This post is for you if you moved from F-1 (OPT or STEM OPT, often through cap-gap) to H-1B and now want to change employers, add a second employer, or find a new job after your H-1B job ended.
EADly already covers the step before this. Cap-gap, the 60-day period after an H-1B job ends (with a date calculator) and the F-1 records to keep are in F-1 to H-1B: cap-gap and the grace period. Registration and selection are in the H-1B lottery guide. This post covers what those pages don't: when portability lets you start a new job, whether the cap applies again, which filing is which, what happens after the decision, travel while the petition is pending, and the records to keep.
Not legal advice. This article summarizes official U.S. government sources. It is not legal or immigration advice. Whether portability applies to you depends on your status, your dates and the petition, and your new employer or its attorney files the petition. EADly is not a law firm and is not affiliated with USCIS, DHS or DOL. Last checked October 22, 2026. Each source's own date is in the Sources list.
What H-1B portability means
Portability is the rule that lets an H-1B worker start with a new employer before USCIS decides the new employer's petition.
The statute. Section 214(n) of the Immigration and Nationality Act says an H-1B worker described in it "is authorized to accept new employment upon the filing by the prospective employer of a new petition". It adds: "Employment authorization shall continue for such alien until the new petition is adjudicated. If the new petition is denied, such authorization shall cease." (8 U.S.C. 1184(n))
The regulation. "An eligible H-1B nonimmigrant is authorized to start concurrent or new employment under section 214(n) of the Act upon the filing, in accordance with 8 CFR 103.2(a), of a nonfrivolous H-1B petition on behalf of such alien, or as of the requested start date, whichever is later." (8 CFR 214.2(h)(2)(i)(H))
USCIS, in plain words. "If you are changing H-1B employers, you may begin working for the new employer as soon as they properly file a non-frivolous Form I-129 petition on your behalf, or as of the requested start date on that petition, whichever is later." (USCIS, H-1B Specialty Occupations)
The three conditions, word for word
The regulation defines an "eligible H-1B nonimmigrant" as someone who meets all three conditions below (8 CFR 214.2(h)(2)(i)(H)(1)):
| Condition | Regulation text | Statute text, INA 214(n)(2) |
|---|---|---|
| 1. Admission or status | "Who has been lawfully admitted into the United States in, or otherwise provided, H-1B nonimmigrant status" | "who has been lawfully admitted into the United States" |
| 2. Timely, nonfrivolous filing | "On whose behalf a nonfrivolous H-1B petition for new employment has been filed, including a petition for new employment with the same employer, with a request to amend or extend the H-1B nonimmigrant's stay, before the H-1B nonimmigrant's period of stay authorized by the Secretary of Homeland Security expires" | "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" |
| 3. No unauthorized work | "Who has not been employed without authorization in the United States from the time of last admission through the filing of the petition for new employment" | "who, subsequent to such lawful admission, has not been employed without authorization in the United States before the filing of such petition" |
USCIS puts conditions 2 and 3 this way: "you must not have been employed without authorization from the time of your last admission into the United States, and your new employer must properly file a new, non-frivolous petition before your H-1B period of authorized stay expires" (USCIS, H-1B Specialty Occupations).
What "filed" means here
- USCIS records the receipt date "as of the actual date of receipt at the location designated for filing," whether the filing is electronic or on paper (8 CFR 103.2(a)(7)(i)).
- "A benefit request which is rejected will not retain a filing date" (8 CFR 103.2(a)(7)(ii)).
- The new employer needs a certified Labor Condition Application first. USCIS's filing steps say the "DOL-certified LCA should also be submitted with the Form I-129" (USCIS, H-1B Specialty Occupations).
Does portability apply while you're still on F-1 cap-gap?
The regulation's first condition is about H-1B status. During cap-gap you are still in F-1 status: the regulation says an eligible F-1 student's "duration of status" and OPT work permission are "automatically extended until April 1 of the fiscal year for which such H-1B status is being requested or until the validity start date of the approved petition, whichever is earlier" (8 CFR 214.2(f)(5)(vi)(A)).
The regulation doesn't describe portability for a student in that position, and EADly's app applies portability only to workers already in H-1B status. Two more rules matter if you want to change jobs before your H-1B start date:
- Your selection stays with the employer that registered you. "A petitioner may not substitute the beneficiary named in the original registration or transfer the registration to another petitioner" (8 CFR 214.2(h)(8)(iii)(D)(1)).
