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Special Problems and Advanced Strategies Part 2

by George N. Lester IV

George N. Lester IV

A. "Recapturing" Time and Other Strategies to Extend the Six-Year Maximum

A foreign national may remain only six years in the U.S. in H status, regardless of whether the foreign national has worked for different employers or held different positions or H classifications. Following the six years, the foreign national must spend at least one year outside the U.S. before being eligible for H status again. AC 21 and subsequent legislation created relief from the six-year limitation in certain circumstances for individuals who have made sufficient progress toward obtaining permanent residence. (For a discussion of this relief please see the December 9, 2002 article in this series.) Depending on the circumstances, employers often need advice on what options are available when the H-1B employee is reaching the six-year maximum.

When an H-1B nonimmigrant is not eligible for extension beyond six years under the AC 21 changes, one potential strategy is to attempt to "recapture" some of that time if the foreign national was physically outside the U.S. for any significant portions of the six-year period. This is based on the legal nature of the six-year limitation, which, by its terms, defines only actual time spent in the U.S. to be part of H-1B status time. If this strategy is possible, the employer and H-1B worker compute the time the worker spent outside the U.S. and then file a petition requesting extension of stay until a date that is six years later than the date the foreign national first entered the U.S. in H-1B status or was granted change of status to H-1B, plus the calculated "recapture" time.

According to INS, such recapture time must meet certain criteria. Most recently, the service centers have required time spent outside the U.S. to be "meaningfully interruptive" of the H-1B employment. Providing guidance on this concept, INS has stated that "if the foreign national maintains any relationship with the H-1B employer, he or she will be ineligible to recapture H-1B time." Under this standard, INS stated that (1) simple vacation time from the H-1B spent outside the U.S. would not be subject to recapture and (2) time spent on medical leave outside the U.S. might be subject to recapture if it is "significant." The decision as to recapture will be left subject to the discretion of the relevant INS service center director.

Because application of the "meaningfully interruptive" standard was left discretionary with individual INS offices, actual practice has been erratic. Indeed, on some occasions additional time has been granted to foreign nationals to make up for even short trips outside the U.S. Nevertheless, if a foreign national is approaching the end of his or her six-year maximum stay, an effort to recapture time spent outside the U.S. should be considered.

In filing a recapture application, the petitioning employer has the burden of proof. It is therefore important to present the request in the most favorable light and document each absence and its purpose. Typical documentation accompanying a request of this nature will include a high-quality copy of the passport clearly showing entry/exit stamps, plane tickets, payroll records of the employer indicating any sabbatical or leave, an affidavit from the foreign national or the employer describing the circumstances of any absence, and payroll records from any foreign employer or other documentation of activity abroad.

Many practitioners dispute the INS' basis for imposing the "meaningfully interruptive" standard on whether absences from the U.S. during the period of an H-1B petition "count" towards time that can be recaptured in a "final" extension of status, because it appears to directly contradict the relevant statute and regulations. Under the relevant section of the INA, the six-year limit applies to the actual "period of authorized admission" to the U.S. in H-1B status, not to the gross total period of H-1B petition approval. Under the corresponding regulation, the limit applies when the H-1B nonimmigrant "has spent six years in the United States" [author's emphasis] in H-1B status. It should be clear, the argument goes, that only time spent physically in the U.S. counts against the limit, so that any absence from the U.S., whatever the purpose, tolls running of time towards the limit until the person returns. The issue was recently litigated in federal district court in California, and the resulting opinion vindicated this more generous interpretation.

Another option for employers when a worker has used up the initial six-year H-1B status is to transfer the foreign national to an office or affiliate outside the U.S. for the required year. Then the individual may continue to work for the employer while completing the prerequisite to qualifying for an additional six years in H-1B status.[1] An issue that then frequently arises is whether the individual can travel to the U.S. as a business visitor. Although the foreign national is not prohibited from making such trips on behalf of the new "foreign" employer, this cannot be used as a vehicle of convenience essentially to have the foreign national continue to work in the U.S. Such trips should be made only for bona fide, short-term temporary business visits.

