H-1B Visa Portability at the Port of Entry
I. INTRODUCTION:
US Immigration Laws allow a beneficiary present in the US on H-1B visa status to join a new employer upon the filing of a good faith H1-B visa transfer petition by the new company. In other words, the portability provisions allow the H-1B visa beneficiary to begin working for the new employer once the transfer H-1B visa petition is deemed "filed." The filing of the H-1B visa petition occurs when the USCIS actually logs the transfer petition into its systems, not when the USCIS simply receives the petition. It is for that reason, that The Law Firm of Shihab & Associates, Co., LPA advises its clients to wait until the receipt notice is issued and received by the petitioning company and the beneficiary both before she actually joins the forces of the new employer. Two additional conditions must be observed before an H-1B visa beneficiary ports her status to another employer: the H-1B visa petitioner must had been lawfully admitted to the US and had not accepted work without authorization. But how could an H-1B visa Beneficiary transfer her H-1B visa status after she loses her employment?
II. TRANSFERRING EMPLOYERS AFTER LOSING H-1B VISA STATUS
It must be remembered that US immigration laws stipulate that an H-1B visa beneficiary become "out of status" immediately upon termination of their employment. That seems to be a harsh rule since many H-1B visa beneficiaries establish their lives in the US after their arrival. Many own homes and have children attending school. Hence, it is inconceivable to expect such beneficiaries to immediately depart the US upon terminating their employment. What is the solution for the H-1B visa beneficiary should she lose her employment, and hence status?
A beneficiary must be in valid H-1B visa status in order to transfer such status to another employer. One who does not have "status" could not logically transfer status to another employer. As we know transferring one's H-1B visa status to another employer requires the beneficiary to provide paystubs as proof of her continued valid status.
How can an employee transfer her status to another employer once her employment with the previous employer terminates?
Example 1: H-1B Visa Transfer Filed After Employment Termination But Within the "Grace Period."
Jane Alien had been in H-1B visa status for 3 years working for Company A. For a reason unknown to her, Company A terminated her employment without cause. But Jane was able to find employment with another firm, Company B who now wants Jane to join its forces as soon as possible. Jane's immigration lawyer, who happened to be Gus M. Shihab, Esq., advised her that she must file her H-1B visa transfer within the "Grace Period" specified by the USCIS. Can Jane successfully transfer her H-1B visa?
Analysis & Solution:
Company A can legally terminate Jane because the employment at will doctrine allows an employer to terminate an employee without any reason. Jane is now immediately out of status because her status is incident her employment in the US; once her employment terminates so loses her visa status immediately. Although not written anywhere, the USCIS has stated in one of the liaison meetings that transferring a beneficiary's H-1B visa status after job termination will be examined on a "case by case" basis. However, the USCIS will accept the filing of an H-1B visa transfer petition without paystubs if the petition is filed within 4 weeks after the issuance of the last paystub. This is what is known as the "Grace Period."
The "Grace Period" is an unknown duration which follows the termination of the beneficiary's H-1B visa status due to cessation of her employment. Within the grace period, the USCIS will accept and favorably process transfer petitions albeit the H-1B visa beneficiary had been out of status. As stated in the example, this period is generally accepted to be 4 weeks following the date of the last paystub issued to the beneficiary. The Law Firm of Shihab & Associates, Co., LPA has been successful in securing H-1B visa transfers within such grace period. If you have a question about this issue, contact us by e-mail or at 1-877-479-4USA.
Example 2: H-1B Visa Transfer Filed After Employment Termination But Within The Severance Period.
Jane Alien worked in the US for Company A on H-1B visa status for 5 years. She was subsequently laid off. Because of her 6 year tenure, the company decided to give her a severance package equating to one (1) week of pay for each year Jane served in the company. During such severance period the company will also keep Jane's health insurance current. Jane looked for another job but she could not find one until after 10 weeks had elapsed since her termination.
