FAQ: AC21 Portability and H-1B

Q: What is AC21?

A: The term AC21 refers to American Competitiveness in the Twenty-First Century Act. A bill signed into law by President Clinton in October of 2000.

Q: What does AC21 do?

A: AC21 does two primary things. First, AC21 allows immigrants who have filed form I-485 and form I-140 to freely transfer or "port" to a new employer. Second, AC21 allows the same portability for nonimmigrants with an H-1B visa.

This FAQ deals with AC21 and H-1B portability.

For an FAQ on AC21 portability and I-140 / I-485 please click here.

Q: What is an H-1B visa?

A: The H-1B visa is a nonimmigrant visa used by an alien who will be employed temporarily in a specialty occupation. A specialty occupation is a job that requires theoretical and practical application of specialized knowledge, along with at least a bachelor's degree or the equivalent.

For example: engineering, mathematics, chemical sciences, medicine, various business specialties, law, theology and the fine arts are all specialty occupations.

Q: How does AC21 allow portability of an H-1B visa?

A: Under the law before AC21, nonimmigrants who wanted to change employers while in the country on an H-1B visa had to wait for Government approval before beginning new employment. Now, AC21 portability allows a nonimmigrant who was previously issued an H-lB visa for an employer to begin working for a new H-lB employer as soon as that new employer files a genuine H-lB petition on the nonimmigrant's behalf.

Q: What must a nonimmigrant do to be eligible for H-1B portability?

A: Before considering what employer to change to, the H-1B visa holder must meet these three requirements:

1. The nonimmigrant must have been lawfully admitted to the United States;
   
2. The new H-1B petition must have been filed before the nonimmigrant's original H-1B petition expired*; and
   
   
                 * See the following question for further explanation.
   
   
3. The nonimmigrant must not have been employed without authorization since his lawful admission to the United States, and before the filing of the new H-1B petition.

a. E.g., The nonimmigrant must not have illegally worked for the new employer without filing the petition. For this reason, it is vital that the new H-1B petition be filed properly.

Q: Can a nonimmigrant still use H-1B portability if his or her original H-1B petition has expired?

A: Maybe. H-1B portability is allowed if the nonimmigrant is still in the country on a period of stay authorized by the Government. Generally, that situation will arise where the nonimmigrant's first employer has filed an extension of the alien's original H-1B petition. If that original petition, approved for the first employer, expires during the extension. The nonimmigrant is in what is known as a "period of stay as authorized by the Attorney General" while the original extension is pending. If a new employer then files a new H-1B petition the nonimmigrant should be able to utilize AC21 and immediately "port" to the new employer.

Q: How does an employer who is hiring an alien using the AC21 H-1B portability provisions comply with Form I-9 requirements?

A: The instructions to Form I-9 do not explain how to complete the I-9 when an H-1B holder has used AC21 portability to transfer employers. The nonimmigrant is authorized to have employment but the I-9 form does not have a provision for this authorization. The immigration attorneys at Shihab and Associates recommend that employers follow documentation procedures they use for extensions of an H-1B. This should involve attaching a copy of the receipt notice for the filed H-1B petition along with a copy of the nonimmigrant's I-94 to the I-9 kept on file. For more information on I-9 requirements click here.

Keep in mind that the USCIS has not issued final regulations pertaining to AC21 portability. If you intend to change employers or you intend to hire an employee using AC21portability you should contact an attorney. The experienced and skilled immigration attorneys at Shihab & Associates Co., LPA are fully prepared to help you along every step of the way with AC21 portability.