The Finer Points: H-1B Portability & E-Verify

H-1B portability allows an H-1B worker to change employers and commence employment with the new employer once the new employer has secured the required Labor Condition Application (LCA) and filed an H-1B petition with United States Citizenship and Immigration Services (USCIS). In cases where the H-1B worker currently holds H-1B status, there seems to be no doubt that the worker is employment authorized and E-Verify queries by the new H-1B employer typically will come back as “employment authorized.”

What about the situation where an H-1B worker has first switched to an intervening status (e.g., an H-1B worker goes to graduate school, holds F-1 status, and now wants to resume H-1B employment with a new employer)? Legal analysts argue that the “plain language” of the H-1B portability statute authorizes the H-1B worker to commence work immediately. However, employers have reported that E-Verify queries of such H-1B workers are returned with a final nonconfirmation (i.e., the individual is not employment authorized.) When the American Immigration Lawyers Association (AILA) asked about this circumstance, the USCIS response was that the E-Verify nonconfirmation is appropriate and that such H-1B workers are not employment authorized. Despite the plain language of the statute, the practical impact is that employers are well-advised to seek Premium Processing in H-1B portability situations where the H-1B worker holds a status other than H-1B when the petition is filed. Otherwise, USCIS will likely deem the employment unauthorized and employers using E-Verify will encounter a verification problem.