"A Moveable Feast": New and Old Portability under AC21 § 105 (Part VI)
Denial of the H-1B Petition
Section 105 specifically states that employment authorization "shall cease" if the new petition is denied. The fact that the individual may lose employment authorization after beginning a new job poses a certain level of risk that the parties must assume. From the new employer's perspective, if the H-1B petition is denied, the employer would lose not only the cost of petitioning on behalf of the individual but the cost of its recruiting, orientation and the value the new employee brings to the company. If the worker's employment verification was not properly documented, the employer also may face I-9 liability. The employer likely faces fewer risks, however, than the individual, who may be required to return to his or her home country (possibly at his or her own expense).101 If the petition is denied and employment authorization ceases, the worker may attempt to return to his or her previous employer. Whether he or she will be able to return is uncertain and would depend on the actions taken by the previous employer. In light of these risks, if the prospective employer's legal counsel does not represent the worker, he or she likely should be encouraged to seek counsel. Whether both the worker and new employer should be required to sign a disclosure and acknowledgment of these particular risks may be an issue to be addressed by the parties' legal representatives. With regard to when the employment authorization ceases, the language of the statute is that authorization "shall cease," which could be read as connoting an action in the future. Rather than an immediate termination of the authorization, the petitioning employer as a matter of procedural due process should be entitled to receive actual notice of the denial before the employment authorization is deemed to have ended. The temporary employment authorization is analogous to the situation in which an employer timely files an extension of status for an H-1B worker. In those cases, employment authorization is automatically terminated "upon notification of the denial decision."102 Given that the INS has indicated that employment verification procedures for H-1B portability cases should follow those used in extension of status cases, the analogy is appropriate, and employment authorization should continue until the employer receives actual notice of the denial. Without actual notice of the INS' denial of the petition, the employer and employee will not be aware that authorization has ceased, which in some respects is distinguishable from visa overstay cases under INA § 222(g). In these latter cases, the individual knows beforehand the precise date when the visa would become void. If the authorization ceases when the decision to deny the petition is made, most workers awaiting this determination would engage in unauthorized employment because they would not learn of the termination until they receive the notice. Certainly, a "practical safe harbor"103 should be provided, given the harsh consequences of the denial. As mentioned, once the work authorization ends, the employee may wish to return to the first employer. For this to occur, the first employer must have the job available. By the time the new petition is denied and the individual's new employment ends, the first job may have been filled. This is certainly a risk the employee faces in this competitive marketplace. The other risk the worker faces is that the initial employer may have already caused the DOL and the INS, respectively, to have revoked the LCA and the H-1B petition that previously covered his or her employment.104 If the employer learns that the employee wishes to return after the INS has been notified of the initial termination, should the employer be able to rescind the request for revocation and reactivate the petition? The employer may argue that the terms and requirements of the employment have not changed, and the petition has not yet been revoked (if this is still the case). The employer may explain that the changed circumstances previously reported no longer exist. Given that the DOL has taken a position that the employer must report the termination of employment to avoid the financial burden of the benching provision, the employee could effectively lose employment authorization if the employer is not able to rescind the request for revocation. Such a situation could discourage workers from asserting portability, as they may reasonably decide that the risk of losing employment authorization altogether is too great. Certainly, this result would defeat the purpose of the statute. If the employee is unable to return to the initial employer, another risk the employee may face involves repatriation. If an employee is dismissed from employment before the agreed upon date, the employer must pay the reasonable costs of return transportation of the alien abroad.105 If the alien worker voluntarily terminated employment before the expiration of the validity of the petition, he or she will not be considered to have been dismissed.106 When an individual resigns from employment to begin working for a new employer, the initial employer should not be liable for repatriation costs. If the worker starts new employment upon the filing of a new petition, but the petition is later denied, the new employer should not be liable for repatriation costs as well. Since the new employer merely filed the petition, the subsequent denial should prevent the employer from being held liable as an H-1B employer. There should not be a finding that the employer terminated the worker from employment given that employment authorization ceased by operation of law. Thus, the employee ultimately would appear to be solely responsible for transportation home.
© Copyright 2001 Paparelli & Partners LLP. Published with permission.
101 See discussion on repatriation below.
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.