I've been reading about posts about people who wants to transfer from non-profit to for-profit organizations will have to wait till Oct 1 before they can start working for the new employer. I myself am facing the same situation. I really can't see why after I read the AC21 visa portability section. I know there are a lot masters here at this forum, I'd really appreciate it if someone can correct me and help me understand it better.
First of all, it's stated in AC21 that "a nonimmigrant who was previously provided H-1B nonimmigrant status may begin working or a new H-1b employer as soon as that new employer files a nonfrivolous H-1b petition if:the nonimmigrant was lawfully admitted to the united states; the petition for new employment was filed before the end of their period of authorized stay and the nonimmigrant has not been employed without authorization since his lawful admission to the US and before the filing of the petition. Based on these conditions, suppose a person's 1st H1b expires on April 5th, if the new H1b petition is filed on April 1st and the actually approval comes on Aug 5th, it's still legal for this person to start working right after April 1st because it does not break any rules required for claiming the H1b visa portability benefit. There is obviously a big gap between April 5th and August 5th when this person only has a receipt number for the new H1b petition. If this case is still legal, then I don't see any reason why a person would have to wait till Oct 1st to starting working for the new employer if this person's cap-exempted H1b does not expire before Oct 1 or April 1st, 2004.
Secondly, the liberal definition of protability is capability of being carried or moved about. If the portability has the same strict meaning in AC21(of course it may very well not be the case), then what it means is probably that a person can carry and use his/her old H1b to work for the new employer untill the new one is approved. If this is the case, then the starting date on the new petition should not matter a whole lot as long as you have at least one valid H1b to grant your legal status. Again, this may very well not be the case. Since it does not state in AC21 under the visa portability section that this portabiity only applies to cap-subjected H1b but not cap-exempted H1b, then wouldn't it make more sense to say that this is a grey aren before any new regulation regarding this is published than simply assuming that the portability only applies to H1b-subjected H1b?
First of all, it's stated in AC21 that "a nonimmigrant who was previously provided H-1B nonimmigrant status may begin working or a new H-1b employer as soon as that new employer files a nonfrivolous H-1b petition if:the nonimmigrant was lawfully admitted to the united states; the petition for new employment was filed before the end of their period of authorized stay and the nonimmigrant has not been employed without authorization since his lawful admission to the US and before the filing of the petition. Based on these conditions, suppose a person's 1st H1b expires on April 5th, if the new H1b petition is filed on April 1st and the actually approval comes on Aug 5th, it's still legal for this person to start working right after April 1st because it does not break any rules required for claiming the H1b visa portability benefit. There is obviously a big gap between April 5th and August 5th when this person only has a receipt number for the new H1b petition. If this case is still legal, then I don't see any reason why a person would have to wait till Oct 1st to starting working for the new employer if this person's cap-exempted H1b does not expire before Oct 1 or April 1st, 2004.
Secondly, the liberal definition of protability is capability of being carried or moved about. If the portability has the same strict meaning in AC21(of course it may very well not be the case), then what it means is probably that a person can carry and use his/her old H1b to work for the new employer untill the new one is approved. If this is the case, then the starting date on the new petition should not matter a whole lot as long as you have at least one valid H1b to grant your legal status. Again, this may very well not be the case. Since it does not state in AC21 under the visa portability section that this portabiity only applies to cap-subjected H1b but not cap-exempted H1b, then wouldn't it make more sense to say that this is a grey aren before any new regulation regarding this is published than simply assuming that the portability only applies to H1b-subjected H1b?
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