BUYING TIME: Practice Strategies for H-1B Workers Coming to the End of the Line and Related Issues
The November 2002 amendment supplied a fix. Congress pared down the requirements for gaining more time in H-1B status. Now, as long as at least 365 days have passed since the filing of a labor certification application, that fact alone may make an H-1B worker eligible for additional time in the United States while awaiting adjudication of that application or the immigrant visa petition filed after the labor certification application is approved.
The November 2002 amendment presents interesting questions about and possibilities for extending H-1B status beyond six years, and makes central to immigration practice strategies that will enable an H-1B worker to remain in the United States at least 365 days after a labor certification application has been filed. This article explores those strategies, and investigates the ways in which the amended AC21 §106 may be used to bridge a gap between falling out of status on the one hand, and extending lawful status on the other. In the absence of regulations, what we offer are plausible interpretations of the law and ideas for approaching problem cases, and nothing more than that. While we believe our analysis and reasoning are cogent, without the benefit of case law or regulations, what we offer is just that: our analysis and reasoning.
Recapture: Getting Time Back
While the legislation clearly permits extensions of H-1B status for those whose labor certification applications have been pending for 365 days before they reach the end of their sixth year in that status, neither the INA nor the Immigration and Naturalization Service (INS or Service) regulations explain how to measure time spent in H-1B status. What happens if an employer files a labor certification application for one of its H-1B workers after the sixth year has already begun? Suppose an employer files a labor certification application for an H-1B worker 90 days into his sixth year of H-1B petition validity. The employer wants to know if there is any possibility of obtaining additional H-1B time for this employee.
The first strategy to explore is recapturing time: Did the worker spend at least 90 days outside the United States during the past five years that you can tack onto his period of authorized stay in the United States? Put another way, at the end of the sixth year, can you file a petition seeking to recapture the days that the H-1B worker has been out of the country, and if the petition is approved, will you have tacked on enough time to allow the labor certification application to be pending for 365 days while the employee has been in lawful H-1B status?
Statutory Provision
The “period of authorized admission” for an H-1B nonimmigrant, the INA provides, “may not exceed six years.” The term “admission” means “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” But how do you calculate the amount of time that one is in the United States in lawful H-1B status? The statute is silent on that point.
INS Regulations
INS regulations do not offer much guidance on how to calculate time spent in H-1B status. The plain meaning of the regulations would have you count only days someone was actually in the United States. One provision, for example, which deals with H-1B limitations on admission, states that an H?1B worker “who has spent six years in the United States may not seek extension.” Another states that “[w]hen an alien in an H classification has spent the maximum allowable period of stay in the United States, a new petition under section 101(a)(15)(H) . . . of the Act may not be approved unless that alien has resided and been physically present outside the United States, except for brief trips for business or pleasure, for the time limit imposed on the particular H classification.”
Another regulation allows H-1B status to continue without limit if the alien does not reside continually in the United States and his U.S. employment is for an aggregate of six months or less each year. To be eligible for this exception, you merely count the days. If the days in the country total fewer than 183 a year, you can keep extending. There is no requirement that the days out be meaningfully interruptive, or that they be taken in blocks of time. It’s simply an exercise in counting days in and out of the United States. One INS Service Center was asked the following: Is it true that an H-1B worker who works outside the United States for more than six months in a calendar year does not have that year counted against the six-year cap? Its answer was unambiguous: “True.”
Another regulation is quite explicit about the difference between days in and days out of the country. After an H-1B worker reaches the end of his status, a new H-1B petition will not be approved unless he’s resided and been physically present outside the United States for a year. While brief trips here during that year do not interrupt the year, they also “do not count towards fulfillment of the required time abroad.” In other words, the Service is saying loud and clear that days in do not count as days out.
