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Ac21 Portability For H4 To H1b Filing For Previous H1b Visa Holder

Discussion in 'AC 21 H-1B Issues' started by Brian Hobzek, Sep 14, 2015.

  1. Brian Hobzek

    Brian Hobzek New Member

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    It is my understanding that in certain situations a previous H1B visa holder can work after applying for new H1B from current H4 status.

    Is this accurate and if so under what conditions and what documentation is required ?


    Thanks
    Brian
     
  2. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Section 105 of the AC21 legislation provides:

    ยง105. 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

    "(C) who, subsequent to such lawful admission, has not been employed without authorization in the United States before the filing of such petition.".
    Even though there are no regulations implementing this legislation, the USCIS argues that portability only exists if you are going from H1B to H1B. I think that is nonsense and don't see any legal authority that supports their position.​
     

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