unsolved mysteries - the h files sorting out h-1b myths and facts nafsa region i conference -...

Unsolved Mysteries - the H Files

Sorting out H-1B Myths and Facts

Unsolved Mysteries - the H Files

Sorting out H-1B Myths and Facts

NAFSA Region I Conference - October 20, 2006

Richard Bruce, Western Washington University

Tamara Echter, University of Washington

Steve Springer, University of Texas at Austin

NAFSA Region I Conference - October 20, 2006

Richard Bruce, Western Washington University

Tamara Echter, University of Washington

Steve Springer, University of Texas at Austin

Fact or MythFact or Myth

Non-profits are cap-exempt

Once you’re an H-1B, you can move to new employment without worrying about the cap

We shouldn’t expect a “cap gap” provision again in the near future

Non-profits are cap-exempt

Once you’re an H-1B, you can move to new employment without worrying about the cap

We shouldn’t expect a “cap gap” provision again in the near future

H-1B Cap IssuesH-1B Cap Issues Are all non-profits exempt?

NO. Exempt from numerical cap are those employed at higher ed. institution or certain “related” or “affiliated” non-profit entities, or non-profit research organizations, or (federal) government research organizations Note the distinction between “at and “by” (INA 214(g)(5)) Recent AAO decision exempted school system employees engaged in alternative

certification program offered in collaboration with a university

Is the petition for an employee porting from higher ed. to industry subject? Yes, unless FN has previously been counted against the cap (worked in

industry as H-1B) or will remain concurrently employed with cap-exempt employer (remember, law says count when “alien ceases to be employed” by a cap exempt employer (INA 214(g)(6)

Can we expect to see DHS issue a “cap gap” notice again in the future to ameliorate the gap? No. In short, it’s probably a thing of the past

Are all non-profits exempt? NO. Exempt from numerical cap are those employed at higher ed.

institution or certain “related” or “affiliated” non-profit entities, or non-profit research organizations, or (federal) government research organizations Note the distinction between “at and “by” (INA 214(g)(5)) Recent AAO decision exempted school system employees engaged in alternative

certification program offered in collaboration with a university

Is the petition for an employee porting from higher ed. to industry subject? Yes, unless FN has previously been counted against the cap (worked in

industry as H-1B) or will remain concurrently employed with cap-exempt employer (remember, law says count when “alien ceases to be employed” by a cap exempt employer (INA 214(g)(6)

Can we expect to see DHS issue a “cap gap” notice again in the future to ameliorate the gap? No. In short, it’s probably a thing of the past


Hs have a 10-day grace period

Fs and Js in their grace period are no longer eligible for change of status

Hs have a 10-day grace period

Fs and Js in their grace period are no longer eligible for change of status

Grace Period IssuesGrace Period Issues Is there a 10-day “grace period” for Hs?

YES/NO. Regulations state that H-1B/H-4 shall be admitted for a period including 10 days before and after petition validity, but if this “grace period” is not granted at the POE, the H-1B/H-4 doesn’t have it (officers read “may”)

Same regulation also states that “the beneficiary may not work except during the validity period of the petition (8 CFR 214.2(h)(13)(I) (A)

Cronin suggested the possibility of a 60-day grace period in a 2001 memo, adding further confusion

Can an H-1B change of status petition be filed for someone in his/her “grace period” YES. Petition is “timely filed” and beneficiary considered “in

status” during such grace period

Apparently several officials have recommended regulatory changes that would expressly prohibit COS in grace period, and others have recommended date-specific (rather than “D/S”) admission periods for Fs and Js, but NOT YET

Is there a 10-day “grace period” for Hs? YES/NO. Regulations state that H-1B/H-4 shall be admitted for a

period including 10 days before and after petition validity, but if this “grace period” is not granted at the POE, the H-1B/H-4 doesn’t have it (officers read “may”)

Same regulation also states that “the beneficiary may not work except during the validity period of the petition (8 CFR 214.2(h)(13)(I) (A)

Cronin suggested the possibility of a 60-day grace period in a 2001 memo, adding further confusion

Can an H-1B change of status petition be filed for someone in his/her “grace period” YES. Petition is “timely filed” and beneficiary considered “in

status” during such grace period

Apparently several officials have recommended regulatory changes that would expressly prohibit COS in grace period, and others have recommended date-specific (rather than “D/S”) admission periods for Fs and Js, but NOT YET


If the H-1B employee is in the U.S. and doesn’t start working on the start date of the approval notice, she/he is in violation of status

If the H-1B employee is in the U.S. and doesn’t start working on the start date of the approval notice, she/he is in violation of status

Start and Termination Issues

Start and Termination Issues

What happens if the employee can’t start on the start date of the petition approval? If initial petition, employer must pay required wage within 30 days of

admission to U.S. If employee is in the U.S. (change of status/employer petition), employer

must pay attested age within 60 days of employee’s eligibility to work for employer This is the “anti-benching” section of the law and explicitly does not prohibit

failure to pay wage due to employee’s request, etc. or payment of “compressed wage” over period of less than 12 months (INA 212(n)(C)(vii) and see 20 CFR 655.731(b)(5)(I))

