"A Moveable Feast": New and Old Portability under AC21 § 105 (Part III)
Employer Due Diligence and Employment Discrimination Risks
In its effort to evaluate these factors, how far may an employer go in inquiring about a worker's status? Immigration law prohibits employers from requesting more or different documents for employment verification purposes.74 This prohibition, however, should not prevent an employer from exercising due diligence in inquiring about an applicant's qualifications for the job. Consider a situation where an employer hires a truck driver. The employer must ask applicants whether they hold a driver's license, because they are required by law to have such documentation to work as a truck driver. An employer hiring a worker in H-1B status is in an analogous position, because the employer must assess the likelihood that the worker will be denied H-1B status (without which the individual would not be able to accept the position).
Employers, of course, must exercise caution in questioning applicants regarding their immigration status. Under Title VII of the Civil Rights Act, an employer is prohibited from discriminating against an individual based on his or her national origin (among other protected categories).75 Moreover, Title VII specifically prohibits employers from limiting, segregating, or classifying applicants for employment "in any way which would deprive or tend to deprive any individual of employment opportunities . . . because of such individual's race, color, religion, sex, or national origin."76 Generally, the purpose of antidiscrimination law is to prevent barriers to employment opportunity based on an individual's particular classification.77 Protection for national origin is based on "the country where a person was born, or, more broadly, the country from which his or her ancestors came."78
There is a distinction between this form of discrimination and questions regarding an individual's eligibility for employment. The two, however, may overlap. As part of an individual's prima facie case of discrimination, the individual may argue that despite his or her qualification, he or she was rejected for the position based on national origin.79 The individual may support this contention with evidence that he or she was asked inappropriate questions or subjected to offensive remarks during the application process. Employers should not ask questions regarding citizenship, place of birth or legal right to remain permanently in the United States.80 Employers may ask, however, if the applicant has authorization to work in the United States. The employer must ensure that any inquiry into the worker's qualifications for H-1B status is done in a professional manner, and that it clearly communicates to the employee that requests for documents and additional information are made solely for the purpose of ensuring the proper filing of the H-1B petition on the worker's behalf. AC21 has created a situation in which continued employment authorization is attained only after the worker begins employment. Because there is a risk that this authorization could cease, both the new employer and applicant have an interest in ensuring that the new petition is clearly approvable. Thus, the employer may be able to defend against a national origin discrimination claim based on the position that the additional inquiry was made for a legitimate business reason, namely, ensuring the proper status and statutory eligibility for the worker's immediate and continued employment.
The difficulty may lie in whether courts will determine that the employer's refusal to hire a worker based on the low likelihood of success on an H-1B petition would be sufficient to establish discrimination. The worker could argue that the employer's assessment of the strength of the petition was a pretext for discrimination. On the other hand, the employer may counter that its assessment and conclusions were based on reasonable legal judgment by counsel. This position would need to be carefully crafted to avoid the appearance that the employer made presumptions about the foreign born worker's employment authorization. Such a perception could lead a jury to conclude that the worker's national origin, not his or her H-1B eligibility, led to the decision not to hire the worker.
Transfers and Promotions with the Same or an Affiliated Employer
Another issue that may arise is whether a transfer within the same company or between its divisions is covered under § 105 and whether the employer will be deemed to have filed a nonfrivolous petition for attempting to do so? Section 105 states that an individual may "accept new employment upon the filing by the prospective employer of a new petition." When any material change to an H-1B worker's terms and conditions of employment occurs, the employer is required to file an amended or new petition accompanied by a current or new LCA.81 Arguably, when the terms and conditions of a position are materially changed, the employee is starting "new employment." The employer, however, may not necessarily be considered a "prospective" employer. Nevertheless, an employee should be able to assert portability in these situations, based on a public policy argument. The legislative developments of the past months indicate that Congress' intent was to prevent workers from stagnating in their jobs because of delays outside their control. There is evidence that the various provisions of AC21 were intended to address concerns that individuals on H-1B visas may have been penalized because of administrative delays.82 Moreover, § 401 of the VWPPA provides that an amended H-1B petition is not required in certain corporate reorganization. This suggests a contemporaneous congressional intent (albeit in separate legislation) to facilitate career progression for H-1B workers. Allowing workers to invoke the portability provision when transferring within the same company would best effectuate worker mobility and thus would avoid career stagnation.
The DOL, however, has created an apparent obstacle to this interpretation in its interim final regulations by taking a rather narrow view of what would constitute a termination of employment. The DOL regulations provide that a "bona fide" termination of the employment relationship is required to relieve the employer of liability for benching.83 According to the DOL, a termination for purposes of the wage attestation on an LCA will be recognized only if the INS has been notified that the employment relationship has been terminated, the H-1B petition is canceled, and the employee has been provided with payment for transportation home.84 The DOL's position is that employment has not been terminated unless the worker either departs the United States or seeks a change of immigration status for which he or she may be eligible.85 This position was clearly challenged at a recently convened DOL "Stakeholders' Meeting." At that meeting, representatives of the employer community indicated to the DOL that employers may wish to postpone the submission of notice of termination to the INS and the resulting INS revocation of an H-1B petition in order to ensure that an individual who changes jobs pursuant to the portability provision is safely situated with a new H-1B employer. The DOL reportedly responded that this practice may be dangerous and may subject the initial employer to back pay liability. Thus, it remains to be seen whether the DOL will budge on its interpretation that the cessation of the benching obligation can only occur upon the submission to the INS of a notice of H-1B employment termination.86
© Copyright 2001 Paparelli & Partners LLP. Published with permission.
74 INA § 274A.
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.