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H-1B Article 20: Preparing And Filing The H-1B Petition- Part 1

by George N. Lester IV

George N. Lester IV 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:

  1. The alien was lawfully admitted into the United States,

  2. The petition is filed before the date of expiration of the authorized period of stay,

  3. The petition is "nonfrivolous," and

  4. The alien has not been employed without authorization in the United States subsequent to admission.

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.

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, Immigration Daily, March 25, 2002]. With the stricter scrutiny and additional background check procedures that visa applications now face, many consider the "third country national" process to be risky and opt to return to the home country for the application.

A problem arises when a foreign national has "overstayed" by remaining in the U.S. beyond the authorized expiration date of a prior status, or has affirmatively been found in violation of status by the INS. In this situation the person is "unlawfully present." At a minimum, the person must return to his or her home country to apply for an H-1B visa to be eligible for re-admission in H-1B status, unless a special "extraordinary circumstances" exception applies to allow visa application in a third country. If the length of time since the status expiration or violation finding has exceeded, respectively, 180 days or 1 year, the person will be subject to a three- or ten-year bar on re-entry as a consequence of the "unlawful presence." The employer should immediately seek expert counsel if one of these situations is presented. [Further strategies for addressing "out of status" problems will be discussed in a later article in this series.]

6. Counting Against the H-1B Cap

The cable notice and change of status in the U.S. petition scenarios are considered to be new H-1B petitions subject to the H-1B cap, unless the foreign national has been previously "counted" pursuant to an H-1B petition approved within the prior 6 years, and has actually been in the U.S. in H-1B status within the previous 1 year. The change of employer, concurrent employment, amended petition, and extension of status scenarios all involve a beneficiary who is already in the U.S. in H-1B status, and they are therefore not subject to the cap. Certain petitions are not counted against the cap regardless of the requested action or H-1B history of the beneficiary. These include petitions by an institution of higher education or a related or affiliated nonprofit entity, by a nonprofit research organization, by a governmental research organization, or for certain physicians who have received a waiver of the "J-1 foreign residence requirement" to practice in a medically underserved area.

Next Week: More Important Issues in Preparing the Petition

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 twentieth in a series by George N. Lester of the Foley Hoag LLP Immigration Practice Group based on a chapter he authored titled "Specialty Occupation Professionals," in the treatise Business Immigration Law: Strategies for Employing Foreign Nationals, edited by Rodney A. Malpert and Amanda Petersen, and appears here with the permission of the publisher. Published by Law Journal Press. Copyrighted by NLP IP Company. All rights reserved. Copies of the complete work may be ordered from Law Journal Press, Book Fulfillment Department, 105 Madison Avenue, New York, New York 10016 or at 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.

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