- Cap-gap ends if that petition is withdrawn. It ends "upon the rejection, denial, revocation, or withdrawal of the H-1B petition" (8 CFR 214.2(f)(5)(vi)(B)). What USCIS says about a layoff between approval and the H-1B start is in Laid off after approval but before H-1B starts.
If you are in this situation, talk to your DSO and an immigration attorney before you resign or accept an offer.
Will the new employer's petition count against the H-1B cap again?
Official sources say a worker already counted generally isn't counted again, with exceptions:
- The statute. "Any alien who has already been counted, within the 6 years prior to the approval of a petition described in subsection (c), toward the numerical limitations of paragraph (1)(A) shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed." (INA 214(g)(7), 8 U.S.C. 1184(g)(7))
- The regulation. A new employer files a petition "requesting classification and an extension of the alien's stay" (8 CFR 214.2(h)(2)(i)(D)), and "Requests for petition extension or extension of an alien's stay shall not be counted for the purpose of the numerical limit" (8 CFR 214.2(h)(8)(ii)(A)).
- USCIS. In its fiscal year 2026 cap notice: "Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, are exempt from the FY 2026 H-1B cap." It listed petitions to "Allow current H-1B workers to change employers" among those it keeps accepting (USCIS, Reaches FY 2026 H-1B Cap). The FY 2027 cap notice (07/17/2026) says only that the cap was reached and doesn't repeat this sentence.
- Exception: cap-exempt jobs. "If you are moving from cap-exempt to cap-subject employment, your new employer's H-1B petition will be subject to the H-1B cap" (USCIS, H-1B Specialty Occupations). The regulation says that when cap-exempt employment ends, the worker is "subject to the cap if not previously counted within the 6-year period of authorized admission to which the cap-exempt employment applied" (8 CFR 214.2(h)(8)(iii)(F)(5)).
Whether you were counted depends on how your earlier H-1B petitions were filed. The new employer's attorney checks this.
Change of employer, concurrent job or amendment: which filing is which?
All of these use Form I-129. The Form I-129 instructions (edition 09/09/26, "Basis for Classification") describe the boxes in Part 2, Item 2:
| Your situation | Box on Form I-129 | What the instructions say |
|---|---|---|
| A new employer, same H-1B classification | E. Change of employer | "to begin employment working for a new employer in the same nonimmigrant classification that the beneficiary currently holds" |
| A second H-1B employer while you keep your current job | D. New concurrent employment | "with an additional employer in the same nonimmigrant classification ... while the beneficiary will continue working for his or her current employer in the same classification" |
| Same employer, material change | F. Amended petition | "to notify USCIS of a material change in the terms or conditions of employment or training or the beneficiary's eligibility as specified in the original approved petition" |
| Same employer, non-material change | C. Change in previously approved employment | "a non-material change to the previously approved employment such as a change in job title without a material change in job duties" |
| Same employer, same job, more time | B. Continuation of previously approved employment without change with the same employer | "there has been no change to the employment" |
Amendments with the same employer
- An amended or new petition "must be properly filed before the material change(s) takes place" (8 CFR 214.2(h)(2)(i)(E)(2)).
- "The beneficiary is not authorized to work under the materially changed terms and conditions of employment until the new or amended H-1B petition is approved and takes effect, unless the beneficiary is eligible for H-1B portability" (same paragraph).
- A move to a worksite that needs a new certified LCA "is considered a material change." The same paragraph lists cases that don't need a new petition when nothing else changes: a new location in the same area of intended employment, some short-term placements, and some non-worksite or traveling ("peripatetic") jobs.
- USCIS: if your current employer "properly files a non-frivolous Form I-129 requesting new employment or a change of employment on your behalf, you are authorized to work according to the terms of the new or changed employment once that petition is filed, or as of the requested start date on that petition, whichever is later" (USCIS, H-1B Specialty Occupations).
Your employer or its attorney decides whether a change is material.
If your H-1B job ended: filing within the 60-day period
The regulation gives H-1B workers a discretionary period of "up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter, once during each authorized validity period." Unless otherwise authorized, "the alien may not work during such a period" (8 CFR 214.1(l)(2)). USCIS describes it as time "to find new employment, change status, or depart the country" (USCIS, H-1B Specialty Occupations). How the period starts, and a date calculator, are in Part 2 of our cap-gap post.
What official sources say about a new employer filing during that period:
- "An alien in any authorized period described in paragraph (l) of this section may apply for and be granted an extension of stay ... if otherwise eligible" (8 CFR 214.1(l)(3)).
- In the 2016 final rule that created the 60-day period, DHS wrote that a worker in the period "may also commence employment under H-1B portability ... if otherwise eligible," and that even when the earlier job ended "several weeks prior to the filing of the new petition, DHS may consider such an individual to have not violated his or her nonimmigrant status" (81 FR 82398, at 82436).