What to do upon early termination of H-1B employee? “Immediately notify the Service” by sending “to the director who approved

the petition . . . a letter explaining the changes” 8CFR214.2(h)(11)(i)(A)

“Employer is liable for reasonable costs of return transportation” to “last place of foreign residence,” but not “if beneficiary voluntarily terminates” (8 CFR 214.2(h)(4)(iii)(A)) -- enforcement is private, contractual matter

Good idea to withdraw LCA (20 CFR 655.750(b)(2) provides address) What about by Service action, like AOS? probably no need to notify

What happens if the employee can’t start on the start date of the petition approval? If initial petition, employer must pay required wage within 30 days of

admission to U.S. If employee is in the U.S. (change of status/employer petition), employer

must pay attested age within 60 days of employee’s eligibility to work for employer This is the “anti-benching” section of the law and explicitly does not prohibit

failure to pay wage due to employee’s request, etc. or payment of “compressed wage” over period of less than 12 months (INA 212(n)(C)(vii) and see 20 CFR 655.731(b)(5)(I))

What to do upon early termination of H-1B employee? “Immediately notify the Service” by sending “to the director who approved

the petition . . . a letter explaining the changes” 8CFR214.2(h)(11)(i)(A)

“Employer is liable for reasonable costs of return transportation” to “last place of foreign residence,” but not “if beneficiary voluntarily terminates” (8 CFR 214.2(h)(4)(iii)(A)) -- enforcement is private, contractual matter

Good idea to withdraw LCA (20 CFR 655.750(b)(2) provides address) What about by Service action, like AOS? probably no need to notify


When I file an extension petition, I can’t really know if the petition was timely filed if I have only a courier service’s proof of delivery

When I file an extension petition, I can’t really know if the petition was timely filed if I have only a courier service’s proof of delivery

Filing and Timing Issues

Filing and Timing Issues

What to do if we forgot to file timely extension? USCIS discretion to grant late EOS/COS under extraordinary circumstances

beyond control, etc.” 8 CFR 248.1(b) gives LOW RISK PLAN: FN leaves U.S. and re-enters after petition approved MEDIUM RISK PLAN: FN goes off payroll while petitions is pending and employer

utilizes premium processing, FN plans to travel if EOS denied HIGH RISK PLAN: FN stays on payroll or goes off payroll and employer hopes

for best, but if denial then FN and employer have unauthorized employment problems and FN may have accrued enough UP to be barred

What’s evidence of “timely filing” for EOS and COE petitions? RECEIPT NOTICE. “An application or petition received in a Service

office shall be stamped to show the time and date of actual receipt and . . . shall be regarded as properly filed when so stamped . . .” 8 CFR 103.2(a)(7)(i)

COURIER RECEIPT? USCIS returns petitions for many reasons, including petitioner mistakes (incorrect fees, old checks/forms, etc.), their mistake, and petition not received until “stamped,” which we can take to mean receipt issued

May I request a gap in status? NO

May I file a COS petition for someone with a pending COS/EOS application and expired status? NO--bridge application

What to do if we forgot to file timely extension? USCIS discretion to grant late EOS/COS under extraordinary circumstances

beyond control, etc.” 8 CFR 248.1(b) gives LOW RISK PLAN: FN leaves U.S. and re-enters after petition approved MEDIUM RISK PLAN: FN goes off payroll while petitions is pending and employer

utilizes premium processing, FN plans to travel if EOS denied HIGH RISK PLAN: FN stays on payroll or goes off payroll and employer hopes

for best, but if denial then FN and employer have unauthorized employment problems and FN may have accrued enough UP to be barred

What’s evidence of “timely filing” for EOS and COE petitions? RECEIPT NOTICE. “An application or petition received in a Service

office shall be stamped to show the time and date of actual receipt and . . . shall be regarded as properly filed when so stamped . . .” 8 CFR 103.2(a)(7)(i)

COURIER RECEIPT? USCIS returns petitions for many reasons, including petitioner mistakes (incorrect fees, old checks/forms, etc.), their mistake, and petition not received until “stamped,” which we can take to mean receipt issued

May I request a gap in status? NO

May I file a COS petition for someone with a pending COS/EOS application and expired status? NO--bridge application


There’s regulation or clear guidance on what kinds of changes in employment require the employer to file an amended petition

An increase in salary does not required an amended petition unless it’s over $8000.00

Any time the employee takes a long leave, we run the risk of violating the “no-benching” provisions

There’s regulation or clear guidance on what kinds of changes in employment require the employer to file an amended petition

An increase in salary does not required an amended petition unless it’s over $8000.00

Any time the employee takes a long leave, we run the risk of violating the “no-benching” provisions

Changes in EmploymentChanges in Employment

What kinds of changes in employment require the filing of an amended petition?

What constitutes a “material change”?

Must the amended petition be filed before the change occurs?

Are temporary changes handled any differently?

Is it enough to file an new LCA for a change of location?

May I indicate multiple locations and/or file multiple LCAs in advance/

Related topic: what does/does not constitute “benching”

Are there special rules for employers who are restructured, and entities who take over other entities?

What kinds of changes in employment require the filing of an amended petition?

What constitutes a “material change”?

Must the amended petition be filed before the change occurs?

Are temporary changes handled any differently?

Is it enough to file an new LCA for a change of location?