The explicit language of the statute and the regulations provide that an H-1B nonimmigrant must be in the United States to be in H-1B status. Moreover, the Service will not permit a petitioner to file for an extension of H-1B status unless the beneficiary is in the United States when the petition is filed. Why? Because, the INS insists, if the H-1B nonimmigrant is not physically in the United States, he has no status to extend. Status, that all-important concept that defines one’s presence here, evaporates once one departs. Consider the INS position on travel abroad while an application to change nonimmigrant status is pending. The minute you leave the country, the application is deemed abandoned. Why? Because it is generally recognized that if you’re not here, you have no status to change.
The INS Position on Recapturing H-1B Time
Although INS regulations and policies treat days in the United States quite differently from days outside the country, when it comes to the issue of “recapture,” the Service disregards the distinction. Days outside the country, the INS says, can still count as H-1B days and will be subtracted from the six-year limit on status, the same as days spent inside the country. You can, it appears, be in two places at the same time, unless certain conditions are satisfied.
The INS has issued at least two statements on recapturing time, both from 1994. One is a letter from Jacquelyn Bednarz, who at the time was Chief, Nonimmigrant Branch Adjudications. The other is a memorandum from Lawrence Weinig, then Acting Associate Commissioner. The two say essentially the same thing: The INS recognizes that, at times, H?1B (and other) nonimmigrants must leave the United States for “extended” periods for personal or job-related reasons during the validity period of a petition. The Service allows for a recapture of that time if the absence was “meaningfully interruptive.”
What’s meaningfully interruptive? And to whom? If you ask an employer, the response might be “one day.” If an employee takes time off, especially unscheduled time off, that could be quite meaningfully interruptive of an employer’s operations. But that’s not what the Service seems to have in mind. It is also unclear what “interruptive” refers to: To rendering of U.S. services? To the U.S. employer’s operations? To the alien’s continuity of U.S. residence?
According to the Bednarz letter, an absence is meaningfully interruptive when an alien must leave the United States for medical treatment or extended work details. Vacations and weekends, the Service says, do not count. The Weinig memo, while concurring with the Bednarz letter, adds a curious gloss: “Short work details to other countries for the United States employer do not interrupt the alien’s employment in the United States,” he says. And why? Because, he adds in the sort of non sequitur that causes one to scratch one’s head, “travel is common in many industries.” What’s that again? Because “short work details,” which, of course, are not defined, take place all the time and are necessary for the free flow of business, the time spent out of the United States by an H-1B worker: (a) is not meaningfully interruptive; and (b) counts against the allowable period of stay in the United States in H-1B status. It makes no sense.
So let’s read some more. “It is the opinion of this office,” trumpets the Weinig memo, “that time spent out of the United States during the validity period of a petition must be counted toward the alien’s maximum period of stay in the United States. . . .” Should we restate that? The INS says that time out of the United States counts as days in the United States. But there’s a twist. The days out will be counted as days in only if “the time spent outside of the United States was not interruptive of the alien’s employment in the United States.” Periods of time outside the United States that are considered a normal part of the work year, such as vacations, holidays, and weekends, are not interruptive, according to Weinig. Maternity leave, extended medical leave, or “long term details to an employment location outside the United States” are interruptive. If the period out is deemed “interruptive,” it can be recaptured; if deemed not interruptive, you lose it.
In Steps a Federal Court
To no one’s surprise, the Service position on recapture was eventually challenged in federal court. In Nair v. Coultice, the alien had been out of the country for 97 days during the previous six years. The court didn’t even ask why. It didn’t want to know if the time had been “meaningfully interruptive” of employment, if the days had been taken all at once or in small bites, if the time away included weekends, vacations, holidays, if the reason for the absence involved medical treatment, or if there had been a “long term detail” abroad. It simply did not matter to the court why Mr. Nair had been outside the United States. All that mattered was that for 97 days he was not here.
The court found that the INS’s position in opposing Mr. Nair’s effort to recapture his time outside the United States conflicted with its own regulations, which state that an H-1B nonimmigrant “who has spent six years in the United States” may not seek an extension of his stay. The judge, in other words, did something the INS refused to do. He read the regulation and took the words at their face value: “Here, the plain language of the regulation would appear to compel the conclusion that the six-year period only includes time spent physically present in the United States.” The outcome? Mr. Nair got back the 97 days.