- USCIS's archived termination page says an eligible H-1B worker "can begin work immediately after USCIS receives the petition," and that the period "ends upon any departure from the United States" (USCIS, archived). USCIS has marked that page out of date, so treat it as background.
A fictional example
This example is fictional. The dates were computed with a script.
- Ravi's last day worked and paid at his first H-1B employer is Friday, February 26, 2027. His I-797A and I-94 run to September 30, 2028.
- Day 1 of the period is February 27. Day 60 is Tuesday, April 27, 2027. That is earlier than September 30, 2028, so it is the outer date.
- His new employer's petition reaches USCIS on Monday, April 5, 2027, with a requested start date of Monday, April 12, 2027.
- The regulation's "whichever is later" date is April 12, 2027. Under the portability rule, that is the earliest start date, and only if he meets the three conditions above.
If his validity end had come first (say a last day of August 18, 2028 with an end date of September 30, 2028), the outer date would be September 30, 2028, not day 60 (October 17, 2028).
What happens when USCIS decides the petition
- Portability ends at the decision. Work authorized under portability "automatically ceases upon the adjudication of the H-1B petition" (8 CFR 214.2(h)(2)(i)(H)(2)).
- If approved: "you may continue working for the new employer for the period of time indicated on the new petition approval" (USCIS, H-1B Specialty Occupations). The extension of stay "may be granted for the validity of the approved petition" (8 CFR 214.2(h)(2)(i)(D)).
- If denied: "you may continue working for your previous employer if your prior period of authorized employment is still valid, but your authorization to work based on portability ceases upon denial of the petition" (USCIS, H-1B Specialty Occupations).
- A second change while the first is pending ("bridge" petitions). The regulation allows another portability filing while an earlier one is pending, but an amendment or extension in a later petition "cannot be approved if a request to amend the petition or for an extension of stay in any preceding H-1B portability petition in the succession is denied," unless your earlier approved H-1B status is still valid (8 CFR 214.2(h)(2)(i)(H)(3)).
The approval notice and your new I-94
USCIS describes its notices this way (USCIS, Form I-797: Types and Functions):
- I-797A: "Issued to an applicant as a replacement Form I-94."
- I-797B: "Issued for approval of an alien worker petition."
- I-797C: issued "to communicate receipt or rejection" and other actions. This is the receipt notice.
Check which approval notice you got, and keep the I-94 that comes with an I-797A. To find your most recent I-94 after a trip, see the I-94 guide.
Form I-9 at the new employer
USCIS's Handbook for Employers says the new employer must "complete a new Form I-9." Your "unexpired Form I-94 issued for employment with the previous employer, along with their foreign passport, qualifies as a List A document," and the employer should "write 'AC-21' and enter the date you submitted Form I-129 to USCIS" (USCIS, M-274 section 7.5).
Family members
The new employer's petition covers you, not your H-4 spouse or children. The Form I-129 instructions say: "Dependent family members should use Form I-539 to file for an extension of stay" (I-129 instructions).
Checking the case
Ask the employer or its attorney for copies of the receipt and approval notices, and check the receipt number on USCIS Case Status Online. For timing, use USCIS's official processing times page, which changes over time. USCIS says: "We do not research the status of cases that are within the expected processing times" (USCIS, While My Case is Pending). That page also links to the online tool to "Ask about a case taking longer than expected."
Traveling while a change-of-employer petition is pending
DHS has said travel is possible while the petition is pending, with conditions. In the 2016 final rule, DHS wrote (81 FR 82398, at 82440 to 82441):
- "DHS has long acknowledged that otherwise admissible H-1B nonimmigrants may travel and be admitted in H-1B status while H-1B portability petitions on their behalf are pending. However, individuals requesting admission as H-1B nonimmigrants must prove at the port of entry that they are eligible for admission in that status."
- If the original petition "has expired prior to the time that the beneficiary seeks admission ... or if such petition is otherwise no longer valid, the beneficiary must present evidence that USCIS has approved a new H-1B petition."
- If the original petition hasn't expired, the person "may be admissible if," besides "a valid passport and visa (unless visa-exempt)," they show "a copy of the previously issued Form I-94 or Form I-797 approval notice for the original H-1B petition" and "a Form I-797 receipt notice demonstrating that the new H-1B petition requesting an amendment or extension of stay was timely filed."
- "The inspecting officer at the port of entry will make the ultimate determination."