May I indicate multiple locations and/or file multiple LCAs in advance/

Related topic: what does/does not constitute “benching”

Are there special rules for employers who are restructured, and entities who take over other entities?

Guidance (remember hierarchy)

“The petitioner shall file an amended or new petition, with fee, with the Service Center where the original petition was filed to reflect any material changes in the terms and conditions of employment or training or the alien's eligibility as specified in the original approved petition.” 8 CFR 214.2(h)(2)(i)(E)

Short-term placement: H-1B employee may be sent temporarily to new worksite not covered by LCA for up to 30 days each year, up to 60 days each year if employee spends substantial time at permanent worksite (maintains office there and residence near) 20 CFR 655.735(c)

Series of memos and letters• Hogan Memo CO 214h-C (10/22/92) [69 IR1448-49, 11/9/92] • LaFleur Letter HQ 214h-C (10/12/95) [72 IR 1599-1601, 11/20/95]

• LaFleur Letter HQ 214h-C (11/29/95)• Aleinikoff Memo HQ70/6.2.8-P (8/22/96) [73 IR 1231-32, 9/16/96]

• Russell Letter HQ 70/6.2.8 (3/12/97) [74 IR 950, 6/9/97]• Simmons Letter HQ 70/6.2.8 (1112/98) [75 IR 1750-51, 1221/98]• Hernandez Letter HQ 70/6/2/8 (2/4/00) [77 IR 590-91, 5/1/00]• Hernandez Letter HQ 70/6.2.8 (2/2/00) [77 IR 252, 2/28/00]

• Additional law, regs., guidance on successor in interest• Additional guidance on dormant petitions

Guidance (remember hierarchy)

“The petitioner shall file an amended or new petition, with fee, with the Service Center where the original petition was filed to reflect any material changes in the terms and conditions of employment or training or the alien's eligibility as specified in the original approved petition.” 8 CFR 214.2(h)(2)(i)(E)

Short-term placement: H-1B employee may be sent temporarily to new worksite not covered by LCA for up to 30 days each year, up to 60 days each year if employee spends substantial time at permanent worksite (maintains office there and residence near) 20 CFR 655.735(c)

Series of memos and letters• Hogan Memo CO 214h-C (10/22/92) [69 IR1448-49, 11/9/92] • LaFleur Letter HQ 214h-C (10/12/95) [72 IR 1599-1601, 11/20/95]

• LaFleur Letter HQ 214h-C (11/29/95)• Aleinikoff Memo HQ70/6.2.8-P (8/22/96) [73 IR 1231-32, 9/16/96]

• Russell Letter HQ 70/6.2.8 (3/12/97) [74 IR 950, 6/9/97]• Simmons Letter HQ 70/6.2.8 (1112/98) [75 IR 1750-51, 1221/98]• Hernandez Letter HQ 70/6/2/8 (2/4/00) [77 IR 590-91, 5/1/00]• Hernandez Letter HQ 70/6.2.8 (2/2/00) [77 IR 252, 2/28/00]

• Additional law, regs., guidance on successor in interest• Additional guidance on dormant petitions

Summary of guidance New or amended petition is required when:

New place of employment not covered by LCA filed

Change of duties from one specialty occupation to another

Material change in terms and conditions of employment

Any time a new LCA must be filed pursuant to DOL regulations

• Some think filing new LCA is enough to cover move -- probably not based on reg. and guidance (agency correspondence confusing, indicates “file a new LCA” and probably presumes we know that means an amended petition, too

New or amended petition NOT required when

Employer changes name, EIN, or ownership

Promotion to higher position within same occupation, if same academic training is used (LaFleur example: $27,000 to $35,000 and adding supervisory duties not material ; Divine indicates update to DOL files necessary)

Leave under Family Medical Leave Act

If new location was covered in initial petition/LCA

Short term placements pursuant to 20 CFR 655.737(c)

Summary of guidance New or amended petition is required when:

New place of employment not covered by LCA filed

Change of duties from one specialty occupation to another

Material change in terms and conditions of employment

Any time a new LCA must be filed pursuant to DOL regulations

• Some think filing new LCA is enough to cover move -- probably not based on reg. and guidance (agency correspondence confusing, indicates “file a new LCA” and probably presumes we know that means an amended petition, too

New or amended petition NOT required when

Employer changes name, EIN, or ownership

Promotion to higher position within same occupation, if same academic training is used (LaFleur example: $27,000 to $35,000 and adding supervisory duties not material ; Divine indicates update to DOL files necessary)

Leave under Family Medical Leave Act

If new location was covered in initial petition/LCA

Short term placements pursuant to 20 CFR 655.737(c)

Timing Issues All indications are that the amended petition can be

filed after the fact with no penalty

•“regulation does not require that the alien wait for the approval of the amended petition. While the Service would prefer the alien remain at the first location until such time as the amended petition is approved, it is recognized, from a business perspective, that this may not be a reasonable position in all situations. Therefore, it is the opinion of this office that the alien may transfer to the new location prior to the approval of the amended petition.” LaFleur, 11/29/95

•“there is nothing in the current regulation which specifies when an amended petition should be filed. Therefore a petitioner would not be penalized for filing an amended petition after the occurrence of the material change” (a promotion). LaFleur, 10/12/95