Practice Strategies
To avail oneself of the 365-days-pending rule enacted in AC21 §106 and amended in 2002, it may be necessary to go the recapture route. If by the end of six years of H-1B status a labor certification application has not been pending for 365 days, a petition should be filed to reclaim any H-1B days spent outside of the country during the petition validity, if, by doing so, you can recapture enough time to bridge the gap.
How to prove that a foreign national has not been in the United States? First, include with the I-129 petition papers a clear and concise grid of all the days gone, broken down month by month within each year, with monthly subtotals and a grand total at the end. Include a letter from the employer, if applicable, explaining why the H-1B worker was gone, and providing details about the overseas assignment. An affidavit from the H-1B employee also helps. Sometimes the employer or employee may have kept travel records, including expenditures for airline tickets, hotel rooms, out-of-pocket disbursements, and telephone records. Credit card purchases made out of the country are noted on monthly billing statements, and frequent flyer mile records can be of some value. Entry stamps in the passport are useful, even if difficult to decipher, and some countries, such as Russia, stamp the passports of their nationals both when they enter the country and when they leave. All should be included in a lucid, easy-to-understand package.
Extending the H-4 Status of Family Members Who Have Not Left the United States
Assume the H-1B worker has been outside the United States for a substantial period of time during the past six years, posted abroad for extended work details that you are certain you can recapture. His wife and children, however, have never left the country during the past six years. Can you file an application to extend their stay, asking to add on the days that the principal alien is seeking to recapture?
Maybe. Some adjudicators will allow it, and if your case is thrown back for additional evidence, you should insist on getting the days added. Here’s why: Service regulations provide that “[t]he spouse and unmarried minor children of the beneficiary are entitled to H nonimmigrant classification, subject to the same period of admission and limitations as the beneficiary.” One argument is that the regulation entitles H-4 dependents to a period of stay that is coextensive with that of the principal alien. The limitations that apply to the H-1B principal are the same as those that apply to the H-4 dependents.
A second argument can be made on policy grounds. It makes no sense for the Service to turn down the extension application of the dependents and send them home if the H-1B alien can recapture time and stay here.
A third argument can be made on statutory grounds. As the American Immigration Lawyers Association (AILA) has pointed out to the INS:
The six-year limitation that has been imposed upon H-4 dependents is strictly a creature of INS invention. There is no statutory basis for this limitation. Congress specifically applied the six-year limit in INA section 214(g)(4) to nonimmigrants described in INA section 101(a)(15)(H)(i)(b). That latter section describes only H-1Bs. In drafting regulations, INS apparently inferred, without the express direction of Congress, that such a limitation includes “the alien spouse and minor children.” Thus, if INS is to continue to insist that H-4s are subject to the limitation imposed by Congress only on H-1Bs, it must also conclude that any exemptions from that limitation also apply to H-4s.
The INS, apparently agreeing, replied as follows: “This issue will be addressed in forthcoming regulations. INS seeks to administer the INS in ways that keep families together or reunites families. We do not believe that our approach will be any different in this situation.”
Here Today, Gone Tomorrow
Let’s return to our first hypothetical. A labor certification application was filed 90 days after the beginning of year six of an H-1B worker’s U.S. stay. Assume it is now five-and-a-half years into his H-1B employment. His employer, which has many offices abroad, decides to post him to London for a four-month assignment. The worker leaves the United States for 120 days to work in England. He returns to the United States with two months left on his H-1B petition approval. The employer submits a petition to the INS seeking to recapture the four months that he’s been gone. Assume that the time he was out of the country has been “meaningfully interruptive” of his U.S. employment.
The petition to recapture the 120 days is filed under premium processing and is approved. The alien’s stay has been extended for four months beyond the “normal” six-year cap. And while he’s here on that extended four months, his labor certification application has exceeded the 365-day mark. It seems to us that this is a perfectly good case for an H-1B extension to year seven.
How Do You Measure the 365 Days?
