The new H-1B visa portability

By Loretta W. Prencipe, InfoWorld |  Career

THE CHANGES TO immigration laws that went into effect on Oct. 17, 2000, are unlike
any that 21-year legal veteran Carolyn Fuchs has ever seen. H-1B worker mobility is at
the heart of this new regulation for employers, says Fuchs, an immigration attorney and
partner in the firm of Hale and Dorr, in Boston.

1. H-1B visas are now portable

"Employers might expect to see H-1B workers jump ship, going to new jobs quicker
than under the old laws," Fuchs says. Prior to enactment of the new law, H-1B visa
workers had to secure INS approval to change employers. Getting approval could take
anywhere from three months to six months after the H-1B paperwork was filed. Under the
new law, H-1B workers who are working legally, as defined by the H-1B visas, can go to
work for a new sponsoring employer as soon as the INS acknowledges receipt of the new H-
1B petition.

2. Disclose risks to H-1B workers

"The judgment call of when an H-1B employee should start working is now in the
hands of lawyers, workers, recruiters, and employers," Fuchs says. H-1B workers can go
to the new employer before the petition is approved, but this is risky, the attorney
says. If the INS denies the petition, the company must immediately terminate the new
employee. Employers control the H-1B paperwork and could, as a result, face wrongful
termination or negligence suits filed by the fired foreign national who changed jobs
before the latest petition received approval, Fuchs says.

3. Watch I-9 statements

Employers must prepare and keep a statement on file that verifies each employee's
eligibility to work in the United States. This preprinted INS statement -- the I-9 --
does not cover the new mobility of H-1B employees.

Fuchs advises clients to rethink I-9 practices and to attach documents not usually
kept with the I-9, such as a risk disclosure statement signed by the new H-1B employee
and the receipt showing the INS has the new H-1B petition.

4. Don't expect fast H-1B approvals

Despite the fact that Congress has mandated the INS to adjudicate an H-1B petition
within 30 days of the initial filing, Fuchs is not hopeful that H-1B petitions will be
approved within the new time frame in the near future. "H-1B cases currently take three
months to five months to approve. The Vermont [INS] processing time needs another 130
employees just to handle the workload with the current drag."

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