All indications are that portability would apply to any new employment, too, so filing petition and waiting for receipt notice before porting employee to new position may reduce risk

Bottom line: If you have trouble deciding whether a change is “material,” file an amended petition

Timing Issues All indications are that the amended petition can be

filed after the fact with no penalty

•“regulation does not require that the alien wait for the approval of the amended petition. While the Service would prefer the alien remain at the first location until such time as the amended petition is approved, it is recognized, from a business perspective, that this may not be a reasonable position in all situations. Therefore, it is the opinion of this office that the alien may transfer to the new location prior to the approval of the amended petition.” LaFleur, 11/29/95

•“there is nothing in the current regulation which specifies when an amended petition should be filed. Therefore a petitioner would not be penalized for filing an amended petition after the occurrence of the material change” (a promotion). LaFleur, 10/12/95

All indications are that portability would apply to any new employment, too, so filing petition and waiting for receipt notice before porting employee to new position may reduce risk

Bottom line: If you have trouble deciding whether a change is “material,” file an amended petition

Related Issue: “non-productive status” and “benching”

Law: “It is a failure to meet” the requirement that the employer pay the higher of the actual or prevailing wage if the employer “places an H-1B nonimmigrant designated as a full-time employee on the petition . . . after the nonimmigrant has entered into employment with the employer, in nonproductive status due to a decision by the employer (based on factors such as lack of work) . . .”

• This clause does not apply to a failure to pay wages to an H-1B nonimmigrant for nonproductive time due to non- work-related factors, such as the voluntary request of the nonimmigrant for an absence or circumstances rendering the nonimmigrant unable to work. (IV)

• This clause shall not be construed as prohibiting an employer that is a school or other educational institution from applying to an H-1B nonimmigrant an established salary practice of the employer, under which the employer pays to H-1B nonimmigrants and United States workers in the same occupational classification an annual salary in disbursements over fewer than 12 months . . .”

Regulation: “if the H-1B nonimmigrant is in a nonproductive status for reasons such as training, lack of license, lack of assigned work or any other reason, the employer will be required to pay” the required wage. (5)(i)

• but “employer shall not be obligated to pay the required wage” if “nonproductive status due to conditions unrelated to employment which render the nonimmigrant unable to work--e.g., maternity leave, automobile accident which temporarily incapacitates the nonimmigrant, caring for an ill relative--”or leave “under other statutes such as the FMLA or ADA” (ii)

So, brief employee-requested leave o.k., lay-off not o.k., and in between is mystery

Proceed cautiously, document the file with proof that employee requested leave

Related Issue: “non-productive status” and “benching”

Law: “It is a failure to meet” the requirement that the employer pay the higher of the actual or prevailing wage if the employer “places an H-1B nonimmigrant designated as a full-time employee on the petition . . . after the nonimmigrant has entered into employment with the employer, in nonproductive status due to a decision by the employer (based on factors such as lack of work) . . .”

• This clause does not apply to a failure to pay wages to an H-1B nonimmigrant for nonproductive time due to non- work-related factors, such as the voluntary request of the nonimmigrant for an absence or circumstances rendering the nonimmigrant unable to work. (IV)

• This clause shall not be construed as prohibiting an employer that is a school or other educational institution from applying to an H-1B nonimmigrant an established salary practice of the employer, under which the employer pays to H-1B nonimmigrants and United States workers in the same occupational classification an annual salary in disbursements over fewer than 12 months . . .”

Regulation: “if the H-1B nonimmigrant is in a nonproductive status for reasons such as training, lack of license, lack of assigned work or any other reason, the employer will be required to pay” the required wage. (5)(i)

• but “employer shall not be obligated to pay the required wage” if “nonproductive status due to conditions unrelated to employment which render the nonimmigrant unable to work--e.g., maternity leave, automobile accident which temporarily incapacitates the nonimmigrant, caring for an ill relative--”or leave “under other statutes such as the FMLA or ADA” (ii)

So, brief employee-requested leave o.k., lay-off not o.k., and in between is mystery

Proceed cautiously, document the file with proof that employee requested leave


When an H-1B petition is pending, the employee can’t leave the U.S. or it will be denied

When an H-1B petition is pending, the employee can’t leave the U.S. or it will be denied

Travel IssuesTravel Issues Does travel while a change of status petition is pending cause abandonment?

Does travel while an extension of status petition is pending cause abandonment? How to get back into the U.S.?

Does travel while a change of employer petition is pending cause abandonment? How to get a visa and admission to U.S.?

What will be expiration date noted on I-94?

If pursuing permanent residence, does the H-1B need advance parole to re-enter?

Does travel while a change of status petition is pending cause abandonment?

Does travel while an extension of status petition is pending cause abandonment? How to get back into the U.S.?

Does travel while a change of employer petition is pending cause abandonment? How to get a visa and admission to U.S.?

What will be expiration date noted on I-94?