This is from the rule's preamble, not the regulation text. Two more cautions:
- During the 60-day period, USCIS's archived page says the period "ends upon any departure from the United States" (USCIS, archived).
- The $100,000 payment proclamation. USCIS's H-1B page says that, for petitions filed since 12:01 a.m. Eastern on Sept. 21, 2025, the payment applies if USCIS finds a person ineligible for a requested change of status, amendment or extension of stay, "for example, is not in a valid nonimmigrant visa status or if the alien departs the United States prior to adjudication of a change of status request." The same page says a federal court vacated the agency guidance implementing the payment on June 8, 2026, and that DHS "will comply with the court's order while DHS considers next steps" (USCIS, H-1B Specialty Occupations). Details: H-1B lottery guide.
Ask your new employer's attorney before you book a trip while the petition is pending.
Records to keep through a job change
| Record | Why | Official basis |
|---|---|---|
| The new employer's I-797C receipt notice | Shows when the petition was filed. DHS lists it among the documents for re-entry while the petition is pending | 81 FR 82398 |
| Every I-797A or I-797B approval, from every employer | Each period of status and each extension | USCIS, Form I-797 types; I-485 instructions |
| Every I-94, CBP or attached to an I-797A | An extension-of-stay petition "must be filed with a copy of the beneficiary's Form I-94" | I-129 instructions |
| Your last 2 pay stubs and most recent W-2 | The same instructions ask for "A copy of the beneficiary's last 2 pay stubs and most recent W-2, if applicable" | I-129 instructions |
| A separation letter with your last day worked and last day paid | The archived page says the 60-day period typically starts based on "the last day for which a salary or wage is paid" | USCIS, archived |
| Offer letters and your job duties for each H-1B job | Practical record of each position (not an official list) | None stated |
Keep your F-1 records too. The Form I-485 instructions ask many green card applicants for "Form I-797, Notice of Action, for all extensions of stay and changes of nonimmigrant status." The full F-1 list is in Part 3 of our cap-gap post.
Keeping petitions straight in EADly
EADly is a private, local-first app for iPhone and Android:
- H-1B petitions by purpose. Save each petition as a change of employer, an added employer while you keep your current job, an amendment or a renewal, with its receipt number, filing and receipt dates, and approved validity dates. For a change of employer or added employer, EADly reminds you to review work-start eligibility with the employer or attorney.
- I-797A and I-797B kept apart. EADly never treats an I-797B as an I-94.
- Employment-end review. After you record an H-1B job end, EADly shows the earliest of 60 days after that date, the petition validity end and the I-94 Admit Until date. A pending change-of-employer petition is named in the review. It is not a status decision.
- Something changed? The job-change checklist lists the new-petition and portability rules with their sources.
- USCIS receipts. Saved receipt numbers open the official USCIS Case Status page. EADly doesn't fetch status itself.
EADly Free saves one H-1B job per petition period and one Vault document; EADly Plus adds more. It's a free download.
What it doesn't do: EADly doesn't decide whether portability applies, whether you may start work, or whether a change is material, and it doesn't file anything with USCIS.
Get EADly on the App Store or Google Play.
Common questions
When can I start working for a new H-1B employer?
USCIS says an eligible H-1B worker can start once the new employer properly files a nonfrivolous Form I-129, or on the requested start date if that is later. The regulation requires that you were lawfully admitted in, or otherwise provided, H-1B status, that the petition is filed before your authorized stay expires, and no unauthorized work since your last admission.
Does H-1B portability apply during cap-gap?
During cap-gap you are still in F-1 status, and the portability rule describes people in H-1B status. A selected registration also can't be transferred to another employer. Talk to your DSO and an immigration attorney before changing jobs before your H-1B start date.
Will I go through the H-1B lottery again if I change employers?
The statute says a worker already counted within the 6 years before approval "shall not again be counted," with an exception, and USCIS said in its FY 2026 cap notice that petitions for current H-1B workers counted previously, who still retain their cap number, are exempt from the cap. Moving from a cap-exempt job to a cap-subject job is different. The new employer's attorney checks this.
What is the difference between a change of employer and an amended petition?
A change of employer is a new employer's petition for the same classification. An amended petition is your current employer's filing for a material change, and it must be filed before the change takes place.
Can a new employer file during my 60-day period after a layoff?
The regulation allows an extension of stay to be requested during that period, if otherwise eligible, and DHS wrote in 2016 that portability can also apply. The period is discretionary and doesn't allow work by itself, and USCIS's archived page says it ends when you leave the United States.
What happens if the new petition is denied?
