H-1B Article 20: Preparing And Filing The H-1B Petition- Part 1
Important Background Issues to Understand in Preparing The Petition, Including Maintenance of Status and "H-1B Portability"
It is not clear, however, that Congress intended to vitiate the requirement to show lawful maintenance of H-1B status at the time of petition filing for a regular H-1B transfer, which remains a requirement elsewhere in the statute and regulations for an amendment or extension of status, or to allow persons who may be in the U.S. as tourists or business visitors, for example, to benefit from H-1B portability. INS has stated its disagreement with these interpretations and its intention to continue applying the requirement to show admission in and maintenance of H-1B status. Final clarification will have to wait until the INS issues regulations implementing AC 21, and any challenges to the regulations are resolved.
For now, in the scenario of failing to maintain prior H-1B status, the beneficiary may be legally allowed to begin work under AC 21 "H-1B portability" while a petition is pending, but not be eligible to ultimately have an amendment or extension of status approved. A logical strategy may then be to submit the petition and have the beneficiary begin work, but plan that the petition may only be approved for "cable notice" outside the country, and have the person then stop work to depart the U.S., obtain the new visa if necessary and return in "fresh" H-1B status. Because of these uncertainties, petitioners should be careful to seek expert legal counsel in any H-1B portability situation.
The employment authorization, which stems from the petition filing, continues until the INS adjudicates the new petition. AC 21 did not specify what form of documentation the employer must use to complete Form 1-9 for an "H-1B portability" worker showing the basis for employment authorization. In the absence of any other rule, the employer would be advised to use a certified copy of the petition filing along with proof of its being sent to and received by the INS, such as a U.S. Postal Service Express Mail certified or registered receipt or overnight delivery service confirmation. When the INS filing receipt arrives, it should be added to the employee's Form I-9 as additional proof of petition filing.
If the petition is approved, then the employment authorization is automatically converted to regular H-1B petition authorization, and the employer should update the 1-9 form accordingly. If the petition is denied, then the work authorization based on petition filing will cease.
Change of employer and "H-1B portability" petitions may also be filed for "new concurrent employment" wherein the beneficiary will keep working in the prior H-1B job but will also work concurrently, most likely part-time, with the new petitioner.
4. Extension of Stay Petition
Finally, the beneficiary might already be working for the petitioner in H-1B status under a prior approved petition. In these circumstances the employer may need to extend the validity of the petition if it is nearing expiration, or amend it to report a change in the employment. A straightforward petition extension will report "continuation of previously approved employment without change," and seek "extension of stay" for the beneficiary. An amended petition is required to report a "material change in the terms and conditions of employment or training or the beneficiary's eligibility as specified in the original approved petition. Such a petition reports a "change in previously approved employment" on the petition form, and requests that INS amend and if applicable also extend the beneficiary's stay. To be eligible for an extension or an amendment of stay in either of these scenarios, the foreign national must be able to show lawful maintenance of the prior status through continued employment with the petitioner under the prior approval, and the petition must be filed before the prior status expires. Where a petition seeking extension of a previously approved petition and extension of the foreign national's H-1B stay is timely filed before the prior petition's expiration, the foreign national may legally stay in the U.S. and continue working for the same employer while the extension is pending after the prior status expiration, under the same terms and conditions specified in the prior petition, for up to 240 days.
5. "Out of Status" Problems
In some situations the foreign national beneficiary might be in the U.S. but not be eligible to change to or extend H-1B status because of a failure to maintain status prior to the petition filing (such as by engaging in unauthorized activities, or failing to engage in the authorized and required activities) or because the prior status has expired.
