An Cap-subject and cap-exempt (H-1B)The H-1B category has an annual limit of 65,000 new visas or statuses per fiscal year, plus 20,000 more for people with a U.S. master's degree or higher. Petitions counted toward that limit are cap-subject. Petitions from higher education institutions, their related or affiliated nonprofits, and nonprofit or governmental research organizations are cap-exempt.See it in the glossary worker can change employers, but the visa does not move with the worker. The new employer must obtain a certified Labor Condition Application (LCA)A Department of Labor form, ETA-9035, that an employer files before petitioning for an H-1B, H-1B1 or E-3 worker. In it the employer attests to standards on wages, working conditions, labor disputes and notice to workers. A certified LCA is then used to support the petition filed with USCIS.See it in the glossary and file a new H-1B petition. Under the rule known as portability, a worker who meets the conditions may begin the new job when the petition is filed, without waiting for approval.
What portability requires
The portability provision comes from section 214(n) of the Immigration and Nationality Act and is implemented in the H-1B regulations. In general, the worker must have been lawfully admitted, the new petition must be non-frivolous and filed before the current authorized stay ends, and the worker must not have worked without authorization since admission. Even a short stretch of unauthorized work can defeat portability.
Who it does not help
Portability is for people already in H-1B status. A student or dependent applying to change status to H-1B for the first time generally must wait for approval before working under H-1B. It also does not create a new visa stamp. If you travel abroad, you may need a stamp reflecting the new employer, and a pending petition can complicate re-entry.
The risk while the petition is pending
Starting work on filing is a right that depends on the petition. If USCIS denies it, the authorization to work for that employer generally ends, and the person’s remaining status depends on the rest of the record. Some employers prefer to wait for the receipt notice before starting. Keep proof of filing, since the employer must verify work authorization on Form I-9.
Cap and fee questions
A worker who has already been counted against the H-1B cap does not need to win the lottery again for a change of employer. Fees still apply, and the employer bears them, as outlined in our cost guide. The $100,000 proclamation payment is aimed at workers outside the United States, and the text does not announce a general charge on changes of employer, according to our report on the extension.
If a layoff comes first
A worker who loses a job may have a limited grace period, and a new employer’s petition must still be filed within it. See our layoff guide. For the category itself, read the H-1B visa overview.