"A Moveable Feast": New and Old Portability under AC21 § 105 (Part II)
As previously mentioned, a procedure existed before the enactment of AC21 that permitted H-1B employees to change employers. Under this procedure, if a worker in H-1B status wished to change employers, the new employer would submit an I-129 petition, accompanied by a labor condition application (LCA), to the INS, requesting H-1B classification and extension of the worker's stay in the United States.20 If the INS approved the petition, the agency also granted an extension of stay and approved a change in employment authorization.21 Section 105 of AC21 now allows H-1B workers to begin new employment upon the filing,22 rather than approval, of the petition. Thus, H-1B workers, in theory, may change employment more quickly without awaiting the often slowly-issued INS approval notice. Section 105 of AC21 amends § 214 of the Immigration and Nationality Act (INA)23 by adding a new subsection, which provides that a qualifying nonimmigrant alien who was "previously issued a visa or otherwise provided" nonimmigrant H-1B status is authorized to accept new employment upon the filing of a new petition by the prospective employer on behalf of the nonimmigrant.24 To be eligible for this "portability" provision, certain other requirements must be satisfied. First, the nonimmigrant alien must have been lawfully admitted into the United States.25 Second, an employer must have filed a nonfrivolous petition for new employment on the individual's behalf before "the date of expiration of the period of stay authorized by the Attorney General."26 Third, subsequent to lawful admission and before the filing of such petition, the nonimmigrant must not have been employed without authorization in the United States.27 Employment authorization continues for the alien until the new petition is adjudicated. If the new petition is denied, the authorization "shall cease." Each of these requirements warrants careful scrutiny.
Current H-1B Status Required?
Although at least one commentator differs,28 it is not entirely clear whether a worker must currently be in H-1B status. Statutory interpretation begins with assessing whether the provision's language has a "plain and unambiguous meaning."29 Moreover, the "plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole."30 Based on the phrase "previously issued a visa or otherwise provided" H-1B status, one could argue that an individual need not be in H-1B status at the time he or she desires to invoke the new portability provision. On the other hand, the phrase could be interpreted as only indicating that the worker has obtained H-1B status before the filing of the new petition and will continue to be in H-1B status after changing employment. Thus, the word "previously" does not necessarily encompass all prior instances when the worker obtained H-1B status.
Moreover, the "plain language" interpretation may not be consistent in the context of the statute as a whole. The caption of § 105 specifically states, "Increased Portability of H-1B Status." Captions may be considered to interpret ambiguous provisions.31 Captions are not to be construed, however, to limit the plain meaning of statutory text.32 Certainly, requiring that workers must currently be in H-1B status is a more restrictive interpretation. Yet there are other sections of AC21 that provide for extension of H-1B worker status in cases of lengthy adjudication of their immigrant visa petitions or adjustment of status applications.33 In this context, § 105 could be interpreted as providing a means for current H-1B workers to have protection and flexibility in their employment.
This "plain language" interpretation also appears to fly in the face of the explicitly stated congressional intent. The legislative history suggests that the purpose of § 105 is to allow workers in H-1B status greater flexibility in changing employers.34 The legislative history indicates that the portability provision under § 105 was specifically drafted to address concerns that workers in H-1B status were being exploited and had no effective redress because of the difficulty in changing employers. For example, the Senate Judiciary Committee's report states that § 105 "allows an H-1B visa holder to change employers at the time a new employer files the initial paperwork, rather than requiring the visa holder to wait for the new H-1B application to be approved."35 Moreover, the report explains that the portability provision was a response to "concerns raised about the potential for exploitation of H-1B visa holders as a result of a specific employer's control over the employee's legal status."36 In the final hours of his term as Senator, Spencer Abraham reiterated this sentiment to the INS, stating that AC21 "contained specific measures to provide for greater possible mobility for H-1B professionals as well as increased flexibility for employers."37
The INS has not yet shed definitive light on this issue. The agency has suggested, however, that § 105 only covers workers currently in H-1B status. In a question and answer sheet summarizing the AC21, the INS stated that the portability provisions "allow a nonimmigrant alien previously issued an H-1B visa or otherwise accorded H-1B status to begin working for a new H-1B employer as soon as the new employer files an H-1B petition for the alien."38 The phrase "new H-1B employer" may be interpreted as suggesting that portability will involve a change of employer, not a change of status. However, without further explanation, it is not clear how the INS will interpret this provision in its regulations.
