H1b Portability ?

ercot

Registered Users (C)
The following is from a state dept. cable (from shusterman):

Subject: New H-1B Provisions

Ref: None

1. Summary: Public Law 106-396 provided for,
among other things, “portability” for H-1B aliens, permitting them to change jobs during the pendency of the adjudication of [a] petition filed by the new employer. Set forth below are considerations for issuance of a new visa, if needed,
by such H-1B aliens.
2. Sec. 105 of Pub, L, 106-396 provided that an
H-1B nonimmigrant could change employers without
penalty providing the following criteria were met:
(a) the alien had been lawfully admitted;
(b) the new employer filed a petition for the
alien prior to the expiration of his/her authorized stay;
(c) the alien had not worked without authorization
prior to the filing of that new petition.
3.INS regulations do not provide for the automatic
revocation of an H-1B petition when the employee leaves
his/her employer. The petition remains valid until
its expiration date or its revocation on notice from
the INS pursuant to receipt of information (usually
from the employer) that the alien is no longer employed
(which occurs rarely). Therefore, in most cases the
continued validity of the petition will support
“portability” of status to a new employer.

As I read it, per above, the employee can be out of a job and still be considered in status for portability and commence work with a new employer as long as the old I797 is valid and the transfer petition has been filed.
Is this correct? My lawyer says that if you have quit your job or been laid off prior to the filing of new H1B petition you cannot be eligible for H1B portability and would have to leave the country immediately and get a visa at home consulate.
Please clarify. thanks.





:(
 
your lawyer is right

Read up AC21 Memo complete. The quoted text is an excerpt from the memo.
But there have been many H1 holders who did their transfer after a week or so after being laid off and have used portability and received new H1 with I94. Most probably -either their lawyer indicated termination date after application date or INS took a liberal view of the case.
 
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