{4:15 minutes to read} This year there were 233,000 petitions filed for 85,000 H-1B spots. Of the 233,000 petitions filed, 148,000 petitions were returned, envelope unopened. Essentially, those cases never existed and the employer must come up with a plan B.

In the following scenarios, the employer may want to explore the possibilities of “porting” if:

— They are not going to go forward with sponsoring the specific candidate whose H-1B was returned but want to fill the position with another foreign national;

— They don’t want to sponsor the candidate for a stop-gap visa like an H-3 if H-1B was returned;

— The same candidates don’t qualify for other alternative employment visas;

— Hiring needs arise out of the H-1B filing season (essentially all year long after April 1).

In all of the above, employers can go into H-1B free agency under what’s called H-1B porting.

Who is eligible for porting?

— Everyone who’s in the U.S. currently under H-1B status; or

— Everyone who’s had H-1B status and not used their maximum 6 years.

All of the above are potential free agents and can be contracted by and port to any U.S. employer. That means if you’re a US employer, are interested in hiring someone and they are already on H-1B status here, you can sponsor them at any time. Obviously, the employer must have the candidate’s consent to apply, and must pay the prevailing wage, which is the minimum wage required based on the following:

— Position

— Experience level

— Education

— Geographic area where the candidate will work

If the candidate wants to change sponsors under H-1B, they are automatically eligible to be transferred upon approval of a new H-1B petition.

This is called porting to a new employer. You can submit a petition, and by paying the additional fee for premium processing, the petition can be approved quickly. As soon as it’s approved, the person becomes an H-1B employee of your company.

Porting is a way to bring in H-1B level talent without having to worry about a lottery and without having to worry about a cap, because once an individual has had H-1B status, even for 1 day, they’re eligible to change employers and are not subject to the H-1B cap. This means no lottery, so you can apply any time, all year. If the petition is approved that person automatically becomes your employee.

For employers who are interested in hiring H-1B talent now, H-1B porting may be the solution. If you have any questions, please feel free to call us.

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