What happens if the labor certification application reaches the 365-day mark while the petition to recapture time is still pending at the Service Center?
Suppose that today is June 1, 2003, and that the H-1B worker has been outside the United States for 120 days during his six-year H-1B petition validity, which expires on July 1. On June 1, a labor certification that had been filed for him has been pending for only 300 days. Convinced that his time abroad is recapturable, you file an H-1B extension petition for him on June 1 under normal (not premium) processing, seeking to extend his stay by the 120 days he was abroad. Assume that it is now August 5, 65 days after filing the petition extension, and 35 days after the “normal” six-year period has come to an end. At this point, the labor certification application has been pending for 365 days, and the H-1B recapture request is still pending at the Service Center. Is the H-1B worker eligible for a seventh year in H-1B status? We believe he is. Here’s why:
Time Is on Your Side
To ameliorate the harshness of the three-year bar to admission brought about by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Congress grafted a tolling period onto the statute, stopping the clock on unlawful presence for 120 days while a timely filed, nonfrivolous petition for extension of stay is pending. Since petitions often go unadjudicated for longer than the statutory 120-day tolling period, the Service decided to designate as a period of stay authorized by the Attorney General the entire period during which a timely filed, nonfrivolous application for extension of stay is pending with the Service, provided, of course, that the alien has not engaged in any unauthorized employment. What does that mean in our case? It means that during the period that the petition extension is pending, even though the pending time brings the petition beyond the “normal” six-year limit on H-1B stays, the alien remains in lawful H-1B status, no matter how long it takes the INS to decide the recapture request.
Whatever Do They Mean by “Nonfrivolous”?
To qualify under the tolling provision and escape an unlawful presence problem, the extension request must be “nonfrivolous.” What is a “nonfrivolous” petition? Let’s look at it the other way: What is a frivolous one? The INS states that, to be frivolous, a petition must have no arguable basis in law or fact or be filed for an improper purpose. The State Department has added its own gloss to those parameters, stating that “it is not necessary to determine that the INS would have ultimately ruled in favor of the alien” to find an application nonfrivolous. Clearly, then, a bona fide petition to recapture time is not frivolous, and the time during which it is pending is time in which the H-1B worker remains in lawful H-1B status.
What If the Recapture Petition Is Denied?
According to a March 2000 INS memorandum, if an extension of stay application is denied because it was frivolous, all time after the expiration date on the alien’s I-94 card will be considered unlawful presence. If the application is denied for another reason, the period of unlawful presence begins to accrue on the date of the denial, not the date that the I-94 expired. We submit that, if the H-1B worker’s labor certification application has been pending for 365 days while awaiting a decision on the recapture petition, a petition for the seventh year H should be immediately submitted. Even if the recapture petition is ultimately denied, unlawful presence would not begin to accrue until the denial date. By that time a timely filed petition for year seven would be pending, submitted when the H-1B worker was in valid status. Of course, while a recapture petition is pending, the alien should not leave the United States, because he will not have a valid H-1B petition approval or visa to re-enter.
Whose Case Is It, Anyway?
A Couple with a Couple of H-1Bs
The following question has come to our attention more than once: The employer of an H-1B worker filed a labor certification application while the employee was in the fifth year of H?1B status. The H-1B employee has a wife who is also in H-1B status. Unfortunately, her employer never filed a labor certification application for her. It is now drawing to the end of the couple’s six years in H-1B status, and the husband’s labor certification application is still pending. Clearly, the husband is entitled to a seventh year in H-1B status. What about the wife? She knows she can change her status to H-4, but doesn’t want to. She wants to continue working. Any chance?
Let’s look again at the newly amended §106(a) of AC21. It says that the six-year limit does not apply to any nonimmigrant in H-1B status provided that 365 days have elapsed since the filing of: “[a]ny application for labor certification . . . in a case in which certification is required or used by the alien to obtain status under section 203(b) of [the INA].”
