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Preparing and Filing the H-1B Petition - Part 4

by George N. Lester IV

George N. Lester IV Entering the U.S. and Beginning Work

Once the foreign national has been admitted to the U.S. in H-1B status, he or she may begin work immediately (or at the petition validity date, if he or she entered in the advance ten-day window), and must start work or otherwise go on the employer's payroll within thirty days. Under the rules governing "nonproductive status" added by ACWIA, the employer must commence payment of the wage specified in the H-1B petition no later than thirty days after the person has been admitted to the U.S. Note that the employer has no obligation to make any wage payments or otherwise take employment action as long as the beneficiary remains in his or her home country. As a result, if the employer needs more time to place the person in the employment described in the petition, it should instruct the person to wait abroad and not enter the U.S. Once the person enters the U.S., the employer assumes responsibility for him or her and has a legal obligation to commence payment of the salary regardless of its business circumstances.

If the approval grants a change to or extension of H-1B status, and the person is in the U.S., he or she can similarly begin (or continue) work immediately, or at the beginning of the petition validity period if the date is in the future. When the beneficiary is present in the U.S. on the date of petition approval, the wage obligation imposed by ACWIA is that payment of the offered wage begin within sixty days after the date the person becomes eligible to work. The employer must be prepared to hire and begin paying the person within that time frame once it receives notice of the petition approval. If the foreign national is already working for the employer pursuant to the H-1B portability provision of AC 21, the petition approval converts the employment authorization into "regular" H-1B status.

Once the foreign national has begun employment under the approved petition, ACWIA requires the employer to pay the offered wage on a regular basis throughout the employment. If the employer places the foreign national in a nonproductive status and fails to pay the wage offered for the number of hours specified on the LCA and in the INS Form I-129 petition, it will have violated its ACWIA wage obligation and the Labor Condition Application. If the employer listed a range of hours on the LCA and in the Form 1-129 petition, then the employer must maintain pay during any nonproductive "benched" time at a level commensurate with the average number of hours the foreign national actually worked before being placed in nonproductive status.

The wage obligations are not applicable if the foreign national makes a voluntary request for an absence or there are other circumstances rendering the person unable to work. Thus, for example, if the person is already in the U.S. in H-1B status with another employer and wishes to postpone the new employment start date, he or she may make a voluntary request to the new employer. Such a request will preserve the ability to start work at a later date and the new employer, provided it keeps documentation of the voluntary request, should avoid liability under ACWIA.

The employer must also remember to comply with its obligations under INS Form 1-9 at the time the H-1B worker begins work. The person's foreign passport and his or her I-94 card showing H-1B status in the U.S. constitute the required documentation showing identity and employment authorization. Moreover, when the foreign national is in the U.S. and has been granted a change to or extension of H-1B status, he or she will receive the relevant I-94 card as part of the approval notice.[1]

Finally, once the H-1B beneficiary has safely entered the U.S. and begun work, it is useful to remind the person (1) that the H-1B status in the U.S. only remains valid as long as he or she maintains the H-1B employment specified in the petition, with a failure to maintain the status being a ground of deportation, and (2) there is an obligation to report any change of address to the INS within 10 days of the move. INS has announced plans to strictly enforce this long-standing requirement. The report is made to a special INS address on Form AR-11, which can be obtained, with all necessary instructions, at the INS web site.[2] Failure to comply can be a ground of deportation.

Post-Approval Travel and Visa Processing

Individuals who have had their status changed to H-1B in the U.S. or who have had H-1B status amended or extended need not obtain a visa or do anything else to legally begin (or continue) work with the petitioner in the U.S., and they may stay in the U.S. and continue to work for the petitioner for the full period of status granted. Eventually, though, the H-1B employee who joins a company in this manner might wish to travel outside the U.S. Then counsel must be prepared to give advice regarding procedures for securing a smooth re-entry.

First, in certain circumstances, such persons may travel to Canada or Mexico for up to thirty days without applying for or renewing any visa in their passports. The Notice of Approval document for change or extension of status with the attached I-94 may be presented for re-entry along with the passport and prior visa in a process called "automatic revalidation." This procedure is not available for nationals of a "state sponsor of terrorism" country (currently, North Korea, Cuba, Syria, Sudan, Iran, Iraq, and Libya) or anyone who applies for a new visa while in Canada or Mexico and has the application delayed or refused.

For travel anywhere else, or in order to visit Canada or Mexico for more than thirty days, the person will need a valid H-1B visa in the passport to return (unless he or she is Canadian). If the person was granted change of status in the U.S. from another status, he or she must apply for an H-1B visa, under the procedures described above, at a U.S. consulate abroad before returning. In addition to the documentation listed, he or she should bring proof of continued employment with the petitioner such as a current employment verification letter and copies of recent paychecks. The foreign national may apply at a consulate in his or her home country or by special appointment at a U.S. consulate in Canada or Mexico as a "third-country national." [3] Many foreign nationals who have changed status in the U.S. want a visa entered in their passports as soon as possible, so they schedule a trip to Canada or Mexico just for this purpose. The foreign national may also be allowed to apply in any other country he or she may travel to for a legitimate business or pleasure purpose, at the discretion of the consulate in that country.[4]

If the person held H-1B status in the U.S. and already had an H-1B visa in his or her passport, it is not necessary to obtain a new visa relating to the new employer's petition so long as the prior visa remains valid. The person may travel out of the country and apply for re-entry to the U.S. using the old visa presented in combination with the new notice of approval relating to the new employer's petition. It is very important that he or she specifically ask the inspection official to be admitted for the full, longer period of the new petition. Foreign nationals frequently fail to make the correct request and are then readmitted to the U.S. for less time than had been granted in the new petition. Corrective action must then be undertaken.

