Attorney Summary of INS Guidance on AC21
The INS has issued initial guidance for H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act, (Public Law 106-313, also known as "AC21") which we've posted in full on our site. We urge you to read the memorandum itself in addition to our annotated version which follows. What we provide below is excerpts from the memo and our interpretations. However, with the regulations still not available, we urge you to err on the side of caution in making any decisions based on the newly-enacted law.
You may have heard the commotion (and perhaps conflicting information) about the new guidance issued by the INS regarding the H-1B portability law. Doing our part as your handy immigration law sleuths, we've sorted through the evidence, and now gladly present what we've deduced from it all. Let's begin.
Section 104(c): "One-Time Protection" Benefits, Extension of H-1B Status Permitted Where Adjustment Pending Under Per Country Limitations
This is great news for H-1B holders who have had their I-140 approved, but have been unable to adjust status due to the demand for permanent residency status for nationals from their home country being in excess of the per-country limitations. Rather than having to leave the U.S. upon expiration of their six years in H-1 status and wait abroad for their priority date to become current, a qualified H-1B holder who has had an employment-based I-140 approved may now request an extension of his or her H-1B status until a decision is made on his or her application for adjustment of status.
An interesting point: extensions under this section will be made in increments of three years. Also, this guidance provides that the extension can be requested "until a decision is made" on the I-485 (adjustment application).
Section 105: VISA PORTABILITY
This is one of the two provisions causing the most questions.
Here some of the questions we've received from people wondering if they meet the requirements to file a transfer petition and go to work for the new employer upon receipt of the proof of filing and the relevant guidance provided by the INS.
What if my first H-1B was approved but I never went to work for the first employer? Or how long do I have to work for Company A before Company B can file a transfer?
The guidance states that you must have been "previously issued an H-1B visa or provided H-1B non-immigrant status." The need for recent proof of employment by the original H-1B employer when filing for the transfer would seem to preclude someone who had never actually begun their employment from filing a transfer, but it can't be said with absolute certainty that there's no room for exception under the language. In answer to these questions, we'll say you really should work at least for ONE pay period to get your foot in the door for the transfer. But we'll have to see what the regulations say as to whether mere issuance of the H-1B visa will accomplish this.
What if my first H-1B is pending?
This is not such a good case. It is pretty clear here, again, "previously issued" or "provided H-1B status."
What if I am no longer in H-1B status because I left my job or just got laid off?
The outlook in this situation is much better. The guidance indicates the Service's intention to give this person "some reasonable period of time such as 60 days after leaving the initial H-1B employer to begin working for a new H-1B petitioning employer." However, the guidance further provides that this information is released for "informational purposes" only, and should not be used as a standard for adjudication until the regulations are published.
What if I was in H-1B status before, but now I'm in a different status or outside of the US?
Here again, the guidance says the Service should consider whether there has only been a reasonable lapse since the H-1B employment (approximately 60 days). If the person has been in a different status or out of the U.S. for much longer than that, then a transfer will likely be unavailable. However, this suggestion is also followed by a statement that says it is for "informational purposes" only.
And THEN there are the travel issues...
According to this guidance and in line with earlier answers from the INS, re-admission to the U.S. after filing an H-1B transfer petition under this section will require that the person is otherwise admissible, and that they possess a valid, unexpired passport and visa.
(If this is you, REMEMBER: YOU CAN ONLY BE RE-ADMITTED BASED ON THE TRANSFER PETITION IF THERE IS TIME REMAINING ON YOUR ORIGINAL VISA (plus a 10 day allowance). The same goes for dependents. All entrants will need to show proof of their previous entry in H status or approval for that status and a copy of the receipt notice for the filing of the transfer petition.
Section 106: "Special Provisions in Cases of Lengthy Adjudication
OK, so we have (discussed above) a section for H-1B (and dependent) extensions beyond the sixth year in three year increments while an immigrant with an approved I-140 application waits for their turn to become an adjustee. NOW here's an additional occasion on which H status may be granted in excess of the normal six-year limit: When the employment-based I-140 itself takes over 365 days.
Once the EB immigrant petition (I-140) has been filed with INS and 365 days elapse, according to this guidance, H-1B status will be extended in one year increments until a final decision is rendered on the I-140. Furthermore, the INS states that the Attorney General is "required" to grant these extensions. (Likewise, dependents will be issued extensions based on the issuance of the H-1B extensions.)
This section was subject to much confusion recently, possibly due in part to a telegram issued by the Department of State this month which stated that the extension beyond the sixth year would be available to the prospective immigrant whose "petition, labor certification, or the alien's application for adjustment of status has not been acted upon for 365 days or more." The lengthy adjustments (I-485's) are a basis for these extensions under Section 106(c), and the lengthy EB immigrant petitions (I-140's) are similarly legitimate bases under Section 106(b). However, our reading of the law is that the mere lengthy pendency of an application for labor certification (absent the filing of an I-140 petition) does not make one eligible for an extension under this section. The Department of State may think otherwise, but we simply don't find any support for this reading of the law in any of the materials that INS has provided for guidance.
Finally, the INS guidance also allows for a new employer to file for the H-1B extension(s) beyond the 6th year under this section without disruption to the I-140 petition. (This does not mean that a new employer may be substituted into the I-140 petition. The petitioner in the EB-3 I-140 petition must remain the same throughout its adjudication.)
Section 106(c): Change of Employment Permitted in Cases of Lengthy Adjustment Adjudication
...or more fondly, "PLEASE TELL ME... CAN I CHANGE EMPLOYERS WHILE MY I-485 IS PENDING ???"
