The H-1B Series: Part 5 of 6 (Encore)
Important Background Issues to Understand in Preparing The Petition, Including Maintenance of Status and "H-1B Portability"
An employer seeking to hire a foreign professional in H-1B status must first file a "Petition for a Nonimmigrant Worker" with the INS. There are several procedural categories of petitions, and it is helpful to understand the distinctions. Depending on the category, there is a particular "requested action" the petitioner asks INS to perform with respect to the beneficiary. Following is a discussion of the various petition categories and related issues.
1. General or Cable Notice Petition
First, in what INS refers to as a "general" or "cable notice" petition, the foreign national is outside the United States and is being offered the opportunity to enter the country and begin new employment with the petitioner. The petition indicates that the person is outside the U.S. and requests that notification of the approval of H-1B classification be sent by cable to the U.S. consulate in the country where the person resides. The foreign national then applies for an H-1B visa to be entered in a passport, and travels to the U.S. If the person is a Canadian citizen, he or she need not obtain a visa and may enter the country as soon as the petition is approved. The person must be lawfully admitted to the U.S. in H-1B status based on the H-1B visa (or the H-1B approval notice, in the case of Canadians) to begin work.
2. Change of Status Petition
Second, the beneficiary might be in the U.S. in another temporary nonimmigrant status, such as that of an F-1 student, J-1 exchange visitor, or TN NAFTA professional. In some circumstances the person might already be working for the petitioner in the other status, such as in the F-1 student "practical training" program or TN status. This type of petition seeks authorization for "new employment" (regardless of whether the person actually works for the petitioner already in a prior status) and requests "change of status" for the person in the U.S. from the other status to H-1B. To be eligible for change of status, the person must have continually maintained, and committed no violations of, the previously accorded status, and the petition must be filed before the status expires. J-1 exchange visitors who are subject to the "two-year home residency" rule are ineligible for change of status to H-1B.
Approval of the petition will legally change the person's status in the U.S. to H-1B and commence a new period of time to remain in the country. The person will not be required to report to a consulate or take any further action, and he or she can begin work for the employer in H-1B status upon petition approval. Note that the foreign national may not begin work prior to the approval unless authorized to do so in the prior status, or this will constitute a violation rendering him or her ineligible for change of status. Indeed, if the person was authorized to work for the petitioner in the prior status but that authorization expires, he or she must stop work until the H-1B petition is approved. As long as the petition was timely filed before the prior status expired, the person is legally allowed to wait in the U.S. after expiration of status for the petition to be processed, provided he or she does not work without authorization.
3. Change of Employer Petitions and "H-1B Portability"
Third, the beneficiary might already be in the U.S. in H-1B status with another employer. The prospective employer then files a petition seeking authorization for "new employment" of the person, with a request for "extension" of the foreign national's H-1B stay in the U.S. for the period stated in the petition. Such petitions are referred to as "H-1B transfer," "change of employer," or "sequential employment" petitions. To be eligible for extension of status the beneficiary must be able to show lawful maintenance of the existing H-1B status through continued employment with the prior petitioner, and the petition must be filed prior to expiration of the alien's H-1B status.
AC 21 created a helpful concept for employers filing change of employer petitions: "H-1B portability." As a result, the H-1B status holder may begin working for the new employer as soon as it files the petition with INS, rather than having to wait until the petition is approved. Specifically, Section 105 of AC 21 specifies that a nonimmigrant alien who was "previously issued a visa or otherwise provided H-1B nonimmigrant status is authorized to accept new employment upon the filing by the prospective employer of a new petition" on behalf of the alien, provided:
Note that, as spelled out in AC 21, the requirements for "H-1B Portability" do not include showing that the beneficiary maintains H-1B status (i.e., continues to work with a prior H-1B employer), or even that the most recent lawful admission to the U.S. and authorized period of stay was in H-1B status. Practitioners have interpreted these omissions to allow the filing of "H-1B portability" petitions and attendant work authorization where a beneficiary is in the U.S. in H-1B status but have failed to maintain status by not working for the prior petitioner, or where the person previously held H-1B status but has since changed to or left and reentered the U.S. in another status.
- The alien was lawfully admitted into the United States,
- The petition is filed before the date of expiration of the authorized period of stay,
- The petition is "nonfrivolous," and
- The alien has not been employed without authorization in the United States subsequent to admission.
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.
