January 29, 2001 --INS today issued interim travel guidance for individuals who are in valid H-1B status and who change employers upon the filing of a new H-1B petition. This guidance represents formal recognition by INS of the H portability provisions of the American Competitiveness in the Twenty-First Century Act ("AC21") adopted by Congress last October.

According to INS, an individual who is in valid H-1B status and who has changed employment upon the filing of a new H-1B petition, and who then travels outside the United States and returns prior to approval of the new H-1B petition, must meet four conditions in order to be readmitted to the United States. Berry, Appleman & Leiden's interpretation of the four conditions is as follows:

At the Port of Entry inspection, the H-1B individual must:

1. Present a valid, unexpired passport;
2. Present a valid, unexpired H-1B visa;
3. Present evidence that the individual was previously admitted in H-1B status or previously accorded H-1B status - this evidence may be in the form of a copy of the previously issued Form I-94 indicating admission in H-1B status, or a copy of Form I-797 Notice of Action (H-1B approval notice) with the original petition's validity dates.
4. Present evidence that a new H-1B petition was timely filed with an INS Service Center (e.g., a dated H-1B filing receipt notice). "Timely filed" means that the new H-1B petition must have been filed prior to the expiration of the individual's previous period of admission in H-1B status.

Important Notes:

1. An individual whose original H-1B status has expired is not admissible unless the new H-1B petition has been approved.
2. An individual who meets these requirements is admissible until the validity date of the previous H-1B petition, plus ten days.
3. An individual who has changed employers but is not in possession of a Form I-797 Approval Notice for the new H-1B petition, is not admissible unless the INS finds evidence that a new H-1B petition has been filed.
4. H-4 dependents must meet the same requirements.

This interim guidance clarifies one important aspect of the H-1B portability provisions authorized by AC21. Although many issues await resolution in the form of formal regulations, the much needed interim travel guidance described above is a significant step forward toward that end.

Click here to view or download a .pdf copy of the INS memorandum.