http://www.y-axis.com/consulting/h1bclause.asp
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Carl Shusterman (an ex-INS Trial Attorney ): The general guidelines for each H-1B portability are as follows:
1) You must have been lawfully admitted to the United States,
2) The new H-1B employer must file a petition with the INS on your behalf, before your period of stay expires; and,
3) after your lawful admission to the United States, you must not have been employed without authorization.
If you meet all three of these criteria, you may start working for the new employer as soon as your new H-1B is filed with the INS. There is no minimum or maximum waiting time. You may start working for the petitioning employer immediately.
Question #2: My question is I'm an H-1B holder. If I got laid off and filed a change of status to H-4, can I use the H-1B portability if I find a job before the change to H-4 is approved by the INS?
Carl Shusterman: Section 105 of the American Competitiveness in the 21st Century Act is the section of the law which creates H-1B portability.
This section does not restrict H-1B portability to persons who are currently in H-1B status. It is enough that you are in lawful (e.g., H-4) status and you formerly were in H-1B status. Therefore, to answer your question directly, even though your application for a change of status from H-4 remains pending, your new prospective employer may ask the INS to change your status back to H-1B and you can take advantage of the H-1B portability provisions and start working with the new employer as soon as the H-1B petition is filed with the INS.
However, the INS, in a memorandum dated June 19, 2001, states that they believe that Congress did not mean to extend portability benefits to anyone "who has ever held H-1B status, no matter how long ago." The INS indicates that the regulations will establish "some reasonable period of time, such as 60 days after leaving the initial H-1B employer" during which you can utilize H-1B portability. I do not believe that such a limitation is authorized by the statute. However, if the INS imposes a 60 day limitation on the use of H-1B portability in the regulations, you will be taking a risk to try to use H-1B portability if you have not been working in H-1B status for over 60 days. At some point such a provision in the regulations will have to be tested in federal court.
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http://www.kamya.com/intro/h1b.html
==========================================================================================================
Where an H-1B worker has been laid off or terminated, and his H-1B petition has not been revoked, the worker may request a change of status to another nonimmigrant category while he seeks employment. If the worker locates suitable employment, the new employer to submit an H-1B petition to the INS and request a change of employers. The amount of time that an H-1B worker may stay in the U.S. after being laid off or terminated is not defined in the law or the regulations. Various INS officials over the years have opined the H-1B worker must submit an application for a change of employers within 30 days or 60 days. However, these statements are merely opinions and do not have the force of law.
The wise worker will obtain an offer of employment, and have the new employer submit an application to change H-1B employers, as soon as possible. Under AC-21, the H-1B cap law enacted during October 2000, the worker may commence employment with the new employer as soon as the H-1B transfer petition is submitted to the INS. Either it will be approved, or if the INS decides that too much time has elapsed since the worker was laid off or terminated, the INS will approve the H-1B petition and deny the application to change employers in the U.S. In the later case, once a Notice of Approval is issued, the worker may depart the U.S. and apply for a new H-1B visa abroad. If his old H-1B visa has not expired, he may be able to simply travel outside the U.S. and return using his original H-1B visa and his original Notice of Approval (form I-797) of his newly-approved H-1B petition.
If an H-1B worker is laid off or terminated, and can not quickly obtain a professional offer of employment, another alternative is to submit an application to change status to a B-1 business visitor or a B-2 tourist while he looks for work. When he finds a job, the new employer may apply to the INS to change his status back to H-1B.
==========================================================================================================
Carl Shusterman (an ex-INS Trial Attorney ): The general guidelines for each H-1B portability are as follows:
1) You must have been lawfully admitted to the United States,
2) The new H-1B employer must file a petition with the INS on your behalf, before your period of stay expires; and,
3) after your lawful admission to the United States, you must not have been employed without authorization.
If you meet all three of these criteria, you may start working for the new employer as soon as your new H-1B is filed with the INS. There is no minimum or maximum waiting time. You may start working for the petitioning employer immediately.
Question #2: My question is I'm an H-1B holder. If I got laid off and filed a change of status to H-4, can I use the H-1B portability if I find a job before the change to H-4 is approved by the INS?
Carl Shusterman: Section 105 of the American Competitiveness in the 21st Century Act is the section of the law which creates H-1B portability.
This section does not restrict H-1B portability to persons who are currently in H-1B status. It is enough that you are in lawful (e.g., H-4) status and you formerly were in H-1B status. Therefore, to answer your question directly, even though your application for a change of status from H-4 remains pending, your new prospective employer may ask the INS to change your status back to H-1B and you can take advantage of the H-1B portability provisions and start working with the new employer as soon as the H-1B petition is filed with the INS.
However, the INS, in a memorandum dated June 19, 2001, states that they believe that Congress did not mean to extend portability benefits to anyone "who has ever held H-1B status, no matter how long ago." The INS indicates that the regulations will establish "some reasonable period of time, such as 60 days after leaving the initial H-1B employer" during which you can utilize H-1B portability. I do not believe that such a limitation is authorized by the statute. However, if the INS imposes a 60 day limitation on the use of H-1B portability in the regulations, you will be taking a risk to try to use H-1B portability if you have not been working in H-1B status for over 60 days. At some point such a provision in the regulations will have to be tested in federal court.
=================================
http://www.kamya.com/intro/h1b.html
==========================================================================================================
Where an H-1B worker has been laid off or terminated, and his H-1B petition has not been revoked, the worker may request a change of status to another nonimmigrant category while he seeks employment. If the worker locates suitable employment, the new employer to submit an H-1B petition to the INS and request a change of employers. The amount of time that an H-1B worker may stay in the U.S. after being laid off or terminated is not defined in the law or the regulations. Various INS officials over the years have opined the H-1B worker must submit an application for a change of employers within 30 days or 60 days. However, these statements are merely opinions and do not have the force of law.
The wise worker will obtain an offer of employment, and have the new employer submit an application to change H-1B employers, as soon as possible. Under AC-21, the H-1B cap law enacted during October 2000, the worker may commence employment with the new employer as soon as the H-1B transfer petition is submitted to the INS. Either it will be approved, or if the INS decides that too much time has elapsed since the worker was laid off or terminated, the INS will approve the H-1B petition and deny the application to change employers in the U.S. In the later case, once a Notice of Approval is issued, the worker may depart the U.S. and apply for a new H-1B visa abroad. If his old H-1B visa has not expired, he may be able to simply travel outside the U.S. and return using his original H-1B visa and his original Notice of Approval (form I-797) of his newly-approved H-1B petition.
If an H-1B worker is laid off or terminated, and can not quickly obtain a professional offer of employment, another alternative is to submit an application to change status to a B-1 business visitor or a B-2 tourist while he looks for work. When he finds a job, the new employer may apply to the INS to change his status back to H-1B.
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