There are several INS memos related to the H-1B portability. Not single of them including the law its self says that H-1B portability is depending on the H-1B quota. The law says:
SEC. 105. INCREASED PORTABILITY OF H-1B STATUS
(a) IN GENERAL- Section 214 of the Immigration and Nationality Act (8 U.S.C. 1184) is amended by adding at the end the following new subsection:
`(m)(1) A nonimmigrant alien described in paragraph (2) who was previously issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) is authorized to accept new employment upon the filing by the prospective employer of a new petition on behalf of such nonimmigrant as provided under subsection (a). Employment authorization shall continue for such alien until the new petition is adjudicated. If the new petition is denied, such authorization shall cease.
`(2) A nonimmigrant alien described in this paragraph is a nonimmigrant alien--
`(A) who has been lawfully admitted into the United States;
`(B) on whose behalf an employer has filed a nonfrivolous petition for new employment before the date of expiration of the period of stay authorized by the Attorney General; and
`(C) who, subsequent to such lawful admission, has not been employed without authorization in the United States before the filing of such petition.'.
(b) EFFECTIVE DATE- The amendment made by subsection (a) shall apply to petitions filed before, on, or after the date of enactment of this Act.
INS meme says
D. AC21 105 -- Visa portability
The AC21 105 provides that a nonimmigrant who was previously issued an H-lB visa or provided H-1B nonimmigrant status may begin working for a new H-lB employer as soon as that new employer files a "nonfrivolous" H-lB petition on the nonimmigrant's behalf, if:
(a) the nonimmigrant was lawfully admitted to the United States; (b) the nonfrivolous petition for new employment was filed before the end of their period of authorized stay; and (c) the nonimmigrant has not been employed without authorization since his lawful admission to the United States, and before the filing of the nonfrivolous petition.
The status of a dependent of a principal nonimmigrant that is working pursuant to portability benefits is derivative of and linked to the status of the principal nonimmigrant. Therefore, dependents will remain in H-4 status if the principal nonimmigrant is lawfully working pursuant to portability benefits. There are four contexts in which the question of whether a nonimmigrant has lawfully worked or maintained lawful status under the 105 portability provisions may arise:
Your company laywer's response may be just for some safety.
SEC. 105. INCREASED PORTABILITY OF H-1B STATUS
(a) IN GENERAL- Section 214 of the Immigration and Nationality Act (8 U.S.C. 1184) is amended by adding at the end the following new subsection:
`(m)(1) A nonimmigrant alien described in paragraph (2) who was previously issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) is authorized to accept new employment upon the filing by the prospective employer of a new petition on behalf of such nonimmigrant as provided under subsection (a). Employment authorization shall continue for such alien until the new petition is adjudicated. If the new petition is denied, such authorization shall cease.
`(2) A nonimmigrant alien described in this paragraph is a nonimmigrant alien--
`(A) who has been lawfully admitted into the United States;
`(B) on whose behalf an employer has filed a nonfrivolous petition for new employment before the date of expiration of the period of stay authorized by the Attorney General; and
`(C) who, subsequent to such lawful admission, has not been employed without authorization in the United States before the filing of such petition.'.
(b) EFFECTIVE DATE- The amendment made by subsection (a) shall apply to petitions filed before, on, or after the date of enactment of this Act.
INS meme says
D. AC21 105 -- Visa portability
The AC21 105 provides that a nonimmigrant who was previously issued an H-lB visa or provided H-1B nonimmigrant status may begin working for a new H-lB employer as soon as that new employer files a "nonfrivolous" H-lB petition on the nonimmigrant's behalf, if:
(a) the nonimmigrant was lawfully admitted to the United States; (b) the nonfrivolous petition for new employment was filed before the end of their period of authorized stay; and (c) the nonimmigrant has not been employed without authorization since his lawful admission to the United States, and before the filing of the nonfrivolous petition.
The status of a dependent of a principal nonimmigrant that is working pursuant to portability benefits is derivative of and linked to the status of the principal nonimmigrant. Therefore, dependents will remain in H-4 status if the principal nonimmigrant is lawfully working pursuant to portability benefits. There are four contexts in which the question of whether a nonimmigrant has lawfully worked or maintained lawful status under the 105 portability provisions may arise:
Your company laywer's response may be just for some safety.
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