Porting is used when a foreign national changes his or her H-1B employer. In order to port or to change employer, the foreign national must meet certain requirements, including the requirement that the new petition must be filed while the alien is in a “period of stay authorized by the Attorney General (POSABAG).”
Maria, a foreign national, was an experienced pre-school teacher in the Philippines and holds a master’s degree in child development. An employment agency found a job for Maria as Preschool Special Education Teacher. The employer is based in Los Angeles. Maria’s H-1b case was approved with three (3) years duration. Unfortunately, when Maria arrived in the United States, she was informed by the agency that the position was no longer available. Six months later, Maria found new employment for Secondary Special Education Teacher in San Diego. Two years later, Maria realized that her H-1B visa will expire in one year. She asked her employer if they can sponsor her for another three years. Since Maria’s performance has been exemplary, the school is willing to sponsor Maria. Is she eligible for a work visa?
Our immigration laws provide that a foreign national who was provided H-1B non immigrant status may begin working for a new H-1B employer as soon as the new employer files a non-frivolous H-1B petition on the non immigrants behalf, if: i) the non immigrant was lawfully admitted to the United States; ii) the non-frivolous petition for new employment was filed before the end of their period of authorized stay; and iii) the non immigrant has not been employed without authorization since his or her lawful admission to the United States, and before the filing of the non-frivolous petition. Porting is used when a foreign national changes his or her H-1B employer. In order to port or to change employer, the foreign national must meet these requirements, including the requirement that the new petition must be filed while the alien is in a “period of stay authorized by the Attorney General.”
A foreign national’s H-1B status terminates as of the date the employment ceased or the date the petition was revoked. However, the foreign national has the ability to maintain his status by “porting” to a new H-1B employer, regardless of action taken on the prior H-1B petition that supported the foreign national’s employment. If the foreign national “ports” to a new employer and accepts employment with the new employer upon the filing of a new petition, prior to the revocation of the H-1B petition filed by his or her former employer, then the beneficiary will be in an “authorized period of stay” while the newly filed petition is pending. The period during which a timely filed Extension of Status is pending continues the alien’s period of authorized stay in the United States allowing the foreign national to avoid accruing unlawful presence.
Most of the time, it takes a while for a foreign national to find a new H-1B employer. The most frequently asked question in scenarios like these is, “What is the acceptable time frame to “port” to a new H-1B employer”. Currently, statute and regulations do not provide any grace period from the time the foreign national ceases employment until the time a new petition is filed on his or her behalf; however, USCIS (United States Citizenship and Immigration Services) may, in its discretion, excuse late filed petition when extraordinary circumstances exist. Therefore, an H-1B worker seeking to transfer to a new H-1B employer should maintain employment with their current H-1B employer until the new H-1B has been filed.
Going back to Maria’s case, she is not eligible for a non immigrant or immigrant work visa even if the school is willing to sponsor her. When Maria was advised by her agency that the position for which she was petition was no longer available, her H-1B status was terminated. While Maria found a new employer in San Diego, the new employer did not file an H-1B petition. For this reason, there was no “porting” in her case. While the school is planning to file an H-1B petition now, this is too late. While late filed petition can be excused when extraordinary circumstances exist, more than one year is too long. It would be very hard to justify late filing based on extraordinary circumstances.