A foreign national might also be near the six-year limit on H-1B stay but believe that an opportunity to apply for adjustment of status to permanent residence is imminent because a preference petition to classify him or her as eligible for permanent residence is pending or will shortly be ready to file, providing a basis to apply for adjustment, but the foreign national is not eligible for a seventh-year H-1B extension. In such a situation the person may make a tactical decision to "overstay" and wait in the U.S. to submit the application for adjustment of status. Under a special provision of the law governing applications for adjustment of status, a person who has been lawfully admitted to the U.S. may apply for adjustment of status to permanent residence in an employment-related category, notwithstanding having overstayed the period of admission or worked without authorization, so long as the period of overstay or unauthorized employment does not exceed 180 days. Under another special provision, if an underlying labor certification or preference petition was filed before April 30, 2001, and the person was present in the U.S. on December 21, 2000, he or she may apply for adjustment of status and be forgiven any overstay or unauthorized employment with payment of a $1,000 fine.

The employer will not be authorized to employ the foreign national during the overstay period, but as soon as the foreign national submits the application for adjustment of status, he or she will be able to apply for an "employment authorization document" (EAD) card granting a resumption of legal work authorization.

This "tactical overstay" strategy is very risky, and it is only recommended if the parties first consult with expert legal counsel. If there has been a miscalculation and the opportunity to apply for adjustment of status does not arise within the 180-day overstay period, the foreign national must then leave the U.S. and return to his or her home country to obtain any further visa, unless the foreign national decides to rely on Section 245(i). If the person leaves before 180 days have passed, he or she should be able to complete processing for permanent residence through the U.S. consulate in his or her country of last residence, or obtain another H-1B visa after one year has elapsed. If the person stays in the U.S. beyond the 180-day overstay period, he or she becomes subject to a three-year bar on reentering the U.S., or if the overstay exceeds one year, a ten-year bar.

B. Inadvertent Lapse of Status

There are a variety of different situations in which an H-1B employee or an H-4 family member may inadvertently fall out of status. Common examples include the following:

  • An H-1B employee working for Company A has a new H-1B petition approved so that he or she may work for Company B. The H-1B employee then travels outside the U.S. and re-enters the country using a pre-existing H-1B visa obtained as a result of his H-1B employment with Company A, but the employee fails to present the Notice of Approval of his or her current H-1B employment with Company B at the time of entry. In such a situation, the H-1B employee would be re-admitted only for the remaining validity period of the old visa, even though he or she was eligible for re-admission for a longer period because of the new H-1B approval for Company B. The employee might be unaware that he or she has been admitted for a shorter period than the Company B approval, and his or her status might inadvertently lapse when the shorter period from the Company A approval expires.

  • An H-1B employee working at Company A has a petition to amend/extend stay filed by Company B. The employee's family members are in valid H-4 status but, either because they do not believe that they need to extend their stay or Company B is unaware of the need to extend the stay of the family members, nothing is filed on their behalf. The authorized stay of the family members will therefore not be extended for a period coextensive with the Company B approval for the employee. When the date of the family members' original approval, coextensive with the Company A petition, expires, they may inadvertently overstay.

  • There are a variety of other scenarios that arise, with varying degrees of complexity. Selection of a proper strategy to rectify a problem depends on the particular circumstances. If the H-1B employee has inadvertently fallen out of status, he or she must be placed back into H-1B status retroactive to the date that he or she initially fell out of status. This is necessary to avoid both the H-1B employee's having worked without authorization and the employer's having improperly employed a person not authorized to work.

    Under some circumstances, a simple problem can be addressed through a visit to the local INS district office or to the port of entry where the person was admitted, to request that the person's admission record be amended or re-annotated with a new date. In other situations, the petitioner may file an H-1B petition seeking "retroactive" extension of status for the foreign national. The INS has discretionary authority to forgive any "delay" in petition filing and approve a "late filed" or retroactive extension of H-1B status where the applicant can show that (1) the delay was due to "extraordinary circumstances beyond the control of the applicant or petitioner" and the INS "finds the delay commensurate with the circumstances"; (2) the foreign national has not otherwise violated his or her nonimmigrant status; (3) the foreign national remains a bona fide nonimmigrant; and (4) the foreign national is not the subject of deportation or removal proceedings.