Preparing the Petition
A complete H-1B petition package consists of the following materials:
The I-129, H Supplement, and I-129W Forms must be carefully completed. In Part 2 of the I-129 Form, for example, the petitioner specifies a basis for the petition and a requested action from INS, as described above. Part 3 of the form seeks important personal information about the foreign national and about his or her status at the time of petition, if any, in the U.S. Part 4 seeks further relevant processing information concerning the petitioner's requested action, including any consulate to which the petitioner requests that notice be provided of approval, and the foreign national's prior immigration history. Errors in these sections can cause a petition that is not subject to the H-1B cap to be processed like one that is subject to the cap, delays in petition processing at the service center or relative to a visa application abroad, incorrect material information being listed in the INS case approval or record of action which must be corrected, or other problems.
- Form G-28, Notice of Entry of Appearance of Attorney, if the employer is represented by counsel;
- Filing fee, in most cases $1,130, but in some cases $130;
- The Petition for a Nonimmigrant Worker, INS Form I-129, plus H Supplement;
- INS Form I-129W;
- Labor Condition Application certified by DOL;
- Documents evidencing this foreign national beneficiary's identity, such as the passport and if in the U.S. a state issued driver's license;
- Documents evidencing the foreign national's lawful admission and maintenance of status, if in the U.S. in H-1B or another nonimmigrant status; and
- Petitioner's supporting letter Petitioner's supporting documentation
- Any necessary application of family members to change to or extend H-4 nonimmigrant status.
Of particular importance in the post 9/11 environment is attention to detail in entering the correct spelling of the H-1B beneficiary's full name and the correct date of birth. Starting in early 2002, INS implemented a procedure of background checks for all individual petitioners, applicants or beneficiaries in the "Interagency Border Inspection System" (IBIS) database, which contains a variety of law enforcement, customs and immigration records. If any of the beneficiary's identifying data in the petition is incomplete or incorrect it will at minimum slow down the IBIS record check process and may cause an unintended "hit" in the database that will take weeks or months resolve. INS advises that to speed the IBIS process the petitioner should spell out all first and middle names in full, rather than using initials, and include copies of identifying documentation on the beneficiary such as the passport data page and (where applicable) a social security card and driver's license.
Other questions in Part 5 and on the "H Supplement" to the form seek information about the petitioner's business and its gross income and number of employees, the title, salary, and description of the job, and the beneficiary's credentials and work experience. The petitioner should prepare concise, well-thought-out answers to these questions to quickly establish for the INS, in summary fashion on the face of the petition, that the employer is a viable enterprise, that the position is a specialty occupation, and that the beneficiary has the appropriate qualifications for the occupation.
Part 5 also requires specification of the address where the person will work. If this address differs from the one on the front of the form, perhaps representing a particular client site or a separate office of the petitioner in another city, the appropriate work location should be entered. If the position involves a known itinerary of multiple locations, the itinerary should be included, with all the dates and locations where services will be performed. If the position involves the potential for relocation to multiple unanticipated locations based on business needs, without a known itinerary, the petition should identify the initial location, or if the initial location is unknown, the location constituting a permanent home base, and include a statement about the potential for reassignment. Such scenarios arise where a large company has multiple office locations around the country and wishes to retain flexibility to transfer H-1B workers between its offices, or where a consulting or staffing company has clients in multiple locations and expects to reassign H-1B workers at the conclusion of a project. When the beneficiary is outside the U.S., often the actual location where he or she will perform work after entering the country is unknown when the petition is prepared. Then it is appropriate to insert the "permanent home base" location on the petition.
The form also requires specification of the "dates of intended employment" in Part 5, another matter needing careful attention. The requested period for an initial petition or an extension may be up to three years, or until the end of the validity period of the LCA, whichever occurs first. It is important to be aware that the H-1B worker's initial period of stay in the U.S. in H-1B status may not exceed six years. Therefore, if a full three-year petition validity would exceed the foreign national's six-year maximum stay, the requested period must be shortened accordingly. It then becomes important to list with precision on the H Supplement all the foreign national's prior periods of stay in the U.S. in H classification. If the foreign national has spent time outside the U.S., the periods of stay should be broken out by entry and exit to reflect only the time actually spent in the country. The exact number of months and days in the U.S. in H-1B status can then be totaled and used to calculate the full balance of time available to make up the six-year maximum. That period of time is then used for the requested petition period. In this manner, the petition ensures that time spent outside of the U.S. is "recaptured" so that the person is granted a full six years in the U.S. ["Recapturing" time will be discussed further in a later article in this series].
