"A Moveable Feast": New and Old Portability under AC21 § 105 (Part IV)
Under § 105 of AC21, employment authorization is granted upon the "filing" of a new petition. When the individual begins employment, an I-9 compliance obligation is triggered.87 The INS has indicated that the procedure for employment verification for this situation should be similar to situations in which an extension of stay has been timely filed. In those circumstances, the employer may continue employment authorization for up to 240 days after the expiration of the authorized period of stay. The individual may present a foreign passport and Form I-94, and the employer may rely on the I-797 Receipt Notice. When the individual's extension is approved, an employer would reverify the I-9 information.
Although waiting until the arrival of the INS receipt notice may produce the most reliable evidence that the new petition has been properly filed, this is not necessarily what is required by § 105. Rather, the individual is allowed to begin working "upon the filing" of the new petition. Thus, courier receipts confirming the filing arguably should be sufficient. The INS, however, has suggested that the employment verification procedure may involve attaching a copy of the notice of receipt form and a copy of the worker's I-94.88 There has been some indication that the INS may require a Form I-797 as evidence of "proper filing." Although this cautious approach may be preferred by the INS, AC21 does not require this extra step. Former Senator Abraham's letter to the INS urges the agency to reject this interpretation, as it would flout the intent of Congress in enacting portability.89
Employers' I-9 compliance concerns may be alleviated by the good faith compliance defense set forth in INA § 274A(b)(6).90 If an employer engaged in a good faith attempt to satisfy the employment verification requirements, the technical or procedural failure to meet them should constitute an acceptable level of compliance. After the INS (or another enforcement agency) informs the employer of the basis for the failure to comply, the employer will have 10 business days within which to correct the failure. If the employer does not rectify the error, this defense will not apply.
Thus, there likely should not be a "knowing unauthorized hire" issue. Because the employer prepares the LCA and I-129 petition, it is aware of the worker's educational and work qualifications and, thus, would have a reasonable assurance that the petition was not frivolous and that it was properly filed. Moreover, when the employer files the petition and begins the individual's employment relying on a courier bill, for example, the employer has made a good faith attempt to verify the worker's employment authorization. In the new free world of H-1B portability, employers and employees alike are seeking to maximize the benefits created by this new law. To that end, it may be reasonable for an employer to rely on a courier bill so that an individual may begin working several weeks sooner than if he or she were required to wait for the INS' formal receipt notice.
© Copyright 2001 Paparelli & Partners LLP. Published with permission.
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.