H-1B Visa Transfers

Many H-1B visa holders are under the impression that there is a “grace period” following the conclusion of their stay in H-1B visa status. Most believe that if they are laid off, fired or otherwise terminated that they have 30, 60 or even 90 days to find a new H-1B sponsor or just to gather their things and leave the country. This is not the case.

If the H-1B visa status terminates because the I-94 expires and there is no application for extension or transfer, then the H-1B visa holder has a grace period of 10 days, if and only if an extra 10 days is granted by US Customs and Border Protection (CBP) when the H-1B visa holder enters the United States.

If the H-1B visa holder is fired or terminated then he or she is out of status immediately. In fact, the petitioning employer is required to notify USCIS of the date of termination. If the H-1B holder is not employed by the petitioning employer and has not filed an application to transfer the H-1B visa to another company then he or she is out of status and may be accruing unlawful presence. Matter of Lee, 11 I. & N. Dec. 601 (Reg. Comm. 1966). However, USCIS has some discretion pursuant to 8 CFR 214.1(c)(4) and may allow an application for H-1B visa transfer if filed within 30 days of termination.

H-1B visa transfers are governed by INA § 214(n) and allows an H-1B visa holder to “port” to a new employer if these four requirements are met:

    1. The foreign national was lawfully admitted

    2. the new petition is “nonfrivolous”

    3. the new petition was filed before the date of expiration of period of authorized stay

    4. subsequent to lawful admission, the foreign national has not been employed without authorization

“Port” or H-1B portability means that a H-1B holder may work for a new H-1B petitioner upon the filing of an application to transfer to the new employer so long as the four requirements are met. The H-1B holder may attempt to port, even 30 days after their previous H-1B employment was terminated relying on 8 CFR 214.1(c)(4), and work for the new H-1B visa employer upon filing the application. In this case the H-1B visa holder would be legally authorized to work for the new petitioning employer at least until the application is adjudicated. Should the transfer application be denied, the alien would be required to depart the US. If the application is successful, he or she may continue to work for the new employer for the duration of the new authorized stay as shown on the new I-94.