When the foreign national has reached the six-year maximum period of stay in the U.S. in H status, he or she may then qualify for additional periods of extension of stay in one-year increments, if an employer has taken steps in a permanent residence process for the person under AC 21 and additional amendments enacted in November 2002. H-1B nonimmigrants may extend H-1B status in one-year increments beyond six years if 365 days or more have elapsed since:
(a) the alien's employer filed a labor certification application for the alien with the DOL or,
(b) in cases where labor certification is not required, the employer or the alien filed a Form I-140 Immigrant Petition with the INS.
Extension of H-1B status beyond six years is also available to foreign nationals who have not been able to file an Adjustment of Status application because per-country limitations have prevented their priority date from being current. The foreign national must have an approved INS Form 1-140 petition to qualify for the extension. The extension lasts until the Adjustment of Status application is adjudicated.
If the H-1B nonimmigrant does not qualify for a seventh-year extension pursuant to the AC 21, then H status will be unavailable until the foreign national has resided and been physically present outside the U.S. for a full year. Brief trips to the U.S. for business or pleasure are allowed and are not interruptive of the year, but such time spent in the U.S. may not count toward fulfillment of the required time abroad.
It is important to read all of the form instructions carefully because they are expressly incorporated into the governing regulations for the petition process.
Finally, the petition forms must be signed by an authorized official of the employer, such as a human resources representative, a manager in the department where the foreign national will work, or a company executive. By signing, the official attests under the penalties of perjury (1) that all information in the petition is true and correct, (2) that he or she expressly agrees to abide by the terms of the labor condition application during the petition period, and (3) that the company will be liable for the reasonable costs of return transportation of the foreign national abroad if he or she is dismissed from employment by the employer before the end of the period of authorized stay.
It is also important to complete the I-129W form carefully. This form collects data on the education level, field of study, and salary of the alien, and is used to (1) report whether the employer is H-1B dependent or a willful violator, and, if so, to claim any applicable exemption from the additional LCA attestations associated with such status, (2) claim exemption from the $1,000 education and training portion of the filing fee, and (3) claim exemption from the H-1B cap annual numerical limitation.
If any of the forms are not completed and signed properly or the proper fee is not attached (see below), then the INS service center will "reject" the petition and mail back the entire filing.
If the petition materials were prepared by counsel, the employer must sign Form G-28, on which the attorney enters his or her appearance as the employer's representative. Most employers have their own attorney prepare the petition papers, but some direct the foreign national beneficiary to hire his or her own attorney or otherwise to manage the process. This is permitted under law, but the employer should remember that any attorney the foreign national hires would be representing the company before the DOL and the INS, regardless of who pays the fees, because the Labor Condition Application and H-1B petition process is, legally, the responsibility of the company sponsor, not of the foreign national.
The employer might not be comfortable being represented by an attorney with whom it does not have a regular relationship and who prepares forms and other documents for it which, when signed, create binding legal obligations to the government and to the foreign national. As a result, most employers retain their own corporate immigration attorney.
There are petition filing fees to be paid. In most circumstances the petition filing fee is $1,130, which consists of a base filing fee of $130 plus an additional fee of $1,000 mandated by ACWIA and AC 21, also known as the "education and training" fee. This total is normally remitted in a single payment. Certain categories of employers, and certain types of petitions, are exempt from the "education and training" component of the fee:
(1) The following categories of employers are exempt from the $1,000 education and training fee:
(2) The categories of petitions exempt from the fee include:
- primary or secondary education institutions,
- institutions of higher education, nonprofit entities affiliated with such institutions, and nonprofit entities which engage in established curriculum-related clinical training of students registered at such institutions,
- nonprofit research organizations (a "nonprofit research organization" is an organization that is qualified as a taxexempt organization under Section 501(c)(3), Section 501(c)(4), or Section 501(c)(6) of the Internal Revenue Code, has received approval as a tax-exempt organization from the Internal Revenue Service, and is "primarily engaged in basic research and/or applied research"), and governmental research organizations.
To claim the partial filing fee exemption, the employer checks the appropriate box on Form I-129W, identifying a basis for the exemption and submits the petition with one payment for $130.
- petitions making a second or subsequent request for extension of stay for the alien;
- an amended petition that does not request any extension of stay beyond the period previously granted; or
- a petition to correct an INS error.
It is important to note that the employer must pay the $1,000 education and training component of the filing fee. The INS will accept the fee only from the employer or its authorized representative, and the employer may not require the foreign national to reimburse or compensate it for the fee, nor may the employer accept any reimbursement or compensation offered by the foreign national.