Before its amendment in 2002, §106(a) didn’t say “any” application for labor certification. It said extensions were possible if 365 days had elapsed since the filing of “a” labor certification application. So one answer is that a colorable argument can be made that, even for the wife, this is a case in which “certification is required or used,” since the husband’s certification is what would eventually be used for the wife to obtain lawful permanent residence status. And since the argument is colorable, it is also nonfrivolous.
However much we like this argument and believe it has a basis in law, we don’t think the INS will interpret the statute to allow for the wife’s continued stay in H-1B status. For one, the Service loathes granting benefits if it can avoid it. For another, the amended statute also contains language about continuing to grant extensions in one-year increments until such time as a final decision is made “to deny the application,” or, if it is granted, to deny “a” petition “filed on behalf of the alien.” The INS might use this language to impute congressional intent that only the named beneficiary is intended to benefit. The INS might also cite legislative history to say no to the wife’s petition extension. For example, a floor statement by Sen. Patrick Leahy of Vermont mentions “H-1B aliens who have labor certification applications caught in lengthy agency backlogs.” The INS might interpret this language to cover just the named alien. But there’s enough of an argument in favor, we think, to get past the frivolous test.
Is there any harm in trying to extend the wife’s H-1B status? We think not. During the pendency of the petition, no unlawful presence will accrue, and the H-1B employee will be work-authorized for up to 240 days, if the petition adjudication takes that long. If the INS issues a request for evidence, one would have a choice: respond to it, or apply for a change to H?4 status and withdraw the petition. If the INS denies the petition extension request, an appeal is an option, although it may carry some risks. The INS may claim that the time spent appealing a denial counts as unlawful presence. If the appeal takes more than 180 days, as it may well, and is ultimately denied, the alien is subject to the bars. If the appeal is successful, the time relates back to when the I-94 expired.
Substitution on a Labor Certification Application
Let’s assume that a labor certification application was filed for a worker three years ago and has just been certified. The only problem is that the employee just left the job for which certification was sought. The employer was able to locate a suitable replacement, who met all of the requirements for the labor certification when it was initially filed. There’s just one rub: He’s two months short of exhausting six years of H-1B status. Can the employer use the labor certification to get a seventh year of H-1B status for the new employee? The answer is yes.
The statute is clear on its face. As amended in 2002, §106 of AC21 permits extensions of H-1B status beyond six years if 365 days have passed since the filing of any labor certification, and until such time as a final decision is made to deny the ensuing I-140 petition. The statute does not require that the labor certification application be filed on behalf of the same alien seeking the seventh year extension. Moreover, we believe that the amended statute was written with substitution of aliens in mind. For example, Sen. Edward Kennedy’s office floated language on the amendments to §106(a). In suggesting that the statute read: “Any application for labor certification . . . in a case in which certification is required or used by the alien to obtain status under section 203(b) of such Act,” his office said: “This would clarify the pool of people in H-1B status who could use the time exemption to anyone who uses a labor certification . . . such as H-1Bs who use labor certifications that were filed for other individuals. . . .”
Leapfrog
The Service has given an “alien-based” reading to §106 of AC21. In correspondence with one of the authors, the INS stated that a seventh year of H-1B status may be available to an employee who was the beneficiary of any labor certification application, or any immigrant petition, even one filed by a prior employer. Let’s review the facts of that case.
An H-1B nonimmigrant was reaching the end of his sixth year of H-1B status on June 1, 2002. In March 2002, he was employed by Employer B, which had filed a labor certification application for him on May 4, 2001. He was also the beneficiary of an approved labor certification application and an approved immigrant visa petition filed for him by his former employer, Employer A. Employer A’s petition had never been withdrawn, and the priority date of the labor certification application was November 18, 1999. Because of backlogs at the state department of labor, there was no chance that Employer B’s labor certification application would be adjudicated in time for the worker to benefit by AC21 §106(a).
Unless, of course, he could benefit by the filing of the labor certification application and immigrant visa petition by Employer A. And that’s what the Service signed onto. “We agree,” said the INS, that “the language of AC21 appears to allow the employer of an H-1B nonimmigrant to seek an extension of stay beyond the 6th year as long as the alien is the beneficiary of any labor certification application or any immigrant worker petition. The labor certification application and Form I-140 need not relate to the alien’s current employment situation.”
