Columbus H-1B Lawyer: Hiring a Worker Presently in H-1B Status (Part 2)

Effect of approval notice gaps on portability Porting under INA § 214(n) does not require that the alien currently be in H-1B status, as long as he or she is in a “period of stay authorized by the Attorney General.”
Alien is in H-1B status. Employer A timely files a non-frivolous extension of the alien’s H-1B status. Alien’s original petition, approved for Employer A, expires during the pendency of the extension. Alien is then in a “period of stay as authorized by the Attorney General” while Employer A’s extension is pending. Employer B then files new petition and alien wants to port to Employer B. Under INA § 214(n), the alien should be permitted to port because he or she is in a “period of stay as authorized by the Attorney General.”
USCIS memo HQPRD 70/6.2.8-P, Wm Yates, May 12, 2005 DHS interim guidance also states that “bridging” is possible (successive H-1B portability petitions filed for an alien while the previous H-1B petitions remain pending), but in such cases, every H-1B portability petition must separately meet the requirements for H-1B classification and extension of stay. If a petition in the “bridge” is denied, complications will arise:
In the event the alien’s nonimmigrant status has expired while the petitions are pending, the denial of any filing in the string of extension of stay and/or change of status filings undercuts 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.