"Period of Stay Authorized By Attorney General"
Although a worker likely must be in current H-1B status, there are situations in which this provision should be liberally construed. For example, if a worker is awaiting an extension of status, should he or she be able to accept new employment upon the filing of a new petition by a prospective employer? Section 105 provides that a nonfrivolous petition for new employment must be filed "before the date of expiration of the period of stay authorized by the Attorney General." This language is identical to that used for purposes of unlawful presence,39 for which "period of stay authorized by the Attorney General" is defined as the date "noted on the arrival document issued at the port of entry."40 If this same definition were applied to § 105, it would provide further support for the position that in looking at the statute as a whole, the worker must be in H-1B status.
According to the INS, an extension of status applicant's period of authorized stay "continues until the date the Service issues a decision."41 If an alien has been lawfully admitted in the United States, has timely filed an application for an extension of status and has not been employed without authorization, the alien's first 120 days beyond the date noted on his or her I-94 card will not be counted toward the three year bar while his or her application is pending.42 Moreover, the INS has confirmed that if an alien has timely filed an application for extension of status, the "period of stay authorized by the Attorney General" will be the "entire period during which a timely filed, nonfrivolous application of extension of stay or change of status is pending with the Service, provided the alien has not engaged in any unauthorized employment."43 According to the INS, if the alien's application is approved, he or she will be granted a new period of authorized stay "retroactive to the date the previously authorized stay expired."44 However, if the application is denied because it was frivolous or because the alien engaged in unauthorized employment, the entire period after the expiration of the Form I-94 that the alien was present in the United States will be considered unlawful presence.45
If this reasoning were applied to workers who wish to change employers while their timely filed application for extension of status is pending, they should be eligible for portability. When the prospective new employer files a petition, the worker would technically be present in the United States within the period of stay authorized by the Attorney General (or the AG's delegate, the INS). Furthermore, the worker likely would possess employment authorization based on federal regulations providing that if an application for extension of stay is timely filed, the worker may continue employment authorization for up to 240 days beginning on the date of the expiration of authorized period of stay.46 On the other hand, even though the authorized period of stay encompasses the time during which the extension of status application is pending, the INS is required to grant a new period of stay retroactive to the date previously specified once the application is approved. Thus, one could argue that the authorized period of stay is conditioned upon the approval of the extension of status application, which the worker ostensibly would not obtain if a second employer files a new petition on his or her behalf. However, the fact that the worker is permitted to begin employment upon the filing of a petition provides a basis for arguing that the worker's period of authorized stay should be extended in the same manner as when an extension of status is filed.
A gap in employment also arguably should be covered. If the worker's employment is terminated before the end of the H-1B validity period, he or she may immediately find new employment. In this situation, the worker may have failed to maintain status because the first employment relationship ended. If the termination was the result of a layoff, the INS Regional Service Centers typically provide an informal 30-day grace period. Thus, if the worker finds new employment within one month of the termination, the individual arguably should be permitted to assert the portability provision and begin working upon the filing of a new petition (if the other statutory requirements are met). The employer should also note that federal regulations also allow admission for up to 10 days before and 10 days after validity period of the approved petition.47 As a result, if the employee resigns before the filing of the petition, there should be at least a 10-day window in which the worker may assert the portability provision. There are risks with this course of action, however, as the Department of Labor (DOL) recently has taken the position that an individual may not begin employment unless a petition supported by a certified LCA has been filed.48 Thus, a delay in obtaining a certified LCA could extend the filing beyond the 10-day grace period, and the worker arguably could be deemed to have violated status. Given these uncertainties, the prudent employer and H-1B worker may decide that - notwithstanding a theoretical eligibility for the benefit of § 105 - they will defer the start of employment until the INS notice of decision is actually in hand.