Let’s play around with the facts of this case and see where it takes us. Suppose that the labor certification application filed by the current employer, Employer B, gets approved. It included a requirement for a master’s degree in computer science or, in the alternative, a bachelor’s degree in that field followed by five years of progressive experience. Employer B files a petition for EB-2 immigrant visa classification with an INS Service Center. In return, the Service Center issues a request for evidence, not convinced that the worker has what it deems to be a bachelor’s degree. Ultimately, the petition is denied on those grounds. Can Employer B continue to get extensions for this H-1B worker? We think it can. Here’s how.
The Appeal of an Appeal
As amended in 2002, AC21 §106(b) states that extensions of H-1B status shall be granted in one-year increments “until such time as a final decision is made to deny the [labor certification] application” or in a case in which the labor certification application is granted, “to deny a petition” based on its approval. What is a “final decision”? Is it the decision of the Service Center or the INS Administrative Appeals Office (AAO)?
This question was asked of the INS General Counsel in 1991, and the answer, in so many words, was that it ain’t over till it’s over. The INS Western Region wanted to know what happens to an I-485 adjustment of status application filed in conjunction with an I-130 or I-140 immigrant visa petition when the petition is denied. Would the I-485 be considered pending if the petition denial was appealed, and would interim benefits such as employment authorization continue during the appeal process? In other words, the Service wanted to know when the petition denial was final: after the Service Center denial or after a decision on an appeal?
Paul Virtue was then Acting INS General Counsel. He noted that Service regulations specifically state that if a decision is appealable to the Board of Immigration Appeals, the decision is not final during the appeal process. Yet nowhere did the regulations state the same for decisions appealable to the AAO. Mr. Virtue’s short answer was: “It is our opinion that as long as a decision may be reversed on direct appeal or certification, the Service should not consider that decision final. This includes I-140 third- and sixth-preference petitions.”
Under a heading “INS Regulations Should Be Amended to State Explicitly That a Decision That is Appealable to the AAU Is Not Final Until the Right to Appeal Is Waived, or the Appeal or Certification Is Decided,” the General Counsel said that, “as long as a decision may be reversed on direct appeal or certification, the merits of the matter have not been finally determined and, therefore, the decision should not be acted upon as if it were final.”
That position is recognized elsewhere in INS regulations and procedures. For example, the standard language the INS uses in its denial notices states the following: “If you wish to file an appeal from this decision, you may do so. Your notice of appeal must be filed within 30 days from the date of this notice, 33 days if this notice was received by mail. If no appeal is filed within the time allowed, this decision is final.” This means that if an appeal is filed, the decision is not final. Moreover, adjustment applicants who file for employment authorization are entitled to renew their applications in one-year increments “including any period when an administrative appeal . . . is pending.”
With that in mind, let’s return to our hypothetical. One course of action for Employer B is to appeal the denial of its EB-2 immigrant visa petition to the AAO, which is currently taking two years to adjudicate EB-2 cases. While the appeal is pending, the employee should be eligible for extensions of H?1B status. If feasible, the employer should also immediately file a new labor certification application, changing the educational requirements. While living on the time bought by extending H-1B status during the appeal, perhaps two years’ worth of time, the new labor certification application can pend for 365 days, entitling the worker to more H-1B time that way. If the appeal is successful, more H-1B time is available during the pendency of the adjustment of status or immigrant visa application. If the appeal is unsuccessful, additional H?1B time is available under the new labor certification application or the immigrant visa petition filed in its wake.
How Long Can This Be Going On?
How many petitions and labor certification applications can you string together? What if, in our example, the H-1B worker left Employer B to hop over to Employer C? Could Employer C seek extensions of H-1B status beyond the six-year limit based on the filings of Employer A? Based on the filing of Employer B? We don’t know.
