H-1B Visas and Job Changes: The New Laws and Visa Portability

Recent changes in employment visa law (AC21, or the American Competitiveness in the Twenty-First Century Act) give increased flexibility to H-1B workers attempting to switch jobs or obtain a new position after being laid off from their first job. Specifically, the new law permits a worker with a valid H-1B visa to switch jobs legally after the new employer has submitted the I-129 petition (part 1 of the visa application), along with an accompanying labor condition application (LCA).

Prior to the new law, H-1B workers were required to wait until the petition and the LCA were approved in order to accept a new job.

In order to maintain status, the H-1B alien must:

(1) possess a current and valid H-1B visa

(2) have submitted (via the petitioner) a "non-frivolous" I-129 petition, plus accompanying labor condition application to the INS

H-1B Visa Extensions and Adjustment of Status Applications

The 6-year limit of stay for the H-1B visa may be extended if an immigrant visa petition or adjustment of status application remaINS pending due to:

(1) the per-country limitation on visas
(2) a lengthy adjudication process