H-1B Portability Guide
H-1B CHANGE OF EMPLOYER (PORTING)
HOW TO DOCUMENT H-1B PORTABILITY NEW HIRES IN TRACKER
This guide shows how to complete a new Form I-9 for an H-1B employee who qualifies to begin employment with the new employer as soon as the Form I-129 H-1B Portability petition is filed.
To create a new I-9 for an H-1B Change of Employer employee within Tracker I-9 Complete, take the following steps:
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In Section 2, select the List A “Foreign Passport with I-94 or I-94A” option.
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In the Additional Document selector that appears, choose “H-1B Portability (AC-21)” and click the Continue with Selected Document(s) button.
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Enter the Foreign Passport, I-94 and Additional Document information, including the H-1B Filing Date and Reverification Due Date.
- The I-9 Manager should enter the date the Form I-129 H-1B petition to change employers was filed with USCIS per the Form I-797C Receipt Notice. As a reminder, this date must be before the employee's I-94 expiration date in order to be considered timely filed. Once the H-1B Filing Date is entered.
- The Reverification Due Date will automatically calculate to 120 days from the “H1B Filling Date”. The Reverification Due date is an approximation since reverification for an H-1B employee who is changing employers must take place when USCIS issues a decision for the petition.
- The Additional Information text field in Section 2 will auto-populate with the text “Section 2 AC-21/I-129 filing Date [H1B Filing Date]".
- When the I-9 Manager updates Section 3, the Additional Information text field will auto-populate with the text “Section 3 240 Day Ext. I-129 Filing Date [Extension Filing Date]”.
- The I-9 Manager should click Save/Acknowledge and electronically sign the amendment recording the changes.
- The employer must reverify the employee’s employment authorization in Section 3 once they receive a decision from USCIS.
Alternatively, if the employee has not yet received the I-797C, you should upload copies of the following documents while you await the I-797C:
- A copy of the new Form I-129.
- Proof of payment for filing a new Form I-129.
- Evidence that you mailed the new Form I-129 to USCIS.
BACKGROUND INFORMATION
U.S. businesses use the H-1B program to temporarily employ foreign workers in a specialty occupation that requires theoretical or technical expertise in a certain field, such as science, engineering, or computer programming. As a U.S. employer, you may submit a Form I-129, Petition for a Nonimmigrant Worker, to USCIS for nonimmigrants who have certain skills, provided they meet established requirements. You must also include an approved Form ETA 9035, Labor Condition Application, with Form I-129 and other documentation.
An H-1B employee who is changing H-1B employers may begin working for the new employer as soon as the employer files a Form I-129 petition on behalf of the employee, however, the employer must do this before the employee’s period of authorized stay expires. You must also complete a new Form I-9 for this newly hired employee. An H-1B employee’s unexpired Form I-94 issued for employment with the previous employer, along with their foreign passport, qualifies as a List A document. You should write “AC-21” and enter the date you submitted Form I-129 to USCIS in the Additional Information field in Section 2. See Section 6.7, Completing Form I-9 for Nonimmigrant Categories When Requesting Extensions of Stay.
DOCUMENTS
After submitting the petition for extension to USCIS, USCIS will send you a Form I-797C, Notice of Action, acknowledging that the petition is pending. This should be kept with the employee’s I-9.
If you don’t yet have the I-797C, keep the following documents with the employee’s existing Form I-9 to show that you filed for an extension of stay on their behalf:
- A copy of the new Form I-129 or Form I-129CW.
- Proof you paid the filing fee.
- Proof you mailed the new petition to USCIS.
Once you receive the Form I-797C, you no longer need to keep copies of the I-129 application, proof of payment, and mailing receipt.
SAMPLE I-797C RECEIPT NOTICE