The petition must include a Labor Condition Application certified by the Department of Labor in the occupational specialty. Where the LCA has been certified by DOL for multiple position openings, the petitioner should attach a "Detail Sheet" listing the beneficiary names, date of filing, and INS file numbers for all prior H-1B petitions that the LCA has been filed with, to demonstrate that all the "slots" have not been used.
If the requested action for the H-1B petition is an extension, amendment, or change of status in the U.S., the petition package must include evidence establishing that the beneficiary was lawfully admitted to the U.S., that said beneficiary has maintained his or her nonimmigrant status since admission, and that the petition is timely filed before expiration of the prior status and any applicable grace period. This typically includes copies of the foreign national's most recent I-94 admission record card, any INS approval notices for H-1B or another status, documents showing student or exchange visitor status, any INS employment authorization (such as an EAD card), and documents outlining the foreign national's activity in the prior status, such as copies of pay statements showing employment with a prior authorized employer, or a school diploma and transcripts. If the prior status was H-4 or another derivative status as the dependent of a principal foreign national, the documentation must also include evidence of the principal's maintenance of status.
The H-1B petition package should include a supporting letter from the petitioner on company letterhead, describing in greater detail than fits on the forms: (1) background information about the petitioner and the nature of its business, (2) the position offered and its requirements, and (3) the foreign national beneficiary's qualifications to perform the position offered. The purpose of the letter is to present in detail the petitioner's case for approval of the petition, clearly addressing all applicable legal requirements. Like the forms, the letter is typically signed by a human resources official or a manager/executive in the area where the foreign national will work.
The statements in the company letter should be substantiated with supporting documentation. At a minimum, the petition must include independent evidence generally showing (1) the nature and viability of the employer's business, (2) that it is capable in good faith of making the job offer, (3) that it has the financial ability to pay the wage stated in the petition, and (4) that the foreign national has the appropriate academic and/or professional credentials to qualify for the specialty occupation. The actual quantity and variety of supporting documentation the petitioner includes may vary, subject to the judgment of petitioner and counsel and depending on the extent to which the petition is straightforward or presents unique or unusual circumstances calling for special evidence or additional argument.
In general, all petitions will include at least the petitioner's annual report and general promotional literature, and a resume, academic degree, and transcript of the foreign national, with evaluation of the education credentials if they were earned outside the U.S. Smaller and less-established or start-up businesses should submit additional evidence concerning operational status and finances of the company. If the foreign national does not possess a straightforward academic degree normally required by the specialty occupation, the documentation should include professional training certificates, letters verifying prior employment experience, other evidence of qualifications, and/or college official or "recognized authority" evaluations. The employer may also wish to include special evidence concerning the "specialty occupation" status of the job, such as an expert report evaluating the position and its requirements.
Copies of supporting documents may be submitted rather than originals. Where the petitioner or attorney has access to original documents, it is good practice to submit "certified" copies prepared by the attorney.
The petition package is submitted in duplicate signed originals of the relevant forms accompanied by duplicate copies of the other materials. The INS will forward the duplicate petition package to any U.S. consulate for which the petitioner requested that INS provide notice of approval.
Finally, if the foreign national is in the U.S. and seeks to change or extend status, and is accompanied by dependent family members, there will normally be a separate application of the family members to change to or extend H-4 status. This application should be filed even if family members already have H-4 status for some extended period based on the principal's H-1B approval with a prior employer, in order to keep the family members' H-4 status periods co-extensive with any new period of H-1B status that is granted to the principal. Failure to take this step often leads to the family members' inadvertently overstaying their legally authorized stay in the U.S. The Form I-539 application of the family members is submitted as part of the overall H-1B petition package, and should include copies of the passport, visa, and I-94 admission record cards, any prior extension or change of status approval notices, evidence of the family relationship with the H-1B principal such as marriage and birth certificates, and a separate filing fee of $140.
Filing the Petition with INS
The H-1B petition is filed by mail or express delivery, with the INS service center having jurisdiction in the area where the foreign national will work. There are four service centers in Vermont, Texas, Nebraska, and California with jurisdictions roughly in the eastern, southern, central, and western states, respectively. If the petition refers to multiple locations where the foreign national will work and includes an itinerary, the petition is filed with the service center having jurisdiction where the petitioner lists an address on the I-129 form. Similarly, if an H-1B beneficiary plans to perform services at multiple client sites which are not known at the time of petition filing, the petition should be filed with the service center having jurisdiction over the employer's corporate headquarters or other "home base" for the worker, as shown on the petition.