Other perplexing scenarios involve gaps in employment and the effect on the alien's obligation to maintain lawful nonimmigrant status. Consider the case of the indecisive alien courted by multiple employers. Suppose the INS approved an H-1B worker's change of employer and listed a date when authorized employment could lawfully commence. The approval notice, however, does not state the deadline when such employment, once authorized, must commence. The worker terminates his initial H-1B employment, but waits approximately one month before deciding to accept or decline the second employment opportunity. The individual may ultimately decide instead to accept employment with a third employer and wish to begin working upon the filing of the H-1B petition by invoking the portability provision. May the worker accept the third employer's offer of employment upon that employer's filing of a new H-1B petition? No regulation addresses the specific conditions imposed on an H-1B worker in order to maintain lawful status under the fact pattern just outlined.
One case (Matter of Lee) held that the termination of the H-1B worker's employment constituted a failure to maintain status; but the facts were distinguishable from the suggested hypothetical.49 Lee involved an H-1 group of musicians that disbanded in New York. The H-1 nonimmigrant then went to Los Angeles to live with friends and did not possess a return ticket to his foreign homeland (at a time when an intent to return to an unrelinquished permanent residence abroad was required under the H-1 category). Lee is distinguishable from the stated hypothetical, because the indecisive nonimmigrant in the hypothetical has received an INS-approved change of H-1B employer but has postponed deciding whether to accept or decline the job. Moreover, unlike the alien in Lee, who merely ceased employment, the INS has issued two advisory letters that by analogy would allow the worker to return to the former H-1B employer.50
With regard to the potential relevance of the alien's state of mind or intention, the Board of Immigration Appeals (BIA) has stated that an individual's filing of an adjustment of status application while in F-1 status did not constitute a failure to maintain F-1 status.51 This dictum, however, assumed that the individual would remain in school. Further, case law suggests that with regard to an individual admitted to the United States for a fixed period of time, "within that period his stay is not unlawful unless by his own conduct he violates one of the conditions of his admission."52 There also is a non-binding INS advisory letter which states that in a reduction in force, H-1B workers are out of status on the date of termination even if they are paid a severance package over a later period of time.53
Under the scenario described above, it is likely that a reasonable time for decision on competing offers of employment could be properly inferred. One could argue that approximately one month is reasonable. Moreover, if the worker's delay in taking action was based in part on his or her attorney's advice and misunderstanding of a new and undeveloped area of immigration law, e.g., a misunderstanding of the impact of the no-benching provision,54 this factor as well might arguably be added to the totality of the circumstances and cause the INS to consider the alien's delay in commencing employment to be reasonable.
From the third employer's perspective, a reasonable argument can be made that the alien has not failed to maintain status. If a truthful disclosure is made to the INS, the agency will have an opportunity to object or request more information. If full disclosure is provided, the worker could not be accused of failing to provide full and truthful information "requested by the Service,"55 be liable for a material misrepresentation that cuts off a line of inquiry,56 or face a valid charge of having submitted a falsely made document.57 Of course, if the prospective employer and the worker wish to proceed under the portability provision, each party must understand the risks involved. For example, the INS may deny the extension of stay or the worker might be required to explain the entire situation to the consular officer in attempting to obtain an H-1B visa stamp. To avoid the risks and uncertainty of this approach, the prospective employer and H-1B worker may wish to wait until the INS adjudicates the case rather than rely on portability.
Worker Not Present In the Country
Another situation that may prove problematic is when a worker who was in H-1B status has left the country. If the worker departed because of the six-year cap, he or she likely would be unable to return immediately and gain admission to the United States in H-1B status. Section 105 requires that the employee have been lawfully admitted in the United States. If the worker left the country because he or she spent six years in the United States in H-1B status, he or she may not seek extension, change status, or be readmitted in H-1B status unless he or she has physically been outside the United States for the immediate prior year.58 Not surprisingly, the new I-129W form has been modified by the INS to flesh out absences more clearly. This form now includes under "Numerical Limitation Exemption Information" a box for a beneficiary who has been "previously granted status as an H-1B nonimmigrant in the past 6 years and not left the United States for more than a year after attaining such status."59 If an employer attempted to petition for H-1B status on behalf of an employee who has not been physically outside the United States for the immediate prior year, the petition may be found to be frivolous because the worker would not be eligible for H-1B status by operation of law.60
What if the worker left the country because his or her assignment ended before six years had expired? The worker was "previously issued" H-1B status and may be eligible to receive another H-1B visa, but is not physically in the United States. Under a possible plain meaning interpretation of § 105, the fact that the worker was not currently in H-1B status may not be relevant, but he or she may not be able to satisfy the requirement that the petition be filed before the expiration of the authorized period of stay, if this period is defined as the expiration date designated on the I-94. An expansive interpretation would be that if the individual had previously worked in H-1B status, he or she was lawfully admitted and had worked with employment authorization. It remains to be seen how the INS will come out on this issue.