Work based on portability ends. USCIS says you may keep working for your previous employer only if your prior period of authorized employment is still valid.
Can I travel while my change-of-employer petition is pending?
DHS has said H-1B workers may travel and be admitted while a portability petition is pending, but they must prove eligibility at the port of entry, and the documents depend on whether the original petition is still valid. Ask the employer's attorney first.
Sources
All checked October 22, 2026. The date in brackets is the date each page showed.
- INA 214(g)(7) and 214(n), 8 U.S.C. 1184, United States Code (2023 edition): https://www.govinfo.gov/content/pkg/USCODE-2023-title8/html/USCODE-2023-title8-chap12-subchapII-partII-sec1184.htm [checked October 22, 2026]
- 8 CFR 214.2(f)(5)(vi), (h)(2)(i)(D), (E) and (H), (h)(8)(ii)(A), (h)(8)(iii)(D)(1) and (F)(5), eCFR as of Sept 14, 2026: https://www.ecfr.gov/on/2026-09-14/title-8/chapter-I/subchapter-B/part-214/subpart-A/section-214.2 [checked October 22, 2026; the quoted paragraphs read the same in the current eCFR. We cite the Sept 14 version because USCIS says it will proceed under the previous regulatory provisions after a court postponed the July 17, 2026 rule: https://www.uscis.gov/i-765]
- 8 CFR 214.1(l)(2) and (l)(3), eCFR as of Sept 14, 2026: https://www.ecfr.gov/on/2026-09-14/title-8/chapter-I/subchapter-B/part-214/subpart-A/section-214.1 [checked October 22, 2026; same text in the current eCFR]
- 8 CFR 103.2(a)(7), eCFR as of Sept 14, 2026: https://www.ecfr.gov/on/2026-09-14/title-8/chapter-I/subchapter-B/part-103/section-103.2 [checked October 22, 2026]
- USCIS, H-1B Specialty Occupations: https://www.uscis.gov/working-in-the-united-states/h-1b-specialty-occupations [last reviewed 09/21/2026; checked October 22, 2026]
- USCIS, USCIS Reaches Fiscal Year 2026 H-1B Cap: https://www.uscis.gov/newsroom/alerts/uscis-reaches-fiscal-year-2026-h-1b-cap [last reviewed 07/18/2025; checked October 22, 2026]
- USCIS, USCIS Reaches Fiscal Year 2027 H-1B Cap: https://www.uscis.gov/newsroom/alerts/uscis-reaches-fiscal-year-2027-h-1b-cap [last reviewed 07/17/2026; checked October 22, 2026]
- USCIS, Instructions for Form I-129: https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf [edition 09/09/26, listed as current on uscis.gov/i-129 (reviewed 10/07/2026); the posted PDF carries a 'Draft Not for Production' watermark; checked October 22, 2026]
- Federal Register, Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers (final rule), 81 FR 82398: https://www.federalregister.gov/documents/2016/11/18/2016-27540/retention-of-eb-1-eb-2-and-eb-3-immigrant-workers-and-program-improvements-affecting-high-skilled [published 11/18/2016; effective 01/17/2017; checked October 22, 2026]
- USCIS (archived), Options for Nonimmigrant Workers Following Termination of Employment: https://www.uscis.gov/archive/options-for-nonimmigrant-workers-following-termination-of-employment-0 [last reviewed 01/24/2025; marked archived; checked October 22, 2026]
- USCIS, Form I-797: Types and Functions: https://www.uscis.gov/forms/filing-guidance/form-i-797-types-and-functions [last reviewed 01/24/2025; checked October 22, 2026]
- USCIS, Handbook for Employers M-274, 7.5 H-1B Specialty Occupations: https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274/70-evidence-of-employment-authorization-for-certain-categories/75-h-1b-specialty-occupations [last reviewed 07/26/2023; checked October 22, 2026]
- USCIS, While My Case is Pending: https://www.uscis.gov/tools/while-my-case-is-pending [last reviewed 10/30/2025; checked October 22, 2026]
- USCIS, Check Case Processing Times: https://egov.uscis.gov/processing-times/ [linked, not quoted; could not be checked by automated request on October 22, 2026]
- USCIS, Case Status Online: https://egov.uscis.gov/ [linked, not quoted; could not be checked by automated request on October 22, 2026]
- USCIS, Instructions for Form I-485: https://www.uscis.gov/sites/default/files/document/forms/i-485instr.pdf [edition 09/18/26; checked October 22, 2026]
This article summarizes official U.S. government sources and is not legal or immigration advice. EADly is not a law firm and is not affiliated with USCIS, DHS or DOL.