In the past, large employers have qualified for centralized filing of all petitions with one service center regardless of the job locations in an arrangement known as "sole jurisdiction." This generally required the petitioner to have its corporate headquarters or a major operating center in the jurisdiction of the particular service center, and to be a filer of a "substantial" number of petitions. Petitioners accepted into this program must include a copy of the letter from INS granting "sole jurisdiction" with each petition filing. The INS is no longer accepting new participants in this program, but will continue to honor the program for participants who are already accepted.
After a petition has been filed, the service center will send counsel for the petitioner, or the petitioner if he or she is pro se, a "Notice of Action" acknowledging that the petition has been received. This will include an INS petition file number and a telephone number for checking the status of the case through an automated system or with an "Information Officer" during business hours. Using the receipt number, the status of a petition may also be checked on-line through the INS web site at http://www.ins.usdoj.gov, in a new "Case Status On-line" feature added in October 2002. The Notice of Action will also include a range of time it "usually takes" for processing the particular type of case. These estimated processing times, which are also reported on the automated systems can be inaccurate. Actual processing times for H-1B petitions fluctuate widely through the year depending on factors such as whether the petition is subject to the cap, the point during the annual fiscal year H-1B cycle at which the petition is filed, competing short-term resource allocation priorities at the service center, and directives from INS headquarters. A service center may suddenly stop processing a category of petition for several weeks or even months. These delays are usually unforeseen and cause extreme frustration as petitioners wait for a seemingly interminable period for processing to resume. There is also variation in processing times among the service centers.
The INS has developed an information system whereby the service centers now release "Just in Time" reports at least once a month to the American Immigration Lawyers Association which describe their progress in processing various categories of petitions and applications. The Information Officers also provide this information over the telephone. These reports are usually more accurate than the "official" processing times stated in the receipt notices. Most H-1B petitions are processed to the initial response stage within one to three months, except when the cap quota has been reached for that fiscal year. Occasionally, however, particularly at the California service center, processing times have reached five months or more.
Petitioners frequently have an urgent business need for the services of the H-1B professional and feel they will be harmed by waiting an unpredictable and lengthy processing time and, for this reason, they wish to have petition processing expedited. To address this need, Congress authorized a "premium processing" program for filing of employment-based petitions with INS whereby "business customers" may receive certain enhanced services in return for paying an extra $1,000 fee, to be used by INS for additional staff and infrastructure improvements. This process was made available for H-1B petition filings effective July 30, 2001. In a "premium process" filing, the petition is submitted with the additional fee and a new form I-907, to a special address established at the Service Center solely for such filings. The petitioner will receive a guaranteed response to a petition filing within 15 calendar days, either an approval, request for additional evidence or notice of intent to deny, and will have fax and/or e-mail access to the service center for responding to an RFE and receiving notification of actions taken. If the response is a request for evidence, a new 15-day guarantee period will begin when the additional evidence is submitted. The petitioner can include a self-addressed overnight delivery service envelope for immediate shipment of the Approval Notice.
Premium processing has proved popular despite the high fee because it enables petitioners and beneficiaries to engage in regular planning for a start date, in scenarios where employment cannot begin until petition approval. "H-1B portability" was also designed to alleviate the frustrations of lengthy adjudication and consequent harm to employers, at least in "H-1B transfer" cases, by allowing such beneficiaries to begin work for the new company much earlier, and does not require any additional fee. Premium processing is thus most useful in out-of-country cable notice petitions, or change of status petitions where the previous status does not allow the employment. In all cases though, premium processing has the benefit of getting an answer from INS promptly and eliminating long periods of uncertainty in the process.
Prior to the availability of "premium processing," each service center had a defined procedure to request expedited handling for urgent petitions. These procedures have now been discontinued for all but non-profit petitioners. In making the request, such a petitioner must be able to demonstrate a true humanitarian emergency such as a life-or-death need for the beneficiary's services, or a truly extraordinary business need, tied to specific dates, with a major, demonstrable loss of revenue or similar harm that will result if the person is not able to perform the services requested without delay. The petitioner must also be able to show that the expedite request does not result from its own failure to take timely action when it became aware of these circumstances. In practice, expedite requests that state generally that a person is needed "as soon as possible" for an "urgent project" are almost never granted, no matter how vociferous the petitioner's protestations that the project is vital to the company. If the petitioner can afford it, premium processing is the only way to be sure to have the urgent need addressed.
