1B petition was approved with Employment Authorization, or until the beneficiary entered the United States with an H-1B visa related to the H-1B petition, and received an I-94 noting H-1B status.  The United States Citizenship and Immigration Service has amended these regulations.  If an individual is already in H-1B status, and has not violated said status, and filed another H-1B petition prior to the expiration of their present H-1B status, with either the same employer, or a different employer, the individual can commence employment with the new employer, or remain employed by the present petitioning entity, as long as confirmation of the filing of the H-1B petition has been received and the start date listed on the petition has been reached.  Additionally, if the position requires licensure, the appropriate licensure must be obtained.

Accordingly, an individual who is presently in H-1B status may be able to avoid paying for Premium Processing, since the individual can be employed while the petition is pending.

However, if you are changing from an employer who was exempted from the H-1b cap, to an employer who is subject to the cap, and the H-1b cap has been reached, you should speak to an attorney about whether you should rely on this provision. Please see the other memos in this pamphlet which incorporate this issue in their discussions.

Last update: November 24, 2005