Our guest expert Carl Shusterman, Esq. is with us. I am going to turn moderation on and present him with your questions. Everyone, please remember these questions and answers are of a general nature and cannot be construed as legal advice. Welcome, Carl.

Question #1: Is there a minimum and/or maximum time frame for changing employers while on an H-1B? What are the general guidelines?

Carl Shusterman: The general guidelines for each H-1B portability are as follows: 

1) You must have been lawfully admitted to the United States,

2) The new H-1B employer must file a petition with the INS on your behalf, before your period of stay expires; and,

3) after your lawful admission to the United States, you must not have been employed without authorization.

If you meet all three of these criteria, you may start working for the new employer as soon as your new H-1B is filed with the INS. There is no minimum or maximum waiting time. You may start working for the petitioning employer immediately.

Question #2: My question is I'm an H-1B holder. If I got laid off and filed a change of status to H-4, can I use the H-1B portability if I find a job before the change to H-4 is approved by the INS?

Carl Shusterman: Section 105 of the American Competitiveness in the 21st Century Act is the section of the law which creates H-1B portability. 

Carl Shusterman: No.

Question #4: If I change H-1B sponsors is there a cap and long waiting period?

Carl Shusterman: Once you are in H-1B status, a petition to change H-1B employers is not subject to the cap. These days, given the state of the economy, it is highly unlikely that the H-1B cap will be reached anyway.

Regarding waiting times, these vary considerably depending on which of the four INS service centers your employer files an H-1B petition on your behalf. See http://shusterman.com/toc-sc.html - click on the service center where your petition will be filed. Look at the processing times for form I-129 - H-1B. Of course, because of H-1B portability waiting times are not a problem as you are allowed to start working for the new employer as soon as the petition is filed, not when the petition is finally approved.

However, if you desire to speed up the processing time for your H-1B petition, you can do so by paying the INS an additional $1000 in filing fees and using their Premium Processing Program. See http://shusterman.com/toc-premium.html.

Question #5: Usually in the H-1B transfer process, how many paychecks are required by INS as evidence?

Carl Shusterman: You bring up a good point. Whenever you transfer from one H-1B employer to another, the INS may ask you for evidence that you are maintaining proper H-1B status by working for employer #1. This evidence usually consists of paycheck stubs and possibly a letter from your employer. Although different service centers have different requirements, usually two or three recent pay stubs will suffice. If you have been terminated by your first employer, there is no "grace period" for you to look for another H-1B employer. You must immediately submit an application to the INS for a change of non-immigrant status and tell the INS that you are looking for another H-1B sponsor. As soon as you find an H-1B sponsor, and they submit an H-1B petition on your behalf, you may immediately begin working for them under the H-1B portability provisions.

The remaining questions that we have are either duplicates of questions that we have already answered or do not concern H-1B portability. Therefore, let me just take a moment to provide you with a few useful links. The INS memo of June 19, 2001 referred to above, can be found at: http://shusterman.com/pdf/ac21pearson.pdf . The text of AC-21 may be found at http://shusterman.com/s2045txt.html.

Also, our H-1B visa page is at http://shusterman.com/toc-h1b.html It contains numerous articles and FAQs about AC-21 as well as a link to our chat of January 14, 2002 on the 180-day portability rule. 

Jennifer Wipf: That last chat transcript should help many of you with green card portability questions you are asking tonight.

Question #6: Another question about portability suppose I changed my H-1B to H-4 and INS has approved the change and later I find an employer, does the portability still apply?

Carl Shusterman: Yes.

Jennifer Wipf: You can also see http://immigration.knowitallmall.com/library/weekly/mpreviss.htm for all our chats on H-1B cases and 245(i).

Carl Shusterman: Thank you for your excellent questions. Our next chat will take place on March 18th and will be entitled "New Laws Provide Benefits for E and L visa holders." Please join us then. We'll be happy to answer your questions. Good night!