Change of status petition

Requests: (1) approve a period of H-1B employment and (2) grant FN a change of status to H-1B

“An alien on whose behalf a change of nonimmigrant status has been filed and who travels outside the United States before the request is adjudicated is considered to have abandoned the request” and such an application should be denied (06/18/01 Memo from Thomas Cook (HQ 70/6.2.9))

• So, change of status request will be denied

• If otherwise approvable, period of H-1B employment will be approved (approval will indicate consular notification)

• FN will have to travel again to obtain status (obtain visa if necessary)

There was a time when INS records were not as accurate and it wasn’t apparent to them that a COS applicant/beneficiary had left the U.S., but “now they know”

Change of status petition

Requests: (1) approve a period of H-1B employment and (2) grant FN a change of status to H-1B

“An alien on whose behalf a change of nonimmigrant status has been filed and who travels outside the United States before the request is adjudicated is considered to have abandoned the request” and such an application should be denied (06/18/01 Memo from Thomas Cook (HQ 70/6.2.9))

• So, change of status request will be denied

• If otherwise approvable, period of H-1B employment will be approved (approval will indicate consular notification)

• FN will have to travel again to obtain status (obtain visa if necessary)

There was a time when INS records were not as accurate and it wasn’t apparent to them that a COS applicant/beneficiary had left the U.S., but “now they know”

Extension of status petition

Travel by beneficiary has no effect, does not cause abandonment

“Current Service policy does not preclude an alien from traveling outside of the United States while a request for an extension . . . is pending” (06/18/01 Memo from Thomas Cook (HQ 70/6.2.9))

• So, extension of status request will be approved

• BUT, if prior petition approval expires while FN is abroad, what will she/he use to apply for visa and admission?

• Will have to wait for approval notice to arrive, so premium processing may be useful

Extension of status petition


“Current Service policy does not preclude an alien from traveling outside of the United States while a request for an extension . . . is pending” (06/18/01 Memo from Thomas Cook (HQ 70/6.2.9))

• So, extension of status request will be approved

• BUT, if prior petition approval expires while FN is abroad, what will she/he use to apply for visa and admission?

• Will have to wait for approval notice to arrive, so premium processing may be useful

Change of employer petition


• Applicant for admission at POE who is beneficiary of pending change of employer petition:

• must be otherwise admissible

• possess valid passport and visa (visa for prior employer o.k.)

• have evidence of previous H-1B status (prior approval notice) and

• proof of timely-filed change of employer petition (receipt notice)

• Applicant is then admissible to the expiration date of the PREVIOUS petition +10 days

• DOS has indicated that it will issue a visa if prior visa has expired

• See DOS cables 11/8/2000, 3/9/2001, 6/11/2001, Pearson memo 1/29/01

Change of employer petition


• Applicant for admission at POE who is beneficiary of pending change of employer petition:

• must be otherwise admissible

• possess valid passport and visa (visa for prior employer o.k.)

• have evidence of previous H-1B status (prior approval notice) and

• proof of timely-filed change of employer petition (receipt notice)

• Applicant is then admissible to the expiration date of the PREVIOUS petition +10 days

• DOS has indicated that it will issue a visa if prior visa has expired

• See DOS cables 11/8/2000, 3/9/2001, 6/11/2001, Pearson memo 1/29/01


NO. “travel . . . by an applicant for adjustment of status . . . who is in lawful H-1 or L-1 status shall not be deemed an abandonment of the application if, upon returning to this country, the alien remains eligible for H or L status, is coming to resume employment with the same employer . . . and is in possession of a valid H or L visa (if required) and the original I-797 receipt notice for the application for adjustment

of status” 8 CFR 245.2(a)(4)(ii)(C)

What about someone who obtained EAD (as adjustment of status applicant)?• guidance from USCIS leaves more questions unanswered than it answers (Cronin

Memo HQADJ 70/ 2.8.6, 2.8.12, 10.18)

•“H-1 . . . will violate his/her status if s/he uses the EAD to leave the employer listed on the . . . petition and engage in employment for a separate employer”

• use of “leave” raises question of whether one who remains employed by the employer who obtained his/her H-1B status but uses the card to work for an additional employer is in violation

• does not address what happens when an H-1B uses the EAD, abandoning H-1B status, leaves the U.S. and returns using a valid H-1B visa and approval notice (re-gain H-1B?)

• safe approach: assume that any use of an EAD results in abandonment of H status and that the person who uses the EAD must then use advance parole to re-enter the U.S. after a trip abroad and not consider himself/herself an H-1B

What’s more advantageous to the employer UT-A handout available


NO. “travel . . . by an applicant for adjustment of status . . . who is in lawful H-1 or L-1 status shall not be deemed an abandonment of the application if, upon returning to this country, the alien remains eligible for H or L status, is coming to resume employment with the same employer . . . and is in possession of a valid H or L visa (if required) and the original I-797 receipt notice for the application for adjustment

of status” 8 CFR 245.2(a)(4)(ii)(C)

What about someone who obtained EAD (as adjustment of status applicant)?• guidance from USCIS leaves more questions unanswered than it answers (Cronin

Memo HQADJ 70/ 2.8.6, 2.8.12, 10.18)

•“H-1 . . . will violate his/her status if s/he uses the EAD to leave the employer listed on the . . . petition and engage in employment for a separate employer”

• use of “leave” raises question of whether one who remains employed by the employer who obtained his/her H-1B status but uses the card to work for an additional employer is in violation

• does not address what happens when an H-1B uses the EAD, abandoning H-1B status, leaves the U.S. and returns using a valid H-1B visa and approval notice (re-gain H-1B?)

