The following is the text of a State Department cable (No. 01-State-27960) sent on 02/14/01, to all diplomatic and consular posts: Subject: New H-1B Provisions Ref: None 1. Summary: Public Law 106-396 provided for, among other things, �portability� for H-1B aliens, permitting them to change jobs during the pendency of the adjudication of [a] petition filed by the new employer. Set forth below are considerations for issuance of a new visa, if needed, by such H-1B aliens. 2. Sec. 105 of Pub, L, 106-396 provided that an H-1B nonimmigrant could change employers without penalty providing the following criteria were met: (a) the alien had been lawfully admitted; (b) the new employer filed a petition for the alien prior to the expiration of his/her authorized stay; (c) the alien had not worked without authorization prior to the filing of that new petition. 3. INS regulations do not provide for the automatic revocation of an H-1B petition when the employee leaves his/her employer. The petition remains valid until its expiration date or its revocation on notice from the INS pursuant to receipt of information (usually from the employer) that the alien is no longer employed (which occurs rarely). Therefore, in most cases the continued validity of the petition will support �portability� of status to a new employer. 4. It is quite likely that some H-1Bs will travel during the period following their acceptance of new employment. The Service considers them admissible without a new visa during the period of validity of the original petition plus ten days, provided the alien meets the following requirements: (a) the applicant is otherwise admissible; (b) s/he has a valid passport and visa (even if it is the original visa with the prior employer�s name); (c) s/he has the prior Form I-94 or a copy thereof or a Form I-797 showing the original petition�s validity dates; and (d) s/he has a dated filing receipt or other evidence that a new petition was filed in a timely fashion. 5. Therefore, an H-1B alien traveling abroad will need a new visa only if the original visa has expired. This should be fairly rare as the visa and petition have the same [expiration] date, unless the reciprocity schedule caused otherwise. If both the prior visa and prior petition have expired, the applicant would not be eligible for a new H-1B visa until the new petition has been approved. 6. Consular officers issuing visas to such applicants must require the same evidence the Service needs for admission, i.e. a valid passport, evidence that the old petition is still valid, and evidence that the new petition was timely filed.
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Carl Shusterman served as an INS Trial Attorney (1976-82) before opening an 8 attorney firm specializing in immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.
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