The handbook now states that an employee in valid H-1B status who changes (ports) to a new employer can begin to work with the new employer upon filing an H-1B petition with USCIS. The prior version of the handbook required the porting H-1B employee to obtain a Form I-797 (Receipt Notice) from USCIS before beginning work with the new employer. This approach created considerable delay because it often takes USCIS weeks to issue the official I-797. The new requirement is more consistent with INA § 214(n), which requires only a “filing,” and this can be proved through an overnight courier delivery confirmation rather than waiting for the I-797 receipt notice.
The new version of the handbook explains that a porting H-1B employee may begin employment by presenting his or her Form I-94/I-94A (Arrival-Departure Record) issued for employment with the previous employer, along with his or her foreign passport, as a List A document. The employer should write "AC21" on the I-9, record the date that the new H-1B petition was submitted to USCIS in the margin next to Section 2 of the I-9, and attach documentation as specified in the handbook.
Unfortunately, there is another aspect of portability that still remains unresolved. INA § 214(n) is broad enough to allow an H-1B worker to exercise portability even though he or she changed to another status. Thus, one who originally entered in H-1B status and then changed to F-1 student status can still “port” to a new job if a new employer files a petition for H-1B status, along with a request for change of status from F-1 to H-1B. In Keeping Track: Select Isues In Employer Sanctions and Immigration Compliance by Gary Endelman and Cyrus D. Mehta, http://www.cyrusmehta.com/News.aspx?SubIdx=ocyrus20101218204951&Month=&From=Menu&Page=2&Year=All#_ftn2, the authors make the following observation:
What does E-Verify have to say about work authorization during H-1B portability?