• safe approach: assume that any use of an EAD results in abandonment of H status and that the person who uses the EAD must then use advance parole to re-enter the U.S. after a trip abroad and not consider himself/herself an H-1B

What’s more advantageous to the employer UT-A handout available


My job would qualify as a specialty occupation

My job would qualify as a specialty occupation

Specialty Occupation Issues

Specialty Occupation Issues

“specialty occupation . . . requires (A) the theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor’s or higher in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States” INA 101(a)(15)(H)(i)(B)

Criteria stated in the H-1B regulations at 8 CFR 214.2(h)(4)(iii)(A)

• A baccalaureate degree/equivalent is minimum requirement for entry into the position• degree requirement is common throughout industry in parallel positions among similar

employers

• petitioning employer would not consider less than the degree or its equivalent and • duties to be undertaken are so specialized and complex that knowledge required to

perform the duties are usually associated with attainment of a degree

Long list of AAO and court decisions establishing certain occupations as “specialty occupations”

Problem occupations in higher ed.: coach, international student/scholar advisor, advisor, residence life coordinator, any position title including “specialist” --why?

Prove this in advance rather than try to change an officer’s mind in response to RFE or NOID (they’re looking for reasons to approve, except a few NSC miscreants)

“specialty occupation . . . requires (A) the theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor’s or higher in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States” INA 101(a)(15)(H)(i)(B)

Criteria stated in the H-1B regulations at 8 CFR 214.2(h)(4)(iii)(A)

• A baccalaureate degree/equivalent is minimum requirement for entry into the position• degree requirement is common throughout industry in parallel positions among similar

employers

• petitioning employer would not consider less than the degree or its equivalent and • duties to be undertaken are so specialized and complex that knowledge required to

perform the duties are usually associated with attainment of a degree

Long list of AAO and court decisions establishing certain occupations as “specialty occupations”

Problem occupations in higher ed.: coach, international student/scholar advisor, advisor, residence life coordinator, any position title including “specialist” --why?

Prove this in advance rather than try to change an officer’s mind in response to RFE or NOID (they’re looking for reasons to approve, except a few NSC miscreants)

Prevailing Wage IssuesPrevailing Wage Issues Survey data readily available for faculty-level

positions, but universities must often turn to the SWA for a prevailing wage determination for postdoctoral positions.

OES does not have a "postdoc" occupational code. Postdoctoral trainees lumped together with professionals in the same field (i.e., postdocs in Engineering receiving prevailing wages of practicing Engineers)

In early 2006 some of the occupational codes that had more favorable wage determinations commonly used for postdocs were eliminated.

Institutions may suggest that the SWA use for postdoctoral positions the "all other" occupational codes when this may result in a lower prevailing wage (for example, "Engineers, all other" or "Physical Scientists, all other")

Are our institutions submitting the survey data?

Survey data readily available for faculty-level positions, but universities must often turn to the SWA for a prevailing wage determination for postdoctoral positions.

OES does not have a "postdoc" occupational code. Postdoctoral trainees lumped together with professionals in the same field (i.e., postdocs in Engineering receiving prevailing wages of practicing Engineers)

In early 2006 some of the occupational codes that had more favorable wage determinations commonly used for postdocs were eliminated.

Institutions may suggest that the SWA use for postdoctoral positions the "all other" occupational codes when this may result in a lower prevailing wage (for example, "Engineers, all other" or "Physical Scientists, all other")

Are our institutions submitting the survey data?

“Last Action” Issues“Last Action” Issues Sometimes it is difficult to ascertain the “last action” in a

sequence of immigration events, but may be necessary to determine someone’s status

Efren Hernandez, Chief of Office of Adjudications, has tried to clarify that the “taking effect” of a COS--rather than the approval of that COS--may be last action (08/18/2004 letter to Susan Cohen)

COMMON SCENARIO: H-1B petition, including COS from F-1 to H-1B, approved 08/01/06 and effective 01/01/07. F-1 student

travels 10/01/06 and re-enters U.S. in F-1 status.

• Is re-entry as F-1 “last action” in the sequence?

• NO, the “taking effect” of the COS on 01/01/07 is the “last action”

• On 01/01/07, F-1 becomes H-1B and has new I-94 on H-1B approval notice

Other “last action” scenarios?

Sometimes it is difficult to ascertain the “last action” in a sequence of immigration events, but may be necessary to determine someone’s status

Efren Hernandez, Chief of Office of Adjudications, has tried to clarify that the “taking effect” of a COS--rather than the approval of that COS--may be last action (08/18/2004 letter to Susan Cohen)

COMMON SCENARIO: H-1B petition, including COS from F-1 to H-1B, approved 08/01/06 and effective 01/01/07. F-1 student

travels 10/01/06 and re-enters U.S. in F-1 status.

• Is re-entry as F-1 “last action” in the sequence?

• NO, the “taking effect” of the COS on 01/01/07 is the “last action”

• On 01/01/07, F-1 becomes H-1B and has new I-94 on H-1B approval notice

Other “last action” scenarios?