On the one hand, an argument can certainly be made that extensions are possible. The statute allows for extensions in one-year increments until a final decision is made to deny the labor certification application, or if granted, to deny the petition. The statute says nothing about a case in which the petition is granted. (In our hypothetical, Employer A’s immigrant visa petition was granted.) Can one continue to get additional years in H-1B status based on Employer A’s petition approval? Under the pre-amended §106, the INS left room for an affirmative answer. When the Immigration Services Division was asked whether a seventh year was available after the I-140 petition had been approved, it said, “INS agrees that Section 106 of AC21 allows for filing of a 7th year H-1 for someone who had filed a labor cert more than 365 days ago and has an approved I-140.”
Moreover, the newly amended AC21 §106(b)(3) specifically states that H-1B status may be extended in one-year increments until a final decision is made “to grant or deny the alien’s application for an immigrant visa or for adjustment of status to that of an alien lawfully admitted for permanent residence,” applications that are usually submitted after the petition is granted. The statute does not add that those applications must relate to a specific petition or to the employer now seeking the additional H-1B time.
Finally, the 2002 amendment to AC21 §106(a) is even more liberal than the statute as originally written. While before the amendment the statute permitted extensions beyond year six if the requisite time had elapsed between the filing of “a” labor certification application (followed by a petition), the newly enacted version permits extensions if “365 days or more have elapsed since the filing of . . . (1) [a]ny application for labor certification. …”
Unless and until the Service gives a full-fledged alien-based reading to §106, and states outright, as it did in the §245(i) context, that any earlier petition or application can serve as the basis for H-1B petition extensions, one should proceed with caution. It is our opinion that, at the least, the petitioner seeking the year-to-year extension of H-1B status beyond year six based on filings by a prior employer should be in some phase of the permanent residence case, actively pursuing that status for the worker.
Give Me an “H”
It’s elementary, but should still be said: AC21 §106 applies only to nonimmigrants who are in H-1B status. If you are representing a worker in L-1B status who will be applying for residency through the labor certification process, you may want to consider changing his status to H-1B. First off, he will benefit by the six-year limit for those in H-1B status, rather than the five-year limit for L-1Bs. Second, if the labor certification application remains pending at least 365 days, he will be eligible for additional years in H-1B status. If the nonimmigrant was not eligible for H-1B status when he first transferred to the United States because he lacked the requisite academic credentials, you may have already bought yourself some time. Embedded into his years in L-1B status may be the progressive professional experience that he lacked earlier, which may now allow for an experiential equivalent of a university education.
We Filed an Adjustment Application, So Why File a New H-1B Petition?
For those whose labor certification applications or immigrant visa petitions have been pending for more than 365 days, AC21 permits extensions of H-1B status beyond the normal six-year cap until a final decision is made to grant or deny the adjustment of status application. Why would an adjustment of status applicant bother with H-1B petition extensions when employment authorization and advance parole are readily available? There are several reasons, including the long wait for the issuance of an employment authorization card and an advance parole document, and the inconvenience of secondary inspection upon each entry to the United States with parole. But that’s not our focus. Our concern is the uncertainty of the interaction of the adjustment portability provision of AC21, the year-to-year extension of H-1B status provisions under that statute, and their relationship to the concurrent filing rule.
The concurrent filing rule allows for the simultaneous filing of an employment-based immigrant petition and an adjustment of status application. AC21 amended INA §204 to provide relief for certain employment-based applicants for adjustment of status whose applications were pending for at least 180 days. To allow for “job flexibility” for those applicants, Congress decided to permit the foreign national to change jobs or employers if the new job is in the “same or similar occupational classification” as the job forming the basis of the original petition. If it is, the underlying employment-based petition remains valid with respect to the new job.
