"A Moveable Feast": New and Old Portability under AC21 § 105 (Part IX)
Travel Issues The INS has taken the position that an H-1B worker who has changed employers under the portability provision but has not yet received an approval notice for the new employment may travel and be readmitted to the United States if he or she satisfies certain prescribed conditions.125 According to the INS, the individual must: (1) be "otherwise admissible"; (2) possess a valid, unexpired passport and visa (which includes a valid, unexpired visa endorsed with the name of the original petitioner)126 ; (3) establish that he or she was previously admitted as an H-1B, or otherwise accorded H-1B status; and (4) present evidence that a new petition was timely filed.127 The individual must present evidence that the new petition was filed prior to the expiration of the H-1B's previous period of admission. This evidence, the INS suggests, may be a dated Form I-797 receipt notice or "other credible evidence of timely filing that is validated through a CLAIMS query."128
These standards leave open the possibility of an H-1B worker to re-enter the U.S. after a lengthy period of travel abroad, as long as a new petition was timely filed. Consider the situation in which an individual commences employment with Company A pursuant to an approved H-1B petition with a three-year validity period. When the worker entered the United States, he or she possessed an H-1B visa and obtained a Form I-94 (arrival/departure record) with an expiration date which coincides with the final date of the H-1B petition validity period. Shortly after starting employment, he or she decides to accept a job offer from Company B. If the worker subsequently leaves the country, and does not return to the United States for a protracted period, it is arguable that the worker should be able to re-enter with the previously issued visa. The worker may maintain that as long as Company B's H-1B petition was filed within the H-1B's previous period of admission, he or she may be permitted to re-enter with the previously issued visa. Of course, the INS emphasized that the burden of proof remains with the individual to establish admissibility as an H-1B nonimmigrant and eligibility under AC21's portability provision. Given that the INS may take the position that the period of admission ends when the alien departs the U.S., a decision to opt for this approach would be made without the blessings of the authors.129
If an individual travels after beginning new employment, may he or she demand a visa in the new employer's name? The worker may try to present the Notice of Receipt and I-94, and claim that he or she is qualified for H-1B status. To obtain an H-1B visa, the consular officer must be satisfied that the alien qualifies for H-1B status.130 The alien must present official evidence of the approval by the INS of a petition to accord such classification. The approval of a petition by the INS does not necessarily establish that the alien is eligible to receive a nonimmigrant visa.131 If the officer knows or has reason to believe that an alien applying for an H-1B visa is not entitled to the approved classification, the officer must suspend action on the alien's application and submit a report to the approving INS office.132 If the individual is refused, he or she may try to challenge the consular officer's decision in federal court.
Consular officers have discretion to issue a nonimmigrant visa based on a proper application. This power has consistently been held as not being subject to judicial review.133 Despite the doctrine of consular nonreviewability, there have been cases in which the court reviewed the consular officers' decisions and ruled that erroneous legal conclusions were reached in those cases.134 Based on these decisions, the individual may try to argue that the refusal to issue a visa was an erroneous legal judgment. This position may be difficult to maintain, however, given that a court has distinguished one of these cases by finding that it involved a revocation of the visa and thus did not involve the granting of a visa.135 Given that consular nonreviewability is an entrenched doctrine, an individual may have difficulty in convincing a court to review the refusal to issue a new visa. Ultimately, it may be advisable for workers to refrain from traveling after the filing of a new petition. This is particularly true in light of reports that individuals have been stranded abroad because INS inspectors have received no guidance on the new law from INS headquarters.
125 See 1/01 Pearson Memo supra note 62.
126 See The Department of State Unclassified Telegram to All Diplomatic and Consular Posts, SECSTATE WASHDC (STATE 27960 - ROUTINE), providing that, based on the INS' position, an H-1B alien traveling abroad after accepting new employment under AC21 "will need a new visa only if the original visa has expired." According to the State Department, such a situation would be rare given that the visa and petition ordinarily share the same expiration date. The State Department provides that consular officers may issue a new visa when an applicant presents a valid passport, evidence of the validity of the old petition and evidence of the timely filing of the new petition. See also 1/01 Pearson Memo supra note 62, which states that the visa requirement would not apply to Canadians who are visa exempt under 22 C.F.R. § 41.2. According to the INS, visa exempt applicants may present a Form I-94 (arrival/departure record) or a copy of the Form I-797 approval notice with the original petition's validity dates. In the rare circumstance where the consular officer issues a new visa based on portability, the question arises of what the expiration date will be. Since the INS may not have approved the new employer's petition, there would not yet be a known petition validity date to serve as a guide for the consular officer.
127 See 1/01 Pearson Memo supra note 62.
128 The INS' Computer-Linked Application Information Management System (CLAIMS) records and tracks cases for immigration benefits, and serves as the agency's central source for document production. In recent years, the INS began tracking the number of H-1B petitions filed through CLAIMS, and focused greater efforts on supporting the CLAIMS database. See 75 Interpreter Releases 13 (January 5, 1998), 75 Interpreter Releases 261 (February 23, 1998).
129 It should be noted that the INS has magnanimously stated that if the H-1B applicant asserting portability does not possess a Form I-797 and the filing of a new petition cannot be confirmed by a CLAIMS query, he or she will not automatically be subject to expedited removal. The consequence of an order of expedited removal is that the alien would be inadmissible for five years. INA § 212(a)(9)(A)(i).
130 22 C.F.R. § 41.53(a).
131 22 C.F.R. § 41.53(b).
132 22 C.F.R. § 41.53(d).
133 See, e.g., Kleindienst v. Mandel, 408 U.S. 753 (1972); Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970 (9th Cir. 1986). See also Angelo A. Paparelli & Mitchell Tilner, A Proposal for Legislation Establishing a System of Review of Visa Refusals in Selected Cases, 65 Interpreter Releases 1027 (Oct. 7, 1988).
134 Wong v. Department of State, 789 F.2d 1380 (9th Cir. 1986) (consular decision to revoke visa was erroneous); Shimizu v. Dep't of State, No. CV 89-2741-WMB (C.D. Cal. May 31, 1990), summarized in 67 Interpreter Releases 699 (June 25, 1990) (same).
135 Li Hing, 800 F.2d at 971 (distinguishing Wong).
About The Author
Angelo A. Paparelli (email@example.com) has been practicing business-sponsored immigration law for over 20 years, and is the managing partner of Paparelli & Partners LLP in Irvine, California. He 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. Mr. Paparelli is certified as a Specialist in Immigration and Nationality Law by the State Bar of California, Board of Legal Specialization.
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.