If the employee is not in status (e.g. has quit the prior job), he/she does not qualify for H-1B portability

If the employee is not in status (e.g. has quit the prior job), he/she does not qualify for H-1B portability

Portability IssuesPortability Issues Quick Review -- H-1B portability

What is it: provides employer the ability to employ eligible FN once viable H-1B petition is filed, and the portability ends at adjudication of the petition

• So, in a sense, it temporarily “moves” the H-1B work authorization to the new employment for the time it takes USCIS to process the new petition

The law (AC21 sec. 105) : “A nonimmigrant alien . . . who was previously issued” an H-1B “visa or otherwise provided” H-1B status “is authorized to accept new employment upon the filing by the prospective employer of a new petition on behalf of such nonimmigrant . . .” and

(1) the alien has been lawfully admitted into the U.S.

(B) the employer has filed a nonfrivolous petition before the date of

expiration of the period of stay authorized by the Attorney General;

and

(C) the alien has not been employed without authorization

No regulations, some AAO decisions, several memos

Quick Review -- H-1B portability

What is it: provides employer the ability to employ eligible FN once viable H-1B petition is filed, and the portability ends at adjudication of the petition

• So, in a sense, it temporarily “moves” the H-1B work authorization to the new employment for the time it takes USCIS to process the new petition

The law (AC21 sec. 105) : “A nonimmigrant alien . . . who was previously issued” an H-1B “visa or otherwise provided” H-1B status “is authorized to accept new employment upon the filing by the prospective employer of a new petition on behalf of such nonimmigrant . . .” and

(1) the alien has been lawfully admitted into the U.S.

(B) the employer has filed a nonfrivolous petition before the date of

expiration of the period of stay authorized by the Attorney General;

and

(C) the alien has not been employed without authorization

No regulations, some AAO decisions, several memos

Does the FN have to be maintaining status to port?

In short, NO, but what happens at adjudication if FN was out of status?

• Law: FN eligible if previously issued H-1B visa or accorded H-1B status, and petition filed before expiration of period of stay authorized by Attorney General

• Most think that Congress used the language associated with unlawful presence (“period of authorized stay”) rather than “maintaining status” intentionally to enhance portability

• Conflicting indications from INS/USCIS, but 5/12/05 Yates memo: the law “does not require that the alien currently be in status”

• USCIS has discretion to approve a late petition, regardless of AC21, but you must know whether you’re relying on that or AC21 (you wouldn’t put FN on payroll while petition is pending if it’s a late petition)

If you check “change of employer” in 2.2 and “extend the stay . . .” in 2.3 of I-129, has the out of status FN been granted a discretionary extension if petition is approved as requested? (this remains a mystery)

If you port FN who is out of status, ask for consular notification and plan to have him/her travel to obtain the status after petition approval

Does the FN have to be maintaining status to port?

In short, NO, but what happens at adjudication if FN was out of status?

• Law: FN eligible if previously issued H-1B visa or accorded H-1B status, and petition filed before expiration of period of stay authorized by Attorney General

• Most think that Congress used the language associated with unlawful presence (“period of authorized stay”) rather than “maintaining status” intentionally to enhance portability

• Conflicting indications from INS/USCIS, but 5/12/05 Yates memo: the law “does not require that the alien currently be in status”

• USCIS has discretion to approve a late petition, regardless of AC21, but you must know whether you’re relying on that or AC21 (you wouldn’t put FN on payroll while petition is pending if it’s a late petition)

If you check “change of employer” in 2.2 and “extend the stay . . .” in 2.3 of I-129, has the out of status FN been granted a discretionary extension if petition is approved as requested? (this remains a mystery)

If you port FN who is out of status, ask for consular notification and plan to have him/her travel to obtain the status after petition approval

Is it possible to port to concurrent employment?

In short, YES

Law: FN “is authorized to accept new employment upon the filing by the prospective employer of a new petition on behalf of such nonimmigrant”

Plain meaning of “new petition” seems to include a petition for concurrent employment

Is it possible or even useful to port to new employment with the same employer?

Conflicting information on whether amended petition must be filed BEFORE material change in employment occurs • regulations state that petition must be filed to “reflect” material change, indicating that it is done after the fact)

• see also 11/95 LaFleur letters (no penalty for filing after change), but also CDI Info. Servs., Inc. v. Reno

If filing in advance is required, porting to the new employment could be useful

AC21 seems to envision such employment as “new employment” and the employer a “prospective employer” so that this situation allows for portability, but this isn’t certain

Is it possible to port to concurrent employment?

In short, YES

Law: FN “is authorized to accept new employment upon the filing by the prospective employer of a new petition on behalf of such nonimmigrant”

Plain meaning of “new petition” seems to include a petition for concurrent employment

Is it possible or even useful to port to new employment with the same employer?

