H1-H4-H1

[Jugaar-Tigaar]

My wife case is H1-H4-H1. her employer file an H1B on July with starting date on Aug 1st and saying she cannot start work until her H1B petition is approved.

below is the AC21 rule pragraph which her employers sent to her.

I would like to see excperts comment on that.

Thanks for your help.

JT

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.

Issued on June 19, 2001, the initial INS guidance (June 2001 INS Guidance) summarizes and interprets the American Competitiveness in the 21st Century Act (AC21).

4. Scope of H1B Portability Benefits Under AC21

In the June 2001 INS Guidance, the INS acknowledged that the U.S. Congress appeared to have extended portability benefits not merely to those who are working lawfully in H1B status at the time a new employer files a new H1B petition on behalf of a non-immigrant. On the other hand, the June 2001 INS Guidance points out that Congress could not have extended portability benefits to any non-immigrant who ever held H1B status regardless of how many years ago or what the person's present status is in the U.S. Accordingly, the June 2001 INS Guidance proposes that approximately sixty (60) days after leaving the initial H1B employer would probably be a reasonable period of time for a person to enjoy portability benefits, to allow the non-immigrant to start working for the new H1B employer. However, this provision in the June 2001 INS Guidance clearly mentions that it is a prospective statement of policy, provided solely for information and should not be used as a standard for adjudication in cases involving portability issues, until and unless there is a promulgation of a final rule with the appropriate interpretation.

[pontevecchio]

Thank God she has an ethical Employer. As regards portability search the main Murthy site for recent developments.

[Transformer]

Your employer is right. She can't start working until the new H1 petition is approved.

[Jugaar-Tigaar]

@transformer

Do you have link to any article which saying that she cannot work until its approved or you are saying just based on your experience?

I am reffering tho this which doesn't indicate that previous H1b has to wait until it gets approved.

§105. INCREASED PORTABILITY OF H-1B STATUS.

(a) IN GENERAL- Section 214 of the Immigration and Nationality Act (8 U.S.C. 1184) is amended by adding at the end the following new subsection:

"(m)(1) A nonimmigrant alien described in paragraph (2) who was previously issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) is authorized to accept new employment upon the filing by the prospective employer of a new petition on behalf of such nonimmigrant as provided under subsection (a). Employment authorization shall continue for such alien until the new petition is adjudicated. If the new petition is denied, such authorization shall cease.

"(2) A nonimmigrant alien described in this paragraph is a nonimmigrant alien--

"(A) who has been lawfully admitted into the United States;

"(B) on whose behalf an employer has filed a nonfrivolous petition for new employment before the date of expiration of the period of stay authorized by the Attorney General; and

"© who, subsequent to such lawful admission, has not been employed without authorization in the United States before the filing of such petition.".

Thanks,

R