Requests for Evidence
After its initial review of the petition, the service center may send the petitioner a "Request for Evidence" ("RFE") indicating that certain required initial evidence is missing, or that the evidence submitted either does not fully establish eligibility for the requested benefit or raises underlying questions regarding eligibility. The petitioner is given twelve weeks from the date of the notice to respond. No extension of this twelve-week response time is possible, nor are interim benefits granted during the period prior to the submission of additional evidence. During the twelve-week response period the petitioner may (1) submit all the requested initial or additional evidence, (2) submit some or none of the requested evidence and ask for a decision based upon the record, or (3) withdraw the application or petition. If the petitioner does not respond within the time limit, the petition will be considered abandoned and will then be denied.
The RFE will list the specific areas of eligibility under the applicable standards about which the INS adjudicator has concerns, quoting liberally from the regulations and listing categories of additional evidence the INS requests in order to respond to its concerns. In recent years practitioners have complained to the INS about overly broad "shotgun"-style Requests for Evidence which do not give a clear picture of the specific areas of concern but vaguely advise the petitioner that it must submit additional evidence in all areas, or recite very long, standard lists of documents, many of which the petitioner might have already sent, or which might be completely inapplicable to the case. In response, INS has stated that it will train its officers to be more focused in their requests.
Nevertheless, the requests can go on for several pages and appear to impose a daunting burden. Many petitioners' first reaction is to call the INS and complain, or try to speak to someone to clarify the request. The service centers will not discuss the requests over the telephone, and Information Officers are instructed to tell petitioners to prepare the response as best and thoroughly as they can and to argue in a letter if they feel certain of the requests are inappropriate or unnecessary. Under the regulations, the petitioner has only one opportunity to respond.
The petitioner should resist the temptation to hastily prepare an application because of an urgent need for the beneficiary's services. It is prudent to take the time to compile thorough supporting documentation and/or prepare additional argument. An RFE invariably requires submission of more documentation on a particular issue than that which might have been sufficient in the initial submission, and this can cause significant delay and expense. For these reasons, in the initial submission it is best to err on the side of more thorough preparation so that the case will be approved upon initial submission without the need to respond to a Request for Evidence.
Regular practitioners in the H-1B field tend to share information and can thus spot trends in service center issuance of RFEs. Periodically, one service center or another will seem to be issuing more RFEs or will seem to be concentrating them on particular issues. Sometimes this comes from a shift in personnel in the H-1B adjudications area, where newer examiners tend to apply evidence criteria more strictly, and other times from a service center initiative to focus on a particular area of concern in the H-1B program.
In submitting the petitioner's response to the RFE, it is important to return the RFE itself with the evidence, which will facilitate the new submission being matched up at the service center with the file for final review.
If there is a request for change or extension of status pending and the beneficiary's prior status has expired, the foreign national may continue to wait legally in the U.S. throughout the RFE process. Similarly, work authorization arising under the H-1B provision of AC 21 will continue.
The Notice of Approval
After consideration of all the evidence, the service center may approve the petition. It will then send the petitioner a written notice of the approval on INS Form I-797 ("Notice of Action") containing the beneficiary's name, the classification approved (H-113), and the petition validity period. The notice will specify the U.S. consulate that was notified if the petition requested such action. If the petition requested a change or extension of status for the beneficiary in the U.S. and the service center finds the beneficiary eligible for change or extension of status, it will approve that request at the same time. In such a case the notice of approval will include a tear-off section at the bottom specifying the new or continued H-1B status for the person in the U.S. and the period of stay authorized. A portion of the tear-off section constitutes a new "Form I-94 Departure Record Card" to replace the I-94 card the person would have been issued upon his or her last entry into the U.S.
It is important to check all the details on the notice of approval right away, particularly the spelling of the beneficiary's name, his or her birth date, the petition validity period, and the I-94 Departure Record Card number (which should match the number on the prior card). If any errors are discovered, a new notice of approval should be requested immediately to correct the mistakes. Each service center has its own procedure.
In some circumstances, the service center may approve H-1B classification for the beneficiary but not a requested change or extension of status. The petition is then "converted" to a general petition, and the petitioner is usually given the opportunity to request notification to a particular consulate. Expert counsel should be sought before the foreign national departs the U.S. to apply for an H-1B visa at a U.S. consulate, however, because the underlying reason for denial of the change or extension of status may also cause problems at the consulate with the visa application, leading to the foreign national being denied permission to return to the U.S. at that time (or permanently).
