Traveling Before H-1B Transfer Approved
It has been well established that an H-1B non-immigrant may begin working for a new employer as soon as that new employer files a "non-frivolous" H-1B petition on the nonimmigrant’s behalf. However, there has been some confusion as to whether or not the H-1B holder may travel outside of the United States after the transfer has been filed but before it has been approved.
Every H-1B holder knows that there are a number of standard questions that are always asked by the inspector when an H-1B visa holder enters the United States. Among them are "Who do you work for?" or "Are you still working for...?" The purpose of these questions is to confirm that the applicant for admission has maintained his or her status and has not fallen out of status by being unemployed for a period of time or by beginning work for a new employer without filing a transfer of the H-1B visa.
Everyone is familiar with the mantra of immigration attorneys - "Always tell the truth." Unfortunately, many H-1B holders who travel while their transfer is pending will worry about whether or not the inspector will allow them to re-enter the United States. Perhaps the inspector in question won’t be familiar with portability. Perhaps the inspector simply won’t believe that the transfer was filed or will not be able to verify that everything has been done in accordance with the law.
In an effort to clarify the effects of AC21 §105 (the law governing H-1B transfers or "portability"), the immigration Service issued a memorandum on June 19, 2001, entitled "Initial Guidance for Processing H-1B Petitions as Affected by the American Competitiveness in the Twenty-First Century Act." The memorandum states unequivocally that an H-1B holder, who applies for admission at a port of entry after an H-1B transfer has been filed, but before it has been approved, is admissible if they provide the following evidence:
- That the applicant is otherwise admissible;
- That the applicant, unless exempt, is in possession of a valid, unexpired passport and visa showing the name of the original petitioner;
- That the applicant was previously admitted as an H-1B or otherwise accorded H-1B status;
- That an H-1B petition was timely filed on behalf of the applicant, before the expiration of the validity dates of the applicant’s previously authorized stay.
What evidence should an applicant bring with him or her to the port of entry? It is essential for the applicant to have a valid passport. Non-immigrants should renew their passports before the passport falls within 6 months of its expiration date. Non-exempt applicants must also have an unexpired visa endorsed with the name of the original petitioner. The applicant should have the ability to provide proof that he or she was previously admitted in H-1B status or otherwise accorded H-1B status. A visa exempt applicant who is not in possession of the previously issued Form I-94, Arrival/Departure Record may submit a copy of Form I-797, Notice of Action, which notes the original petition’s validity dates. Form I-797 is the most helpful document for a successful re-entry under AC21 because it indicates that the transfer was timely filed by the new employer. In the event that an I-797 receipt notice has not been received by the petitioner, the inspector may accept other credible evidence of timely filing that can be validated through a CLAIMS query. CLAIMS is a case application and processing system used by the service for adjudication of applications and petitions for immigration benefits.
If the validity dates of the applicant’s previously approved immigration petition have expired and the inspector is not satisfied with the evidence he or she presents as proof that the new H-1B petition has been approved, the applicant will not be admissible under the portability provisions even though it has been well established that an H-1B nonimmigrant may begin working for a new employer as soon as that new employer files a "non-frivolous" H-1B petition and that he or she will not fall out of status if the previous visa expires before the new petition is approved. H-1B holders whose previously approved visa has expired should not travel.
In practice, the applicant should be as well documented as possible at the port of entry. In addition to a passport, a visa and a receipt notice; applicants for re-entry might also bring a copy of the cover letter which accompanied the petition to transfer the H-1B visa; copies of previous I-94's; proof that the petition was received by USCIS from FedEx or USPS and even a copy of the June 19, 2001 memorandum. Proof of the new employment itself is also helpful - for example, new business cards or a print out from the new employer's website indicating that the applicant is now employed there.
If the applicant for admission does not have a Form I-797 Notice of Action indicating that the transfer was timely filed or a CLAIMS query shows no evidence that the transfer was timely filed, the applicant is not admissible. It should be noted that in practice, some inspectors will accept the evidence described above minus the I-797 and admit the applicant without performing a CLAIMS query.
There are inspectors who are not familiar with portability. In the event that an applicant encounters such an inspector he or she may ask to speak to a supervisor or ask for deferred inspection.
A nonimmigrant applicant is admissible for the validity of the previously approved petition plus 10 days.
Applicants for admission who are dependents of non-immigrants working pursuant to portability must present the following evidence at the port of entry:
- That the dependent is otherwise admissible;
- That the dependent has an unexpired passport and visa, unless exempt;
- That the principal nonimmigrant was previously admitted in H-1B status;
- That the transfer was timely filed;
- That a qualifying relationship exists between the dependent and the principal.
Dependents should also strive to accumulate as much documentation as possible to substantiate their claim.
By Grace Kennedy – firstname.lastname@example.org
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