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i completed my masters in 2007 and was working on h1b visa from oct 2007-may2009 . then i changed to b2 before i left for india but came back in 2010 (i was out of the country for less than a year) on h4. now i have got a job and have already applied for h1b through premium processing but can i start working based just on the receipt? i know that its allowed but risky.. was going through this page on murthy


the reason being that the company wants me to start working immediately. i wont be able to postpone the start date.

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Unfortunately, utilizing AC21 portability with a new employer when not already in H1B status is riskier now than in January 2010 when the article you cite was written. On April 7, 2011, in a question-and-answer session with the American Immigration Lawyers Association (AILA), the USCIS confirmed what is now the agency's internal view regarding H1B portability: "H1B portability pursuant to AC21 . . . applies to nonimmigrants who are currently in H1B status or an authorized period of stay based on a timely-filed extension of an H1B status petition." Therefore, USCIS does not consider AC21 provisions as granting work authorization upon the filing of a valid H1B petition unless the Beneficiary of the petition is already in valid H1B status. Please see the following link regarding the USCIS interpretation: http://www.murthy.com/news/n_portpo.html

For a more in-depth discussion regarding this matter and the options available to you, please contact a qualified U.S. immigration attorney.

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what about the people who used AC21 before April 7th 2011?

unfortunately when my husband transferred from H1-H4-H1 and started working before actual approval of H1, the attorney supported this and she told us that one can start working in H1B as long as they worked at some point on H1 and stayed in US legally through out their stay.

will it affect the person's GC application process?

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  • 1 month later...


I also started work based on H1 portability in July. I was on H1 until Feb and then changed to H4. My new H1 was filed in June. Note that e-verify system rejected my work authorization but my employer and attorney challenged it, I had to make some call and later with manual intervention from my employer and lawyers, it was approved. I am still waiting on my H1 petition approval but have been working. Am I in some problem? What should I do?

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