"A Moveable Feast": New and Old Portability under AC21 § 105
"If you are lucky enough to have lived in Paris as a young man, then wherever you go for the rest of your life, it stays with you, for Paris is a moveable feast."1
Hemingway's Paris is likely not what Congress envisioned when it contemplated increased mobility for employees working in the United States under the employment-based H-1B visa. Nevertheless, the enactment of the American Competitiveness in the Twenty-First Century Act (AC21)2 has evoked a new sense of freedom in the business world since foreign workers and their prospective employers may now enjoy a "moveable feast" in AC21's H-1B portability provisions. As most readers know, AC21 provides greater flexibility for workers in H-1B status to change employers, and allows workers whose adjustment of status applications have been pending for 180 days or more to change to positions in the same or similar job classifications as their current positions. Humbly inspired by "Papa" Hemingway's lively account of life in Paris, the authors of this multi-part article3 will delve into the joy and perhaps the sorrow that AC21's portability provisions may bring for employers, employees, and immigration lawyers.
When Congress suddenly authorized portability, many immigration practitioners were pleasantly surprised that a new day had dawned on employee movement. In reality, numerous forms of employee mobility have existed in a variety of settings under the immigration laws. For example, professional athletes who have entered the United States under either O-1 or P-1 status and who are traded from one sports organization to another are accorded interim employment authorization with the new team for up to 30 days after the trade occurs.4 During that time, the new team must file a new Form I-129. If the petition is timely filed, the athlete is deemed to be in valid O-1 or P-1 status, and "employment shall continue to be authorized, until the petition is adjudicated."5 Other examples of employee mobility involve the ability to engage in appropriate concurrent employment when multiple petitions have been filed6 and INS regulations in the academic environment.7 Workers who enter the United States pursuant to consulting services agreements also enjoy a form of mobility,8 as do intracompany transferees who are accorded status under a blanket L-1.9
This listing of various forms of portability continues with a reminder that H-1B workers have always been permitted to change employment, and in that sense, have been "portable", albeit sometimes at a tortoise's pace. Thus, prior to enactment of § 105, these workers were previously required to wait until the Immigration and Naturalization Service (INS) approved a new petition.10 Moreover, when an employee files an application for adjustment of status (AOS), he or she is able to apply for an employment authorization document (EAD),11 the approval of which allows the worker to engage in "open market" employment.12 Finally, the portability parade marches forward with another new law. Under § 401 of the new Visa Waiver Permanent Program Act (VWPPA), corporate restructurings provide additional opportunities for portability.13 This new law states that an amended H-1B petition is not required where "the petitioning employer is involved in a corporate restructuring, including but not limited to a merger, acquisition, or consolidation, where a new corporate entity succeeds to the interests and obligations of the original petitioning employer and where the terms and conditions of employment remain the same but for the identity of the petitioner."14
As these examples illustrate, the concept of worker mobility is not new, but rather an evolving principle of allowing ways for foreign workers to change employment in a diverse set of circumstances. While the portability provisions of AC21 have little legislative history, legal issues associated with employee mobility have existed in immigration law and are the tapestry against which AC21 can be examined. The available legislative history that does exist clarifies certain policies Congress believed were important in passing a law that would increase worker mobility.
A WORD OF CAUTION BEFORE THE JOURNEY
Attorneys, employers and foreign workers should exercise care in deciding whether to take immediate action based on the portability provisions of AC21. Agency guidance to date has been informal, inconsistent and not fully developed.15 Some practitioners are waxing enthusiastic over the new law,16 but employers and their legal counsel should be cautious. In then-President Bill Clinton's statement accompanying the signing of AC21, he expressed reservations regarding portability provisions (as well as the new authorization to extend H-1B stays beyond six years) based on a concern that these provisions "could weaken existing protections that ensure that the H-1B program does not undercut the wages and working conditions of U.S. workers and could also increase the vulnerability of H-1B workers to any unscrupulous employers using the program."17 President Clinton directed the INS, in consultation with the Departments of State and Labor, to monitor closely the impact of these new benefits.18
As a result, lawyers and their clients should proceed with extreme caution in individual cases, while recognizing that an attorney-client relationship may be imputed by law in many states with respect to at least two clients (the entity and the individual alien, and perhaps the family members as well). In light of the sparse legislative history, lawyerly arguments made to government agencies in connection with proposed rulemaking can be quite expansive and creative. In advising actual clients, however, attorneys must be particularly cautious. Under circumstances that offer no other alternatives, if a client is willing to adopt aggressive interpretations (with full disclosure and informed written consent), the client may decide to invoke portability, but the attorney must clearly communicate that the issue may ultimately require resolution in the courts. Clients must, therefore, be prepared to defend their position in litigation.19
© Copyright 2001 Paparelli & Partners LLP. Published with permission.
1 This is a quote from Ernest Hemingway to a friend, quoted in A.E. Hotchner, Papa Hemingway: A Personal Memoir (Carroll & Graf Publisher 1999). This quote provided the basis for and encapsulates the spirit of the posthumously published A Moveable Feast, Hemingway's account of his time in Paris in the 1920s (Simon & Schuster 1996).
About The Author
Angelo A. Paparelli, Certified as a Specialist in Immigration and Nationality Law by the State Bar of California, Board of Legal Specialization, has been practicing business-sponsored immigration law for over 20 years. He is the managing partner of Paparelli & Partners LLP, a nine-lawyer firm in Irvine, California that practices exclusively immigration and nationality law. Mr. Paparelli is a nationally recognized speaker, published author and leading expert on cutting-edge business-related immigration issues, including the immigration consequences of mergers, acquisitions, reorganizations and other business changes, consular visa practice, audits of employers' compliance with immigration and labor regulations, and employment based work visas. His experience also includes the U.S. immigration aspects of international tax and estate planning. From 1991 to 1996, Mr. Paparelli served as co-Chairman of the Immigration and Nationality Law Committee of the American Bar Association's Section on International Law and Practice. He also served from 1988 to 1994 as an elected governor on the Board of Directors of the American Immigration Lawyers Association. He is named in the 1990-2001 editions of Best Lawyers in America under the specialization category of Immigration Law. Mr. Paparelli can be reached at firstname.lastname@example.org.
Janet J. Lee is an associate at Paparelli & Partners LLP. Ms. Lee is admitted to practice law in the State of California. Before joining the firm she served as Executive Editor of The Labor Letters, Inc. from 1997 to 2000. She can be reached at email@example.com.