Where the problem is solely a failure to maintain status, and the person has not "overstayed" the actual period as shown on the pertinent I-94 admission record card, then, depending on the circumstances, the prospective employer might be able to file a "cable notice" petition (which does not seek any change or extension of status), and the foreign national may be able to travel outside the U.S. to apply for an H-1B visa at a U.S. consulate and then seek readmission to the U.S. in proper H-1B status to begin work. Depending on the circumstances it is possible to apply for the visa at certain consulates in Canada or Mexico as a "third country national" and return, minimizing the travel inconvenience that is experienced. However, if the visa is delayed or refused the person will usually not be eligible to reenter the U.S. until the problem is resolved, and may have to travel from Canada or Mexico direct to the home country and reapply there. [See "Change in Automatic Visa Revalidation Creates Risk for Third Country Nationals Traveling to a US Consulate in Canada or Mexico to Apply for a Visa" by this author, ILW.com Immigration Daily, March 25, 2002]. With the stricter scrutiny and additional background check procedures that visa applications now face, many consider the "third country national" process to be risky and opt to return to the home country for the application.
A problem arises when a foreign national has "overstayed" by remaining in the U.S. beyond the authorized expiration date of a prior status, or has affirmatively been found in violation of status by the INS. In this situation the person is "unlawfully present." At a minimum, the person must return to his or her home country to apply for an H-1B visa to be eligible for re-admission in H-1B status, unless a special "extraordinary circumstances" exception applies to allow visa application in a third country. If the length of time since the status expiration or violation finding has exceeded, respectively, 180 days or 1 year, the person will be subject to a three- or ten-year bar on re-entry as a consequence of the "unlawful presence." The employer should immediately seek expert counsel if one of these situations is presented. [Further strategies for addressing "out of status" problems will be discussed in a later article in this series.]
6. Counting Against the H-1B Cap
The cable notice and change of status in the U.S. petition scenarios are considered to be new H-1B petitions subject to the H-1B cap, unless the foreign national has been previously "counted" pursuant to an H-1B petition approved within the prior 6 years, and has actually been in the U.S. in H-1B status within the previous 1 year. The change of employer, concurrent employment, amended petition, and extension of status scenarios all involve a beneficiary who is already in the U.S. in H-1B status, and they are therefore not subject to the cap. Certain petitions are not counted against the cap regardless of the requested action or H-1B history of the beneficiary. These include petitions by an institution of higher education or a related or affiliated nonprofit entity, by a nonprofit research organization, by a governmental research organization, or for certain physicians who have received a waiver of the "J-1 foreign residence requirement" to practice in a medically underserved area.
Next Week: More Important Issues in Preparing the Petition
George N. Lester IV is of the Immigration Practice Group (the "Group") of the law firm of Foley, Hoag & Eliot LLP. Foley, Hoag & Eliot LLP is a full-service law firm of 200 lawyers in Boston and Washington, D.C. It was the first large law firm in Boston to develop an expertise in business immigration law, and for over thirty years its Group has represented employers in a full range of procedures to obtain temporary or permanent authorization to employ foreign professionals. Mr. Lester has practiced immigration law for ten years, and regularly speaks to business, academic, and professional groups on immigration topics. As part of his regular AILA activities, Mr. Lester meets with officials of the INS Vermont Service Center to discuss H-1B and other liaison topics. He also serves as Treasurer and a Board Member of the Political Asylum/Immigration Representation Project (PAIR) in Boston, and received that organization's Pro Bono Attorney Award for Dedication and Commitment to Human Rights in May 1996. Mr. Lester is a 1989 graduate of Northeastern University School of Law.
This article is the twentieth in a series by George N. Lester of the Foley Hoag LLP Immigration Practice Group based on a chapter he authored titled "Specialty Occupation Professionals," in the treatise Business Immigration Law: Strategies for Employing Foreign Nationals, edited by Rodney A. Malpert and Amanda Petersen, and appears here with the permission of the publisher. Published by Law Journal Press. Copyrighted by NLP IP Company. All rights reserved. Copies of the complete work may be ordered from Law Journal Press, Book Fulfillment Department, 105 Madison Avenue, New York, New York 10016 or at www.lawcatalog.com or by calling 800-537-2128, ext. 9300.
For the latest updates from the Foley Hoag Immigration Practice Group, particularly including weekly Process Time Updates from the Vermont Service Center, click here.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.