Understanding H-1B Portability: Changing Employers and Employment Terms Without Interrupting Work Authorization
Author Mona Kesar, Esq.Principal AttorneyKesar Law LLC The H-1B visa program provides U.S. employers with a mechanism to employ foreign professionals in specialty occupations. One of the most valuable protections available to H-1B workers is the concept of portability, which allows eligible employees to change employers or modify employment terms without waiting for final approval from U.S. Citizenship and Immigration Services (USCIS). For many professionals, portability provides critical flexibility in today’s evolving job market while maintaining lawful status and work authorization. The statutory authority for H-1B portability is found in Section 105 of the American Competitiveness in the Twenty-First Century Act (AC21), codified at INA § 214(n), 8 U.S.C. § 1184(n). USCIS has further interpreted and implemented these provisions through regulations and policy guidance, including the USCIS Policy Manual and H-1B guidance published by the agency. H-1B Portability When Changing Employers A common misconception is that an H-1B employee must wait for approval of a new H-1B petition before beginning employment with a new company. In reality, eligible H-1B workers may often begin working for a new employer as soon as the new employer properly files a non-frivolous Form I-129 petition requesting H-1B classification, or on the requested start date listed in the petition, whichever is later. To qualify for portability, the employee must have been lawfully admitted to the United States, must not have engaged in unauthorized employment since the last admission, and the new petition must be filed before the expiration of the employee’s authorized period of stay. When these requirements are met, the employee may generally begin working immediately upon filing rather than waiting several months for USCIS adjudication. This portability provision has become particularly important in an era when H-1B professionals frequently receive promotions, pursue new career opportunities, or experience corporate restructuring. Rather than remaining tied to a single employer throughout lengthy processing periods, eligible employees can transition to new employment while the petition remains pending. Continued Work Authorization During Pendency Once portability applies, employment authorization generally continues while USCIS adjudicates the new petition. If USCIS ultimately approves the petition, the employee may continue working for the new employer during the validity period granted on the approval notice. However, portability authorization ends if USCIS denies the new petition. In that circumstance, the employee’s ability to continue working for the new employer ceases immediately upon denial. Depending on the facts of the case, the employee may still have valid authorization through a prior H-1B approval or may need to evaluate alternative immigration options. The 60-Day Grace Period Another important protection for H-1B workers is the discretionary grace period created by DHS regulations at 8 C.F.R. § 214.1(l)(2). If an H-1B employee is terminated, laid off, resigns, or otherwise ceases employment before the end of the approved H-1B validity period, the employee may receive a grace period of up to 60 consecutive days, or until the expiration of the current authorized validity period, whichever is shorter. During this period, the individual may seek new employment, file a change of status application, file a portability petition through a new employer, or make arrangements to depart the United States. The grace period provides valuable protection against sudden loss of status following an unexpected job separation. Changing Employment Terms with the Same Employer Portability principles are not limited to changing employers. Form I-129 may also be used when an H-1B employee experiences significant changes in employment with the same employer. USCIS guidance provides that if the employer properly files a non-frivolous Form I-129 requesting new employment or amended employment terms, the employee may generally work under the new terms once the petition is filed, or on the requested start date, whichever is later. Examples may include significant changes in duties, work location, job classification, or other material terms of employment requiring an amended petition. This flexibility allows employers to adapt to business needs while maintaining compliance with immigration requirements. Cap-Exempt to Cap-Subject Employment Portability becomes more complex when an individual seeks to move from cap-exempt employment to cap-subject employment. In most circumstances, a cap-subject employer must first obtain a valid H-1B cap registration selection before filing a petition on behalf of an individual who is employed solely in cap-exempt status. However, concurrent employment may be available in certain situations. For example, an individual working for a cap-exempt university may also accept qualifying concurrent employment with a cap-subject employer while continuing the cap-exempt