At his or her option, the foreign national may apply for a new H-1B visa based on the new petition any time before the old visa expires, which some find preferable to applying under the old visa before it expires because this avoids the potential for confusion over the admission period upon re-entry to the country. After the prior visa expires, if the new visa has not yet been issued, the foreign national must apply for the new H-1B visa in order to return to the U.S. unless the Canada/Mexico "automatic revalidation" exception applies.

A person who was previously granted an H-1B visa has two options for obtaining a new one. First, he or she may follow the procedures above for an application outside the U.S. at a consulate. Second, within a period beginning sixty days before visa expiration and ending one year after visa expiration, the person may apply for visa revalidation by mail with the U.S. Department of State.[5] The latter procedure allows the applicant to obtain a new visa without leaving the U.S., so it is very desirable to some people even though the applicant must send off his or her passport for several weeks.

Any time a foreign national travels in or out of the U.S., regardless of the status of any visa in the passport, it is advisable to carry proof of current employment, the H-1B notice of approval, and copies of the I-129 petition form and applicable Labor Condition Application. Port of entry inspectors occasionally ask for this information upon questioning a returning H-1B worker, and delays in re-admitting such a person have occurred when the person did not have the documents in his or her possession.

Finally, many H-1B employers ultimately sponsor the H-1B worker for permanent residence through labor certification or other relevant processes. These procedures may take years, and the foreign nationals sometimes ask whether being the beneficiary of a permanent residence application will cause any questions regarding "temporary intent" when applying for a visa or admission to the U.S. This will normally not be a concern because an H-1B foreign national is expressly allowed to hold "dual intent." That is, the person may legitimately come to the U.S. for a temporary period as an H-1B nonimmigrant and at the same time lawfully seek to become a permanent resident of the U.S.

Denial and Revocation of a Petition

Despite the petitioner's best arguments, the service center may deny the H-1B petition. It will provide the petitioner with a written decision outlining the basis for its action.

The petitioner then has three options:

First, it may appeal the decision within thirty days. It may submit additional evidence and a brief setting forth a legal argument for overturning the decision. The service center will review the decision and may overturn its own decision at that point. If not, the file is forwarded to the INS Administrative Appeals Office ("AAO") in Washington, D.C. The appeal process there may take several months or a year or more, so as a practical matter, this route is likely to be unsatisfactory from the standpoint of business needs. Nevertheless, the AAO will look at the case from a fresh perspective, and it does have a record of carefully considering petitioners' legal arguments and often overturning decisions made at the service center level.

Second, the petitioner can file a Motion to Reopen and Reconsider. In this proceeding, the petitioner submits new evidence and asks the service center to reopen the proceeding, consider the new evidence, and reverse the decision. Or the petitioner may not submit new evidence but simply ask for reconsideration on the basis of legal argument.

Finally, the petitioner can simply wait and file a new petition. A petition denial will not prevent the petition from being refiled. The new or refiled petition must disclose on its face that the prior petition was denied, and thus should include sufficient evidence and argument to overcome that denial. Depending on processing times at particular service centers or because of considerations about the beneficiary's status in or out of the U.S., this may in fact be the fastest way to resolve the problem.

Finally, another unpleasant petition outcome results when the INS receives a recommendation from a U.S. consulate that, based on information obtained during the person's visa interview or from some other investigation, the INS should revoke the petition approval. The consulate may advise the INS that the beneficiary is not qualified for H-1B status, the company is not capable of a bona fide job offer, the job is not a specialty occupation, or there has been fraud committed. When this occurs, the INS will send the petitioner a notice stating its intent to revoke the petition. The petitioner has thirty days to respond with rebuttal evidence or legal argument, and the INS will then make a decision. If it revokes the petition, an appeal may be taken. If, however, the INS affirms the petition, it will inform the consulate so that the consulate may reconsider the visa application.

The INS may send a Notice of Intent to Revoke based on other derogatory evidence which is brought to its attention, such as (1) the beneficiary is no longer employed with the petitioner or working in the specialty occupation position identified in the petition, (2) the statement of facts in the petition was not true and correct, (3) the petitioner violated terms and conditions of the approved petition, or (4) some other violation of the H-1B program requirements has occurred. If the petitioner goes out of business or files a written withdrawal advising the INS that the beneficiary no longer works for it, revocation of the petition approval is "automatic" upon issuance of the letter. In other cases, the petitioner has thirty days in which to provide information rebutting the allegations listed in the Notice of Intent to Revoke before the INS makes a final decision, in the procedure described above.

Next week: Special Problems and Advanced Strategies

[1] The tear-off portion at the bottom of the notice of approval constitutes the new 1-94. As a precaution, the employer should keep a full copy of the relevant notice of approval in the person's 1-9 file in addition to the 1-94 card.
[2] See under "Forms On-line."
[3] This procedure was formerly a popular strategy seen as relatively low-risk because of the availability of "automatic revalidation," allowing the person to return to the U.S. and wait in the event the visa application is delayed or refused. As described above, that procedure is no longer available when the person applies for a visa while out of the country, so that if the application is delayed or refused the person must typically wait in Canada or Mexico or return to the home country to reapply. See the prior ILW.COM article by this author in the March 21, 2002 edition of Immigration Daily.
[4] Consulates will be unfriendly if they expect the applicant is "shopping" for a favorable location to apply, so as in the Canada/Mexico application strategy, the person should be prepared for having to return to the home country.
[5] Information on visa revalidation by mail is available at:

About The Author

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 twenty-third in a weekly series by George N. Lester IV 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 or by calling 800-537-2128, ext. 9300.

For the latest updates from the Foley Hoag Immigration Practice Group, 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.

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