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H-1B Portability: Who Qualifies?

AC21 Sec. 105 provides that a nonimmigrant who was previously issued a H-1B visa may begin working for a new H1B sponsor as soon as the transfer H1B petition is filed with the INS.  To determine if this is applicable to your situation, foreign nationals must examine the following questions: 

• When the foreign national last entered the U.S., did she lawfully enter?     
  
  

• Since her last lawful admission, has she ever been employed without authorization?                
  
  

• Is the H1B transfer petition being submitted frivolous?
  
  

• Will the H1B petition be submitted before the end of her period of authorized stay?

If these questions cannot be answered affirmatively, the portability feature of AC21 will not apply and the foreign national may be required to wait until after the transfer petition is approved or file for an initial H-1B petition.