How the American Competitiveness in the Twenty-First Century Act lets H-1B workers change employers without waiting for approval.
The H-1B portability provision under the American Competitiveness in the Twenty-First Century Act (AC21) is one of the most important protections for H-1B workers. It allows an H-1B worker to begin employment with a new employer as soon as the new employer files an H-1B transfer petition, without waiting for USCIS approval. This provision gives H-1B workers significantly more job mobility than they would otherwise have.
Section 105(a) of AC21, codified at INA § 214(n), allows an H-1B nonimmigrant who is already in the United States to begin working for a new petitioning employer once that employer has filed a non-frivolous H-1B petition on the worker's behalf. The worker does not need to wait for USCIS to approve the new petition before starting work. This provision was enacted to give H-1B workers greater labor mobility and reduce the leverage that employers held over workers who might otherwise be reluctant to change jobs.
To invoke AC21 portability, all of the following conditions must be met:
The H-1B transfer process follows these steps:
While H-1B portability provides significant flexibility, there are important risks to consider:
AC21 also includes a separate portability provision for employment-based green card applicants (Section 106). If an I-140 has been approved and the adjustment of status (I-485) application has been pending for 180 days or more, the applicant can change employers without losing their place in the green card queue, provided the new job is in the same or a similar occupational classification. This provision works independently from H-1B portability and is crucial for workers in the green card backlog who need to change employers.
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Search H-1B Sponsors on Wisa →Yes. Under AC21 portability, you can begin working for the new employer as soon as they file the H-1B transfer petition and receive a receipt notice from USCIS. You do not need to wait for the transfer to be approved. However, if the petition is ultimately denied, you must stop working for the new employer immediately. Using premium processing ($2,805) can reduce the uncertainty period to 15 business days.
There is no legal requirement to notify your current employer before the new employer files the transfer petition. However, standard professional courtesy and your employment agreement should guide your decision. Your current employer will not receive notification from USCIS about the transfer filing. You should be aware that your current employer can withdraw their H-1B petition at any time, so timing the transition carefully is important.
If the transfer petition is denied, you must stop working for the new employer immediately. Your status depends on whether the original H-1B petition is still valid and has not been revoked. If the original petition is still active, you may be able to return to the original employer. If it has been revoked or has expired, you would need to leave the U.S. or find another way to maintain lawful status. Consulting an immigration attorney promptly is critical in this scenario.
H-1B portability applies to transfer petitions regardless of cap status because a worker who has already been counted against the H-1B cap does not need to be counted again. This means the transfer petition is cap-exempt. The portability provision allows you to change employers at any time during your H-1B validity period without going through the lottery again, as long as the new employer files a valid transfer petition.