    If family members have overstayed, so that work authorization is not an issue, and the period of overstay has been 180 days or shorter, thus avoiding application of the three- or ten-year "unlawful presence" bar on re-entry to the U.S., a simple solution may be for the family members to leave the U.S. and return to the home country. The family members may then apply for new H-4 visas and re-enter the U.S. to obtain new periods of stay co-extensive with that of the principal H-1B nonimmigrant. Unfortunately, the overstay prevents the family members from obtaining visas in Mexico or Canada or from another third country but it normally has no further negative effect so long as the overstay period was less than 180 days, and the family members return to their home country to make new visa applications.

    If the foreign national or family members have overstayed for more than 180 days, they should not leave the U.S. because they can then be barred from applying for visas or re-entering the U.S. (1) for three years if the "unlawful presence" was greater than 180 days but less than one year or (2) for ten years if the "unlawful presence" was greater than one year. In such a situation, the family member(s) should apply for a retroactive extension of stay, asking the INS to exercise its discretionary authority to grant relief, to link their status back to the point at which it initially lapsed. If such an application is granted, the family members will not be subject to a re-entry bar.

    Obviously, favorable use of this discretionary authority by the INS can never be assumed. In practice, it has been the observation of the author that, in appropriate circumstances in the past, the INS has been willing to show reasonableness and flexibility in correcting problems of status lapse or late filing of a petition that were inadvertent or resulted from a good-faith misunderstanding of immigration procedures. In the post-9-11 environment, however, INS has indicated it will be showing "zero tolerance" for late-filed or out-of-status applications or petitions where the problem would have previously been overlooked a matter of discretion. It is still possible to make the "extraordinary circumstances" request for relief, but INS can be expected to hold those requests to a more convincing standard.

    C. Anticipating the Annual H-1B Cap

    With the potentially significant impact of the H-1B cap on the employer's ability to recruit and hire foreign nationals in H-1B status, it becomes increasingly important for the employer to implement an H-1B strategy that minimizes the risks of an H-1B cap problem.

    Perhaps the single most important step that the employer can take is to proactively identify employees it hires in F-1 or J-1 practical training status who typically come to the employer with an employment authorization card issued by the INS good for one year, and then work with these employees to file petitions for change of status to H-1B early in the annual H-1B cap cycle. These employees frequently begin work during May, June, or July, after graduation from a U.S. academic program. In some recent years the cap has been reached long before that point in the year, so if the employer waits the full year of the employee's practical training before filing the H-1B petition it may be too late, and the person will be unable to obtain work authorization until the following October. To avoid these problems, employers should prepare and file H-1B petitions promptly after the employment "relationship" begins and obtain approval early in the INS fiscal year. Where appropriate, the employer can ask for an H-1B start date as late as six months after the date of filing, thereby using as much of the practical training period as possible before commencing the six-year H-1B status period.

    Second, employers that recruit abroad should, to the extent possible, try to schedule such recruiting at a time that, if they find qualified, interested applicants, would leave the employer with time to prepare and file an H-1B petition that can be approved prior to the cap's being reached. Late summer or early fall are the best times. Spring and early summer are inadvisable, unless the employer is willing to wait until October 1 for the new employees to begin employment.

    Finally, the potential impact of the H-1B cap each year makes it especially important that employers train recruiters to avoid making unrealistic promises of employment to foreign nationals who need a new H-1B visa approval to begin work.

    The August 12, 2002 article in this series describes the recent history of the H-1B cap. The cap has not been a problem since AC 21 raised the annual limit to 195,000, but when the limit reverts to 65,000 for fiscal year 2004 this kind of strategic planning will once again assume critical importance.

    Next week: Our final article covering more Special Problems and Advanced Strategies, including Mergers, Acquisitions, Relocations and Other Corporate Changes, and Termination or Resignation of an H-1B Employee.


    [1] The individual might also qualify for L-1 intracompany transferee status at the end of the one-year period.


    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-fifth 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 www.lawcatalog.com 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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