"Nonfrivolous" Petition Requirement
The INS' position regarding the threshold showing that must be made to constitute a "nonfrivolous" petition has not been clearly defined. Thus far, the INS has stated that the H-1B petition must have "some basis in law or fact" to be considered "nonfrivolous."61 Moreover, in a recent Memorandum, the INS further confirmed (in rather awkward language) that a nonfrivolous petition is "one that is not without basis in law or fact."62 The INS indicated that its anticipated regulations would further define the standard.63 The agency has previously dealt with this issue in the context of unlawful presence and of asylum law. For unlawful presence, the INS has taken the position that an extension of status will not be granted for petitions that lack some basis in law or fact.64
A body of case law regarding nonfrivolous petitions also has developed under asylum law. Before the INS revised its asylum regulations in 1995, individuals were able to apply simultaneously for employment authorization and asylum.65 As long as the asylum request was not "frivolous," employment authorization was granted.66 Furthermore, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) included a penalty for the filing of a frivolous asylum application. Under this provision, if the Attorney General determines that an alien has knowingly made a frivolous application for asylum, the alien may be permanently ineligible for any benefits as of the date of a final determination on such application.67
In the context of whether to grant employment authorization, the INS had interpreted "frivolous" asylum request as one that is "patently without substance," and distinguished this evaluation from an inquiry into the merits of the asylum request.68 This interpretation was subsequently found to be consistent with widely shared definitions of frivolousness applied in different court proceedings.69 Moreover, the finding of frivolousness requires that the application be "clearly insufficient on its face, and does not controvert the material points of the opposite pleading, and is presumably interposed for mere purposes of delay or to embarrass the opponent."70 Thus, a frivolous claim goes beyond a failure to state a claim, and may be characterized as embracing "not only the inarguable legal conclusion, but also the fanciful factual allegation."71
Given that the INS has applied this rather low threshold consistently in a different arena, a more stringent interpretation of "nonfrivolous" for H-1B portability purposes likely would be inappropriate. The generally accepted standards would imply a certain level of bad faith on the part of the filing party. In light of the generally consistent application of what constitutes a frivolous petition, a well-supported petition should be "nonfrivolous" even if it is denied on its substantive merits.
Nevertheless, in the context of the H-1B portability provision, employers should take care in ensuring that the new petition presents a solid case. The prospective employer and legal counsel should carefully assess the individual's qualifications and the requirements of the job so that both clearly meet the "specialty occupation" standard. For example, H-1B petitions involving a specialty occupation must show that the requirement of a baccalaureate or higher degree (or its equivalent) is the normal standard for the petition, the degree requirement is common to the industry (or that the particular job is so complex that only an individual with the degree may perform the job duties), the employer normally requires the degree for the job, or the nature of the specific duties are so specialized that attainment of a baccalaureate or higher degree is usually associated with the position.72 An employer should ensure that the position sought to be filled actually does involve such specialized duties, that the degree requirement is standard in the industry, and that the applicant can meet the degree requirement (preferably without reliance on the INS' 3-for-1 rule on work experience equivalency73). If the employer were able to provide a sufficiently supported petition, even if the H-1B petition is not approved, there would be no arguable basis for finding that the petition was frivolous.
© Copyright 2001 Paparelli & Partners LLP. Published with permission.
208 C.F.R. § 214.2(h)(2)(i)(D).
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 email@example.com.
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 firstname.lastname@example.org.