Analysis & Solution:
Some US companies provide a severance payment which equate to so many more weeks of pay. The severance period is usually commensurate with the employee's service. In most instances, all other benefits the employee enjoyed with the company continue after termination including health insurance. Immigration practitioners have taken the view, and USCIS agreed, that the beneficiary's status also continues to be current for the entire severance period because the employee continues to receive compensation. In other words, if Jane received 5 weeks of pay after her last date of employment with Company A, she remains in status for the duration of that period. After the end of the severance period, Jane becomes out of status. However, by reading the analysis in Example 1 above, one determines that the USCIS will additionally recognize a "grace period" of about 4 weeks subsequent to the beneficiary's last date of pay. In this example, Jane found an employer wishing to transfer her H-1B visa after 10 weeks of her last working day. Five of those weeks Jane was within the severance period and in status. The grace period is generally 4 weeks. Hence, Jane is late by only one week. Will the USCIS accept her transfer petition? Probably yes.
For some H-1B visa beneficiaries, finding new employment after having been terminated does not come fast. Some beneficiaries are forced to remain in the US subsequent to their employment had terminated for a variety of reasons. Some aliens find employment months after their termination and well after the passage of the grace period. Even if the new employer is willing to sponsor the alien in H-1B visa status, the alien is unable to successfully transfer her H-1B visa as she has been out of status for a considerably long period.
There are, nonetheless, a couple of ways which would allow the beneficiary to get back into valid H-1B visa status:
Beneficiaries whose H-1B visa status was terminated through loss of employment, are able to get back quickly in H-1B visa status upon the filing of an H-1B visa petition with a new employer even long after the termination of the beneficiary's status. This is accomplished through a relatively old principle called "portability at the port of entry" which would require beneficiaries to be leave the US in order to cure the out of status period, and then re-enter the US to join the new employer under the H-1B visa portability provisions.
Several conditions must be present in order for H-1B visa "portability at the port of entry" to work: 1) the beneficiary must not had committed acts that would render her inadmissible into the US; 2) she must have a valid H-1B visa stamp on her passport even though it may have been issued to a previous employer; 3) the beneficiary had previously been admitted to the US on H-1B visa status or was otherwise given such status in the US; and 4) the beneficiary must show evidence of the filing of a good faith H-1B visa petition to the new employer.
Example 3: H-1B Visa Transfer Portability at the Port of Entry
While in her home country, Jane Alien received an H-1B visa petition approval filed by Company A. This enabled Jane to obtain a three year H-1B visa stamp which she used to enter the US in valid H-1B visa status. Jane continued to work for Company A for 1.5 years. Company A terminated Jane and she remained in the US looking for alternative employment. Six (6) months later, Jane finds another employer, Company B who wants to employ Jane. Company B files an H-1B visa petition on Jane's behalf requesting consular processing. A receipt notice was issued evidencing the filing of the H-1B visa petition. Jane is unsure what to do.
Analysis & Solution:
Jane became out of status by virtue of termination of her employment. She was not able to have an employer file an H-1B visa transfer on her behalf within the grace period. Instead, her H-1B visa petition was filed 6 months after termination of her employment and status. However, Jane is eligible to take advantage of the H-1B visa portability at a US port of entry. Jane has not, to our knowledge, committed any acts that would render her inadmissible. Jane was previously admitted to the US on H-1B visa status. Jane is also in possession of a valid unexpired H-1B visa stamp on her passport. Finally, Jane has a receipt notice issued by the USCIS for Company B's filing of a bona fide H-1B visa. All what Jane has to do now is to depart the US briefly and show her new H-1B visa petition receipt notice to be allowed in the US on valid H-1B visa status to work for Company B.
This solution is certainly a "last resort." If the alien is unable to use any of the solutions identified above such as portability within the grace period, within the severance period, or to port her H-1B visa at the port of entry, the alien can simply have her H-1B visa issued at a US consulate overseas. This will entail the new company filing an H-1B visa for the beneficiary and once approved, she can then apply for stamping at a US Consulate in her home country. It must be stressed that visa stamping is best applied for in the beneficiary's home country and not in Canada or Mexico as these consulates are likely to refuse to accept jurisdiction over the beneficiary due to loss of her status.
III. CONCLUSION
Losing one's employment is a traumatic experience. For H-1B visa beneficiaries, loss of employment also means immediate loss of status. H-1B visa portability can occur through various means. The attorneys at The Law Firm of Shihab & Associates, Co., LPA are experienced in the particulars involving delicate and complex visa issues of H-1B visa portability and regaining status. Contact us by e-mail or phone if you have an H-1B visa portability case in the US or H-1B visa portability case at the port of entry.