Your readers should note that the USCIS Employer Bulletin Information On Alien Employment Authorization contains some incomplete and potentially misleading information regarding documenting employment authorization for H-1B job applicants who are moving to new H-1B employment. Under the heading "temporary, restricted employment (employer-specific), "in reference to form I-94, the memo states: "A stamp indicating a nonimmigrant admission means that the alien may work for the approved employer(s) and for no other employer(s) until expiration of the indicated period of approved stay. Therefore, only US employers whose petitions to employ these aliens have been approved by the [DHS, USCIS] may accept this documentation to satisfy employment eligibility verification requirements of Form I-9." The memo fails to mention that Section 105 of the American Competitiveness in the Twenty-First Century Act, which became effective October 17, 2000, provides for "portability" and permits certain H-1B non-immigrants to begin new employment upon the filing of an H-1B petition with the USCIS. As evidence of employment authorization, an employer may record the file number from the BCIS filing receipt under the "other" category from List C (7), and when the actual approval is received, the I-9 can then be updated. Attached to the I-9 should be the current H-1B approval notice or I-94 for the former employer, as well as the new H-1B filing receipt. Previously, an H-1B worker could not take up employment with a different employer until a new H-1B application was both filed and approved by BCIS. Only current H-1B holders seeking a change in employers and who meet the requirements of INA 214(m)(2) - i.e., been lawfully admitted to the US, being identified as the beneficiary of a non-frivolous petition for new employment filed before the expiration of his/her authorized period of stay, and having no unauthorized employment in the US since his/her lawful admission but before the filing of such petition - will benefit from the grant of immediate work authorization; this provision does not apply to other temporary worker categories or to individuals seeking an initial grant of H-1B status.
Josie Gonzalez, Gonzalez & Harris
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