Question: My last day of work with Company A was 8/5/2010. Company B filed a new H-1B for me on 9/1/2010. The case is still pending. When can I start working for Company B?
Answer: Pursuant to rules of H-1B portability under AC-21 (American Competiveness Act of the Twenty First Century) a person in H-1B status may commence new employment upon the filing of a new petition by the prospective employer if: (1) s/he was lawfully admitted; (2) the new petition is “non-frivolous”; (3) the new petition was filed before the date of expiration of the period of stay authorized by the AG of the H-1B beneficiary; and (4) subsequent to such lawful admission the H-1B beneficiary has not been employed without authorization before the filing of such petition.
It is a common misconception that one must be maintaining H-1B status right up until the filing of the new H-1B to start working for the new employer upon filing. A careful review of the applicable language in AC-21 shows maintenance of H-1B status is NOT a requirement.
Notably, while porting to a new employer upon filing might be permissible, USCIS may still review the gap in employment (number of days between the last day of work with Company A and filing of the H-1B petition by Company B) and decide whether to grant an extension of status or consular approval, which leads to an exit/re-entry.
Generally, when the gap is 30 days or less, USCIS will usually grant an extension of status. The longer the gap, the more likely USCIS will grant consular approval, which requires exit/re-entry - barring an ultra-aggressive interpretation of AC-21, ie, using the consular approval to continue working for Company B.
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