Traveling Before H-1B Transfer Approved (Ⅰ)

It has been well established that an H-1B non-immigrant may begin working for a new employer as soon as that new employer files a “non-frivolous” H-1B petition on the non-immigrant’s behalf. However, there has been some confusion as to whether or not the H-1B holder may travel outside of the United States after the transfer has been filed but before it has been approved.

Every H-1B holder knows that there are a number of standard questions that are always asked by the inspector when an H-1B visa holder enters the United States. Among them are “Who do you work for?” or “Are you still working for...?” The purpose of these questions is to confirm that the applicant for admission has maintained his or her status and has not fallen out of status by being unemployed for a period of time or by beginning work for a new employer without filing a transfer of the H-1B visa.

Everyone is familiar with the mantra of immigration attorneys - “Always tell the truth.” Unfortunately, many H-1B holders who travel while their transfer is pending will worry about whether or not the inspector will allow them to re-enter the United States. Perhaps the inspector in question won’t be familiar with portability. Perhaps the inspector simply won’t believe that the transfer was filed or will not be able to verify that everything has been done in accordance with the law.

In an effort to clarify the effects of AC21 §105 (the law governing H-1B transfers or “portability”), the immigration Service issued a memorandum on June 19, 2001, entitled “Initial Guidance for Processing H-1B Petitions as Affected by the “American Competitiveness in the Twenty-First Centaury Act.”” The memorandum states unequivocally that an H-1B holder, who applies for admission at a port of entry after an H-1B transfer has been filed, but before it has been approved, is admissible if they provide the following evidence:

(a)       that the applicant is otherwise admissible;

(b)      


Source:Kuck Casabalanca & Odom, LLC