employment relationship. Because cap-exemption rules are highly fact-specific, careful legal analysis is often required before making such a transition. USCIS Guidance USCIS specifically states that an H-1B worker changing employer may begin employment with the new employer as soon as the new employer properly files a non-frivolous Form I-129 petition, provided the worker meets the statutory portability requirements. USCIS further confirms that eligible employees may continue working during the pendency of the petition until a decision is issued. Additional USCIS guidance regarding H-1B specialty occupations and portability is available at: USCIS H-1B Specialty Occupations Guidance Conclusion H-1B portability provides one of the most significant protections available to foreign professionals working in the United States. Through INA § 214(n), eligible employees may often change employers or begin amended employment without waiting for final USCIS approval, allowing greater professional mobility while preserving lawful status. Combined with the 60-day grace period and amendment provisions, portability offers flexibility that benefits both employers and employees. Nevertheless, because portability eligibility depends upon maintaining lawful status, proper filing procedures, and specific factual circumstances, individuals considering a job change should carefully evaluate their options before transitioning to new employment. Legal Authorities Disclaimer This article is provided for informational and educational purposes only and does not constitute legal advice. Reading this publication does not create an attorney-client relationship with Kesar Law LLC or its attorneys. Immigration outcomes depend on the specific facts of each case, and individuals should consult qualified immigration counsel before making employment or immigration-related decisions.
FEIN Validation for First-Time H-1B Employers: A Common Labor Condition Application Requirement
AuthorMona Kesar, Esq.Immigration AttorneyKesar Law, LLC Many first-time H-1B employers encounter an unexpected warning while preparing for a Labor Condition Application (LCA) through the Department of Labor’s Foreign Labor Application Gateway (FLAG) system. The warning typically states that the employer’s Federal Employer Identification Number (FEIN) cannot be verified. Although this message can be concerning, it is generally a routine administrative issue that can be resolved through the Department of Labor’s FEIN verification process. Before an employer may file an H-1B petition with U.S. Citizenship and Immigration Services (USCIS), it must first obtain a certified Labor Condition Application. The LCA process is governed by INA § 212(n), 8 U.S.C. § 1182(n), and 20 C.F.R. Part 655, which require employers to attest to wages, working conditions, and notice obligations. As part of that process, the Department of Labor verifies the employer’s identity and business existence. If an employer has never previously filed an LCA using its current FEIN through the FLAG or legacy iCERT system, the FEIN may not yet be recognized in the Department of Labor’s database. Until the FEIN is validated, the employer may be unable to submit the LCA certification. To complete the verification process, employers generally submit documentation to establish the validity of the FEIN. While the Department of Labor may accept various forms of evidence, the most reliable document is typically the IRS SS-4 FEIN Assignment Notice or another IRS-issued document displaying the employer’s legal name and FEIN. In practice, FEIN verification requests submitted by email are often processed within approximately one to three business days, allowing the employer to proceed with the LCA filing shortly thereafter. The FEIN verification requirement does not indicate a problem with the employer or the H-1B case. Rather, it is a safeguard used by the Department of Labor to confirm that the employer is a legitimate business entity before processing Labor Condition Applications. Once verified, the FEIN is generally recognized for future filings, making subsequent H-1B cases significantly more efficient. Employers anticipating H-1B sponsorship should consider addressing FEIN verification before filing deadlines, particularly during the annual H-1B cap season or time-sensitive petitions. Early verification can help avoid unnecessary delays and ensure a smoother H-1B filing process. Legal Authority The Labor Condition Application requirement arises under INA § 212(n), 8 U.S.C. § 1182(n). Department of Labor regulations governing LCAs are found at 20 C.F.R. Part 655, Subparts H and I, while H-1B petition requirements are governed by INA § 214(i) and 8 C.F.R. § 214.2(h). Disclaimer This article is provided for educational and informational purposes only and does not constitute legal advice. Reading this information does not create an attorney-client relationship with Kesar Law LLC or its attorneys. Employers and foreign nationals should consult qualified immigration counsel regarding their specific facts and circumstances before taking action on any immigration matter.