One of the selling points for an adjustment applicant who changes jobs before his adjustment application is adjudicated is that, with an employment authorization card, he is eligible to engage in open market employment without the new employer filing an H-1B petition on his behalf. That may still be an advantage for a foreign national who changes employers after the underlying immigrant petition has been approved. But what about an H-1B nonimmigrant availing himself of adjustment portability when the immigrant visa petition was filed together with the adjustment application under the concurrent filing rule? Let’s assume that the I-140/I-485 have remained pending for at least 180 days. Should the new employer simply hire the foreign national and take advantage of his adjustment portability, or should it file an H-1B petition for him? We think the H-1B petition route is far safer. Here’s why:
First, newly amended INA §204(j) provides that a petition “shall remain valid” if the adjustment of status application filed on its heels has not been adjudicated within 180 days. When the statute was enacted, the concurrent filing rule had not yet been promulgated, and clearly the “shall remain valid” language referred to a petition that had already been approved. It is far from clear whether an immigrant visa petition not yet approved “shall remain valid” for adjustment portability purposes when concurrent filing is chosen.
Second, if adjustment portability is chosen, the Service has no relationship with the new employer, who is not a petitioner to the Service seeking any benefits. The only relationship the Service has is to the foreign national and to the employer that filed the immigrant petition on his behalf. Therefore, when the foreign national changes employers, the Service has no legal relationship to the alien’s new employer. So, what if the original employer withdraws the petition before it’s adjudicated? What if the Service issues a request for evidence on the underlying petition? The only entity with standing to respond to it is the original employer, which clearly has no interest in doing so. Why, in fact, would that employer even bother to let its former worker know that the request was issued? And what if the petition is denied? Who has standing to appeal? Not the new employer, for sure. That right may be exercised by the petitioning former employer, who, again, has no interest in doing so. The foreign national has standing to sue, however.
If the foreign national maintains his H-1B status, additional benefits accrue if the petition is ultimately denied. The portability provisions under AC21’s §105 can still be available to him. That section permits a change to a new employer upon the filing of a new H-1B petition, but among its requirements is one that the alien be an H-1B “nonimmigrant.” An alien whose H-1B status has lapsed is no longer a nonimmigrant, and becomes instead an applicant for adjustment of status.
Given these uncertainties, we suggest that unless the original petition is approved, the foreign national may unwittingly find himself out of status. The safest strategy to follow—although one that comes with expense and bother—is for the new employer to file an H-1B petition for the porting employee. This is the case whether or not the H-1B worker is facing the end of his six years in H-1B status.
Conclusion
Amended AC21 §106 is an area fraught with uncertainty. The advice offered here may not work in every case. Moreover, forthcoming INS and Department of Labor (DOL) regulations may reject or moot some of our suggestions and analysis. For example, the DOL has proposed overhauling and streamlining its labor certification system. If that happens, labor certification applications may take less than a year to be decided, thus obviating the need to worry about many of the issues raised in this article. Given the nature of the bureaucratic beast known as the DOL, however, don’t bet the ranch on that happening.
Despite these caveats, some of the suggestions in this article may be the last lifeline for H-1B workers at the end of their six-year rope. Required by ethics codes to be their zealous advocates, we offer our ideas and strategies, and wish you safe sailing in uncharted waters.
On November 2, 2002, President Bush signed into law the 21st Century Department of Justice Appropriations Authorization Act. Section 11030A of that law amended §106(a) of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), relaxing even further some of the provisions of that statute, which itself had been enacted as an ameliorative piece of legislation. Before its amendment, §106(a) of AC21 permitted extensions beyond the normal six-year cap on H-1B status in certain circumstances. One was the passage of 365 days after the filing of a labor certification application on the alien’s behalf, but only if the application was followed by the filing of an employment-based immigrant visa petition while the alien was still in H-1B status. In that case, extensions of status could be granted in one-year increments “until such time as a final decision is made on the alien’s lawful permanent residence.”
While somewhat helpful, AC21 did not go far enough to remedy the problems created by lengthy adjudications. In particular, it did not address the growing delays in adjudications--years long in many instances--at the various state and federal departments of labor. Without approval of the labor certification application, in most cases a petition could not be filed under Immigration and Nationality Act (INA) §203(b), and aliens coming to the end of their sixth year in H-1B status were ineligible for extensions.
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