Employment Based Immigration Handbook
I. H-1B Overview
I.4 H-1B EXTENSIONS AND PORTABILITY (When a prospective Beneficiary currently holds valid H-1B status)
Extension
Current UToledo H-1B Employee in Valid H-1B Status: A foreign national may work up to 240 days without the need for an Approval Notice (I-797) upon the filing of a non-frivolous I-129 petition and when UToledo is in possession of a USCIS Receipt Notice. Generally, this requires the prospective employee to maintain their lawful H-1B status without expiration and to not have engaged in unauthorized employment in the past.
The sponsoring College or Department should initiate the H-1B process six months prior to the current expiration or initiate the process prior to a contemplated change in job title, job location, job duties, or other substantial/material change. The extension procedure will be just as time-intensive and will require the same petition and materials as a change of status petition.
Upon the filing of a non-frivolous petition and subsequent arrival of a Receipt Notice, a prospective employee may work until the petition is adjudicated or up to 240 days, whichever comes first. Adjudication of the H-1B which may or may not result in approval.
Portability
H-1B Employee from Another Employer: In this case, there is a prospective employee who currently holds valid H-1B status from another employer. In this circumstance, UToledo will be able to either “port” from the previous employer’s H-1B or file a new H-1B extension as long as the new non-frivolous H-1B petition is received by USCIS prior to the expiration of the employee’s existing H-1B. The prospective employee must hold valid H-1B status and not have engaged in unlawful employment in the past.
- "To be eligible for portability, you must not have been employed without authorization from the time of your last admission into the United States, and your new employer must properly file a new, non-frivolous petition before your H-1B period of authorized stay expires." --from USCIS H-1B Speciality Occupations, Changing Employers or Employment Terms with the Same Employer (Portability)
Careful planning by the prospective employee must take place. As there is no grace period upon the termination of an H-1B (i.e., separation from the prior employer), steps should be taken to maintain uninterrupted and continuous employment. This is important for both prospective employees and employees who may separate from UToledo.
Note: A prospective employee that requires a Change of Status (COS) will require an H-1B (I-797) Approval Notice to be received by mail prior to any granting of work authority. Please contact CISP to discuss these situations. The Extension and Portability rules stated above do NOT apply in Change of Status applications.
Go to the next section: II.1 U.S. Department of Labor and the Labor Condition Application (LCA)