Normally, the service center processes any application for change to or extension of H-4 status for family members along with the H-1B petition for the principal beneficiary, and will send a separate Form I-797 Notice of Action approving the H-4 status for each family member at the same time as the H-1B notice of approval. All details on these notices should be checked carefully, particularly the H-4 validity period to make sure it is co-extensive with the principal's H-1B period. Sometimes the application for change or extension of H-4 status becomes separated at the service center from the primary H-1B petition, and it therefore takes longer to process. It is important to take any necessary follow-up steps to make sure the H-4 application is properly approved, and that each family member receives his or her appropriate notice, to avoid any problems of inadvertent overstay or unlawful presence.
The H-1B Visa Application and Entry into the United States
For a beneficiary located outside the country, the next step is to apply for an H-1B visa at the U.S. consulate in his or her country of residence. This generally requires submission of a passport, certain visa application forms, original INS notice of approval, copies of the I-129 Forms, the LCA, a company supporting letter and other petition supporting documents, an original academic diploma and transcript, other relevant professional credentials, photographs, and a fee. The foreign national must report for an interview to answer basic questions about the company, its job offer, and the foreign national's claimed credentials. The purpose of the visa interview is not to readjudicate the petition but to verify through face-to-face questioning that all the representations about the job and the foreign national's qualifications contained in the petition are, in good faith, true.
Actual procedures at U.S. consulates around the world for visa applications vary based on the volume of applicants who are seen at the consulate, concerns with fraud, and other local practices. In some posts, for example, an applicant must make an appointment for an interview several weeks in advance, whereas in others interviews are conducted on a walk-in basis or are not required at all unless the consulate specifically requests one after initial review of the application which is submitted by mail, courier, or through a drop-box on consular premises. The actual level of documentation that must accompany the application also varies. Some consulates will issue a visa based on the Notice of Approval, without additional materials, or even based only on the INS cable notification. Others require all the materials listed above and scrutinize them carefully. Generally, consulates in western European countries are more flexible and "user-friendly," whereas consulates in India, China, Russia, and Ukraine, among other locations, have more strict policies and procedures due to the high volume of applicants and concern over alleged patterns of applicant fraud.
It is important to understand that the relevant government agency the applicant reports to at a U.S. consulate is the U.S. Department of State ("DOS"), not the INS. DOS has its own guidelines, policies, and regulations for issuance of visas stated in the "Foreign Affairs Manual" ("FAM"), a reference governing all operations at the consulates.
The consulate will generally not question a decision INS has made in an H-1B petition based on the evidence before it. However, petition approval does not per se establish that the foreign national is eligible to receive a visa. If the consular officer is not satisfied with the answers provided in the interview, he or she can refuse the visa. The typical reasons for visa refusal that consulates give are: (1) the employer is not making a bona fide job offer, because it does not have sufficient operations or financial resources to show a need for the alien's services or ability to pay the wage offered, (2) the job offered is not in fact a specialty occupation, (3) the alien does not have the proper qualifications for the specialty occupation, or (4) there has been some other fraud or misrepresentation.
There are two types of refusal actions taken by consulates: (1) the consulate might simply inform the person that he or she has not presented sufficient documentation to warrant issuance of the visa, advises as to what is needed to satisfy the concern, and allows the person an opportunity to return later with the requested items, or (2) in the more problematic scenario, the consular officer learns, during the interview or a follow-up investigation, of specific information "unavailable" to INS in its adjudication process that contradicts information in the petition filing. In this case, the consulate can deny the visa application and refer the petition back to the INS with a report summarizing the officer's concerns and recommending that the petition approval be revoked. In some consulates, a large percentage of H-1B visa applicants are, after an initial screening interview, referred for a more detailed interview specifically designed to investigate potential fraud in the foreign national's credentials. Most fraudulent representations concern failure to possess academic degrees or appropriate experience and/or technical skills. Consulates scrutinize the bona fides of a company and its job offer carefully if the company is small or a start-up. The consular officer may require more information than the INS did regarding the company's "ability to pay" the wage, for example, such as quarterly tax returns and current financial statements, and the officer may look very closely at the documented level of gross income compared to the number of H-1B applicants being processed. If the consulate is not satisfied that demonstrated cash flow will immediately support salaries for the entire group of workers, it will refuse the visas. This stems from a concern that a peson not be admitted to the U.S. and then become a "public charge" due to the employer's nonpayment of a promised salary. This concern is more acute where there are H-4 family members applying with the principal, all of whom will require support from the putative salary.
