An H-1B applicant for admission who is no longer working for the original petitioner is admissible at a Port of Entry (POE) pursuant to the portability provisions, upon presentation of the following evidence:
- That the applicant is otherwise admissible;
- That the applicant, unless exempt, is in possession of a valid, unexpired passport and visa (including a valid, unexpired visa endorsed with the name of the original petitioner);
- That the applicant 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
- That an H-1B petition was timely filed on behalf on the applicant, before expiration of the validity dates of the applicant’s previously authorized period of stay. This evidence shall be in the form of a copy of a dated Form I-797 receipt notice reflecting that a new petition has been filed, or other credible evidence of timely filing that is validated through a CLAIMS query (the software that CBP officers at port of entry use).
If the applicant is not in possession of a copy of the Form I-797, or a query of CLAIMS shows no evidence that an H-1B petition has been timely filed, the applicant is not admissible and should be processed accordingly. Generally, an applicant who lacks evidence of a pending H-1B petition would not be processed as an expedited removal unless there is evidence of fraud or misrepresentation.
The non-immigrant applicant is admissible to the validity date of the previously approved petition, plus 10 days. If the validity dates of applicant’s previously approved non-immigrant petition have expired, and the applicant does not present evidence that the new H-1B petition has been approved, they are not admissible under these provisions and should be processed accordingly. Generally, an alien whose petition has expired would not be processed as an expedited removal unless there is evidence of fraud or misrepresentation. If such an H-1 holder had not traveled abroad, he/she could continue working for a new employer using portability.
It does not apply to H-1B visa holders who have never previously been to the USA.
Applicants for admission who are dependents of non-immigrants working pursuant to portability must present the following evidence when seeking admission at a POE:
- That the dependent is otherwise admissible;
- That the dependent is in possession of a valid, unexpired passport and visa, unless exempt;
- That the principal non-immigrant on whom the applicant is dependent was previously admitted as an H-1B or otherwise accorded H-1B status. If the principal non-immigrant was visa exempt and 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 principal non-immigrant’s Form I-797, Notice of Action, with the original petition’s validity dates; and
- That an H-1B petition was timely filed on behalf of the principal non-immigrant on whom the applicant is dependent, before expiration of the validity dates of the principal non-immigrant’s previously authorized period of stay. This evidence shall be in the form of a copy of a dated Form I-797 receipt notice reflecting that a new H-1B petition has been filed, or other credible evidence of timely filing that is validated through CLAIMS query (the software that CBP officers at port of entry use).
