Congress gave relief to the employers and H-1B beneficiaries relating to the transfer of their H-1B employment without waiting for an approval of the petition before commencing employment. §105 of AC21 provides that a nonimmigrant who was previously issued an H-1B visa or provided H-1B nonimmigrant status may begin working for a new H-1B employer as soon as that new employer files a "nonfrivolous" H-1B petition on the nonimmigrant's behalf, if:

(a) the nonimmigrant was lawfully admitted to the United States;
(b) the nonfrivolous petition for new employment was filed before the end of their period of authorized stay; and
(c) the nonimmigrant has not been employed without authorization since his lawful admission to the United States, and before the filing of the nonfrivolous petition.

Change Employer During Pending of H-1B Transfer?

In order to port, H-1B beneficiary must meet all the requirements of INA Section 214(n), including the requirement that the new petition must be filed while the alien is in a “period of stay authorized by the Attorney General.”

Successive H-1B portability petitions may be filed for an H-1B beneficiary while the previous H-1B petitions remain pending (i.e. creating a “bridge” of H-1B petitions). However, to be approved every H-1B portability petition must separately meet the requirements for H-1B classification and for an extension of stay.

In the event that the H-1B beneficiary’s H-1B status has expired while the petitions are pending, the denial of any petition in the string of extension of stay /or change of status filings burns the “bridge” that “carried” any petition filed after the expiration of any approved status which will result in the denial of the successive requests to extend or change status.

Dependants’ Status Remain H-4

The status of a dependent of a principal nonimmigrant that is working pursuant to portability benefits is derivative of and linked to the status of the principal nonimmigrant. Therefore, H-4 dependents will remain in H-4 status if the principal nonimmigrant is lawfully working pursuant to portability benefits.