This is the other provision that has generated a barrage of questions. Just when CAN a new employer be substituted for the employer who was the sponsor of an approved I-140 that became the basis of a pending adjustment application (I-485)?
If an applicant for adjustment wishes to take a new job in the same or similar occupational classification at the job that was the basis of his or her employment-based I-140 AND the I-485 has been pending 180 days or more, the new employer may be substituted into the existing I-485 application without disrupting the application at all.
This is accomplished very easily - NO new petition and no new fees.
Step 1: The applicant notifies INS of the change in intent by letter.
Step 2: The Service should then make a request for a letter of employment from the new employer.
Voila! Done deal.
Public Law 106-311: Increase of the H-1B Nonimmigrant Petitioner Fee from $500 to $1000
Pursuant to the new law, this fee increased from $500 to $1000 on December 17, 2000. The employer is strictly responsible for this fee (which is entirely distinct from the filing fee) and cannot seek reimbursement from the H-1B worker by any means for this fee. Just a few categories of employers are exempt from this fee (see the list within the text).
Public Law 106-396: Exemption of Certain Employers from Requirement to File Amended Petitions
At the moment, it sure seems like INS is beginning to make things simpler, huh? A company that acquires an existing company through an eligible transaction such as a merger or acquisition (and hence the contracts with the employees for the original company) can employ an H-1B employee from the former company and INS won't even require so much as a letter of notification! (However, note that if the worker wants to travel abroad he/she will need a letter from the new company verifying his or her employment in order to re-enter.)
Hopefully this helps to make the new portability law and other provisions of AC21 a little less mysterious.
We still look forward to the actual regulations so that we can share the facts once all the evidence has been presented.
In the meantime though, we enjoy the chance to put on our detective hats and unravel what's there to be unraveled, search for clues hidden in caves, run quickly through eerie fun houses long after the amusement park has closed in search of the bad guy dressed as a clown...
Hey, at least we get to do the first one up there on the job.
About The Authors
Josť E. Latour was born in Havana, Cuba, and raised in Miami, Florida. He received his B.S. and Juris Doctor degrees from the University of Florida in Gainesville, Florida. Upon graduation from law school, Josť served as a U.S. Diplomatic and Consular Officer in Mexico and Africa. He then left the Foreign Service in 1990 to begin private practice. Founding the firm in 1990, Josť specifically chose to focus narrowly upon business and investment-based immigration. He is a recognized expert on U.S. visa law and a speaker at the state and national conventions of the American Immigration Lawyers Association. He was among the first U.S. attorneys to obtain a successful approval under the U.S. immigrant investor program leading to permanent residency in the United States. He has been selected for "Who's Who in Law." Martindale-Hubbell, the leading international legal directory, has given Josť's firm the coveted A/V rating, the highest possible peer rating index available to attorneys worldwide.
Josť's hobbies include snowboarding, horses, gourmet cooking, and, most of all, music.
Mr. Latour is a Partner of the firm. Languages: fluent - Spanish, reading - Portuguese.
Even before I went to law school I used to say that I wanted to concentrate on some area of law that was international in scope. I certainly got my wish! My job, and privilege, is to help foreign nationals navigate the turbulent waters of U.S. immigration law.
There is no area of law that I would rather be practicing. In large part this is due to the fact that I am an immigrant who had to undergo the same immigration process that our clients must undertake. Based upon our family's immigration experience, I strongly believe that our clients, and the public at large, are entitled to as much feedback and understanding of the process as possible.
I attended the State University of New York at Binghamton where I graduated with a Bachelors degree in liberal arts (Political Science and Economics). I chose the University of Miami School of Law due to the strong reputation of its international law program. However, I must admit that after spending several years in Northern New York, the sunshine was an important factor in my decision. This marks my sixth year practicing family and business immigration law. My goal is to ensure that we provide the best legal immigration services to all our clients. If you have any questions or suggestions, please e-mail me at firstname.lastname@example.org and I will be happy to respond to you.
Mr. Lleras is the Managing Partner of the firm. Languages: fluent - Spanish.
I'm Kim, one of the associates in the firm. I am so thankful for the opportunity that I have been given to practice within this firm. Not only have I walked into a place where I can pursue the path that is my heart's desire, but I can do so in an office where the warmth is making it easy to feel right at home!
My mission here is to pave a path by which more families in the U.S. can more readily reach across the nations to adopt children in need of families. Hopefully, this will be an endeavor which will enlarge the borders of many interested American families. I know it will be a process that will enlarge my borders, and I welcome it.
About me, I am a native of North Miami and have enjoyed my 20+ year share of sand and sea. I received my B.S. in Psychology from Barry University in Miami Shores in 1994. In 1995, I ventured to Pennsylvania to attend Villanova University School of Law and had quite the timing, given that the blizzard of '95 went down in the record books. Still it was a good season of life and I learned that, unlike those faced with hurricanes, people faced with blizzards actually become more accommodating. I was pleasantly surprised to discover that it was not uncommon for store owners to reward patrons willing to hike to the store through 3-4 feet of snow with hot apple cider.
My likes: Truth, humility, and good cheer. Like many others around the office, I too sing! However, my incidental audience generally consists of fellow shoppers at the grocery store, onlookers in neighboring traffic lanes, flowers in my garden, or my showerhead. When more of my musical talent is unleashed, I'll be sure to provide an update. (All things are possible.)
Thanks for your interest in our site and I welcome any input you may have as we embark on our adventure into international adoption!