Before hiring an H-1B employee from another employer, the new employer must “file” (a H-1B petition) and pay the required government fees
Employers that want to hire away an H-1B employee need to be careful about meeting the filing requirements for movimg (or "porting") and assuring a seamless transition from the worker’s former employer to the new employer.
What is a H-1B?
The H-1B is as defined is a non-immigrant visa in the United States under the Immigration and Nationality Act, section 101(a)(15)(H). It allows U.S. employers to temporarily employ foreign workers in specialty occupations. If a foreign worker in H-1B status quits or is dismissed from the sponsoring employer, the worker must either apply for and be granted a change of status to another non-immigrant status, find another employer (subject to application for adjustment of status and/or change of visa), or leave the U.S.
1. The Problem Posed
Recently, a foreign national, worker, who was highly sought after by a corporate client of mine showed up on the client’s doorstep ready to start her new employment. The client knew that the prospective employee was a foreign national but asked few questions and never consulted human resources, which would have consulted me.
What neither the client nor the prospective hire realized was that while foreign national workers on H-1B (specialty occupation) work visas can “port”, that is, move from one employer to another, porting is neither a right, nor free from regulatory rigmarole.
2. What is a Valid “Filing”?
Before hiring an H-1B worker away from another employer, the prospective new employer must “file” an H-1B petition and pay the required government fees, which can run as high a $3,550.00, excluding attorney’s fees. It is not required that a new employer obtain an actual petition approval as a precondition to hiring an H-1B employee, but there must be, at least, a valid “filing.”
This does not, however, mean “delivery” to USCIS, but acceptance for adjudication on the basis that the petition is found free of defects. Proof of filing is therefore not a Fed Ex mailing receipt, but a written notice of filing from Immigration.
Many employers do not wait for receipt notices, but there is always the risk that a petition could be rejected because a signature was omitted or improper filing fees were tendered, or the petition was missing pages, etc., and a rejection can cause a foreign national to fall out of status.
3. POSABAG Saves the DAY
POSABAG means Period of Stay Authorized by the Attorney General. In the scenario presented not only did the foreign national worker show up on the employer’s doorstep but inadvisably had terminated (resigned) her position with her previous employer, which automatically terminated her H-1B status.
This is important for new employers to consider—it may not be enough just to focus on hiring the employee. Attention also needs to be paid to how the employee is going to separate from her previous employment so that the transition from one employment to another is seamless.
But what if you are out of luck and, like our unfortunate foreign national worker, inadvertently terminated your H-1B status before your new employer makes the requisite H-1B filing?
Let us also assume, furthermore, as was the actual case, that, but for the employee’s resignation, the worker would have remained the beneficiary of an approved H-1B petition and I-94 (Arrival-Departure Document) confirming that the worker’s status was, in fact, valid for a number of years hence.
The answer to the conundrum is the sphinx-like concept affectionately known as POSABAG, the acronym for “Period of Stay Authorized by the Attorney General.”
As commentators have pointed out, POSABAG is “not coterminous” with maintaining nonimmigrant status. Indeed, it is possible for a foreign national to fall out of status but still be able to remain in the U.S.
if she is in a period of stay authorized by the Attorney General. According to proponents of the liberal view on H-1B porting, where a foreign national is the beneficiary of an unexpired I-94, the foreign national can still port to the new employer because the worker is in POSABAG, notwithstanding her earlier status violation.
When does POABAG end?
According to one oft-cited Immigration memo, when either an immigration judge determines that the foreign national has violated status, or when Immigration issues a determination on the petition pending before it.
Next- Does That Mean the Status Violation Can be Ignored?
About the author
Robert Ian Goodman, Esq. represents clients worldwide in the areas of complex commercial immigration and international and domestic commercial law. Mr. Goodman also provides general counsel services to entrepreneurs and start-up businesses and counsels foreign businesses interested in establishing a presence in the U.S. marketplace and U.S. businesses interested in expanding abroad. Mr. Goodman is principal of Goodman Immigration. He is also Special Counsel to the international boutique law firm, Sharma & DeYoung LLP ("S&D"), where he directs the firm's commercial immigration practice. He also co-chairs that firm's Technology and Emerging Companies Practice Group and is a member of S&D's Commercial Litigation and Arbitration Practice Group.Website