Travel (with prior H-1B visa) and H-1B portability
The
legacy INS Memorandum from Michael
A. Pearson, Executive Assoc. Comm’r,
Office of Field Operations (Jan. 29,
2001) gives details regarding when
an H-1B holder who transferred to a
new company is able to travel while
awaiting the new H-1B adjudication.
The
letter states that an H-1B
beneficiary is admissible at a port
of entry even if he or she is no
longer working for the original
petitioner, provided that the
following conditions are met:
1. The
applicant is otherwise admissible;
2. The
applicant, unless exempt under 8 CFR
§212.1, §1212.1, is in possession of
a valid, unexpired passport and visa
(including a valid, unexpired visa
endorsed with the name of the
original petitioner);
3. The
applicant establishes to the
satisfaction of the inspecting
officer that he or she was
previously admitted as an H-1B or
otherwise accorded H-1B status. If a
visa exempt applicant is not in
possession of the previously issued
Form I-94, Arrival/Departure Record,
or a copy of the previously issued
I-94, the applicant may present a
copy of the Form I-797, Notice of
Action, with the original petition’s
validity dates; and
4. The
applicant presents evidence that the
new petition was filed timely with
the Service Center, in the form of a
dated filing receipt, Form I-797, or
other credible evidence of timely
filing. In order to be a timely
filing, the petition must have been
filed prior to the expiration of the
H-1B’s previous period of admission.
The burden of proof is on the
applicant to show that he or she is
admissible as an H-1B and eligible
for visa portability provisions
described in AC21.
The U.S. Immigration Law Blog by Ashwin Sharma 