Traveling Before H-1B Transfer Approved (Ⅱ)
If the validity dates of the applicant’s previously approved immigration petition have expired and the inspector is not satisfied with the evidence he or she presents as proof that the new H-1B petition has been approved, the applicant will not be admissible under the portability provisions even though it has been well established that an H-1B nonimmigrant may begin working for a new employer as soon as that new employer files a “non-frivolous” H-1B petition and that he or she will not fall out of status if the previous visa expires before the new petition is approved. H-1B holders whose previously approved visa has expired should not travel.
In practice, the applicant should be as well documented as possible at the port of entry. In addition to a passport, a visa and a receipt notice; applicants for re-entry might also bring a copy of the cover letter which accompanied the petition to transfer the H-1B visa; copies of previous I-94; proof that the petition was received by USCIS from FedEx or USPS and even a copy of the June 19, 2001 memorandum. Proof of the new employment itself is also helpful - for example, new business cards or a print out from the new employer's website indicating that the applicant is now employed there.
If the applicant for admission does not have a Form I-797 Notice of Action indicating that the transfer was timely filed or a CLAIMS query shows no evidence that the transfer was timely filed, the applicant is not admissible. It should be noted that in practice, some inspectors will accept the evidence described above minus the I-797 and admit the applicant without performing a CLAIMS query.
There are inspectors who are not familiar with portability. In the event that an applicant encounters such an inspector he or she may ask to speak to a supervisor or ask for deferred inspection.
A nonimmigrant applicant is admissible for the validity of the previously approved petition plus 10 days.
Applicants for admission who are dependents of non-immigrants working pursuant to portability must present the following evidence at the port of entry:
(a) that the dependent is otherwise admissible;