In the wake of the 9-11 terrorist attacks, Congress and the State Department have enacted several measures to enhance national security in the visa application process. Under the Enhanced Border Security and Visa Reform Act of 2002 ("EBSVRA"), for example, consulates must conduct a special background check on all visa applicants from certain countries designated "state sponsors of terrorism" (currently North Korea, Cuba, Syria, Sudan, Iran, Iraq, and Libya), which can add significant delays to the normal visa processing period. On its own initiative, through most of 2002, the State Department imposed a special 20-day background check for all male applicants aged 16 to 45 from a broader list of 26 predominantly Muslim countries, which in practice caused months-long delays in visa processing. That procedure has ostensibly ended, but at its discretion the State Department may impose additional visa-screening procedures at any time. Applicants should plan accordingly and be prepared for delays.
Any spouse or dependent children under twenty-one years of age planning to accompany the principal H-1B foreign national to the U.S. may apply for H-4 visas at the same time as the principal, or they may apply at a later date and "follow to join." Note that persons in H-4 status are not authorized to accept employment. They may, however, engage in study at a public or private school.
The H-1B and H-4 visas are normally issued for a period coextensive with the petition approval. Usually, the visas are valid for multiple entries into the U.S. At some consulates "reciprocity" issues with the host country dictate that these visas be issued for a shorter period or for fixed numbers of entries.
If the H-1B visa is granted, the foreign national and any family members who have H-4 visas may then travel to the U.S. At the port of entry, they may request admission for the period of the petition approval plus ten days. The ten days, if it is added to the period of admission, allows a grace period at the end of the petition validity for a person to wind up affairs and leave the U.S. It does not extend authorization to work for that period. The beneficiary may also seek entry up to ten days before the beginning of petition validity to get settled before beginning work. Having an H-1B or H-4 visa does not guarantee admission, however; the INS inspector at the port of entry may interview the foreign nationals and refuse admission if grounds of inadmissibility are identified.
Canadian citizens, who are visa exempt, may use the Notice of Approval to apply for admission directly at the border without going through the visa process.
In another new procedure added in the wake of 9-11, certain entering H-1B and H-4 nonimmigrants will be subject to "special registration." These persons will be fingerprinted and photographed at the time of admission, and then must report to INS, in person, 30 days after arrival, every 12 months, upon a change of address, employment or school and when departing. At the present time, those subject to the procedure upon entry are all nationals of Iran, Iraq, Libya, Sudan and Syria. Males 16 or older who are nationals or citizens of those countries as well as an expanded list of Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates or Yemen, who entered the U.S. prior to certain dates in September 2002 must also report to INS for registration.
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.
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. 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."  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.
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. 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
 Indeed, the regulations expressly provide that the beneficiary is "not a recognized party" in the petition proceeding.
 Having an arrangement where the beneficiary pays legal or other costs associated with the preparation and filing of a Labor Condition Application and/or H-1B petition is also inadvisable because it complicates the "required wage" analysis in the LCA process. DOL regulations characterize such costs as the "employer's business expense" and specify that any imposition of the costs on the beneficiary, whether by payroll deduction or by the beneficiary directly paying the costs outside the payroll system, constitutes an "unauthorized deduction" from the employee's wages that are used in satisfaction of the "required wage" obligation. As discussed below, there is a separate express, absolute prohibition on the employer imposing payment of the $1000 education and training portion of the filing fee on the beneficiary.
 Department of State (DOS) Form DS-156, and for males aged 16 to 45, DS-157; Form DS-157 is a new form added this year asking a variety of background information on education, training, career experience, travel history and any participation in armed conflict.
 Most consulates have web sites which can be accessed through http://usembassy.state.gov or http://travel.state.gov/links.html to review local information n procedures and requirements. A directory of other consular contact information may be found at http://travel.state.gov/visainfo.html.
 A useful table of visa reciprocity may be accessed at http://travel.state.gov/visa_services.html.
 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.
 See http://www.ins.usdoj.gov under "Forms On-line."
 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.
 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.
 Information on visa revalidation by mail is available at: http://www.travel.state.gov/revals.html.
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 a consolidated reprint of Articles 20-24 which originally appeared in the beginning of each week's issue as of the December 2, 2002 issue of Immigration Daily and is based on a chapter George N. Lester 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.
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