H-1B Portability and Travel under AC21

I often receive questions concerning whether travel abroad is possible based on the previously stamped H-1B visa (with unexpired dates) through a former employer.  The legacy INS
Memorandum from Michael A. Pearson, Executive Assoc. Comm’r, Office of Field
Operations (January 29, 2001)
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.  Please ensure that you collect all proper documentation prior to utilizing this process.  In addition, you should obtain a letter from your current employer certifying that they are aware of your trip.  If possible, consult an attorney for details concerning your specific case.

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