Conflicting information on whether amended petition must be filed BEFORE material change in employment occurs • regulations state that petition must be filed to “reflect” material change, indicating that it is done after the fact)

• see also 11/95 LaFleur letters (no penalty for filing after change), but also CDI Info. Servs., Inc. v. Reno

If filing in advance is required, porting to the new employment could be useful

AC21 seems to envision such employment as “new employment” and the employer a “prospective employer” so that this situation allows for portability, but this isn’t certain


Since my I-140 has been approved (and is no longer pending), I’m not eligible for a “7th year H-1B extension”

Since my I-140 has been approved (and is no longer pending), I’m not eligible for a “7th year H-1B extension”

Post-6th-Year H-1BsPost-6th-Year H-1Bs

Extensions beyond 6 years in cases of lengthy adjudication (AC21 sec. 106(A) (as amended 2002)

Eligibility: More than 365 days have passed since filing of ETA-750 or ETA-9089 -- Need not be pending, can be approved

Extensions granted in one-year increments

May file extension petition 6 months before FN eligible

May request remainder of 6th year plus 7th

Cumulative total of 3 years possible

240 days work authorization while extension petition pending

H-4s, too

Extensions beyond 6 years in cases of lengthy adjudication (AC21 sec. 106(A) (as amended 2002)

Eligibility: More than 365 days have passed since filing of ETA-750 or ETA-9089 -- Need not be pending, can be approved

Extensions granted in one-year increments


May request remainder of 6th year plus 7th

Cumulative total of 3 years possible


H-4s, too

Extensions beyond 6 years for FNs unable to obtain immigrant visa due to per country ceiling (AC21 sec. 104(C))

Although statute does not specify this, USCIS says I-140 must be approved for FN to be eligible

Extensions may be granted in three-year increments


No cumulative limit


H-4s, too

Extensions beyond 6 years for FNs unable to obtain immigrant visa due to per country ceiling (AC21 sec. 104(C))

Although statute does not specify this, USCIS says I-140 must be approved for FN to be eligible

Extensions may be granted in three-year increments


No cumulative limit


H-4s, too

“Recouping” H-1B eligibility

Not really a post-6-year extension, but a helpful strategy for “buying time”

AAO overturned bogus INS/USCIS position that time out of the U.S. had to be “meaningfully interruptive,” and USCIS issued two “adopted decisions” and a memo explaining that any time out of the U.S. during petition approval could be recouped (see Aytes memo 10/21/2005, HQPRD 70/6.2.8)


Must have persuasive documentary evidence (stamps, copies of I-94s, etc.), and problems may arise if H-4s remained in U.S. (9 FAM 41.53 N15)


H-4s, too

“Recouping” H-1B eligibility

Not really a post-6-year extension, but a helpful strategy for “buying time”

AAO overturned bogus INS/USCIS position that time out of the U.S. had to be “meaningfully interruptive,” and USCIS issued two “adopted decisions” and a memo explaining that any time out of the U.S. during petition approval could be recouped (see Aytes memo 10/21/2005, HQPRD 70/6.2.8)


Must have persuasive documentary evidence (stamps, copies of I-94s, etc.), and problems may arise if H-4s remained in U.S. (9 FAM 41.53 N15)


H-4s, too


The employee can pay the I-129 filing fee but not the “anti-fraud” fee

The employee can pay the I-129 filing fee but not the “anti-fraud” fee

Fee IssuesFee Issues

Pursuant to 20 CFR 655.731(c)(7) ”unauthorized deductions," for purposes of the H-1B required wage obligation, include

(B) Is for a matter principally for the benefit of the employee

(C) Is not a recoupment of the employer's business expense (e.g., tools and equipment; transportation costs where such transportation is an incident of and necessary to the employment; living expenses when the employee is traveling on the employer's business) (for purposes of this section, initial transportation from and end-of-employment travel to the worker's home country shall not be considered a business expense)

Both USCIS and DOL have consistently stated that they consider filing fees and attorney fees an employer’s business expense

Related: DOL proposed rule would “ban on alien payment, directly or indirectly, of the employer’s attorney fees and costs related to preparing, filing and obtaining permanent alien labor certification” and would prohibit the employer from receiving any reimbursement of these costs from employee

Premium processing? Whose benefit?

Pursuant to 20 CFR 655.731(c)(7) ”unauthorized deductions," for purposes of the H-1B required wage obligation, include

(B) Is for a matter principally for the benefit of the employee

(C) Is not a recoupment of the employer's business expense (e.g., tools and equipment; transportation costs where such transportation is an incident of and necessary to the employment; living expenses when the employee is traveling on the employer's business) (for purposes of this section, initial transportation from and end-of-employment travel to the worker's home country shall not be considered a business expense)

Both USCIS and DOL have consistently stated that they consider filing fees and attorney fees an employer’s business expense

Related: DOL proposed rule would “ban on alien payment, directly or indirectly, of the employer’s attorney fees and costs related to preparing, filing and obtaining permanent alien labor certification” and would prohibit the employer from receiving any reimbursement of these costs from employee

Premium processing? Whose benefit?


It’s dangerous for Hs to apply for a visa as a “third-country-national” (there’s a good chance of denial)

It’s dangerous for Hs to apply for a visa as a “third-country-national” (there’s a good chance of denial)

TCN Visa ApplicationsTCN Visa ApplicationsMost Hs have no trouble applying for a visa outside their home countryTCNs most often turned away because COs unable to judge nonimmigrant

Hs are allowed “dual intent,” need not establish nonimmigrant intent, so usually no basis for turning them away

Some consulates allow NO TCNs

Remember, no “automatic revalidation” if apply for a visa

Security clearances can cause extreme delaysMost scholars had rather be in home country for the long wait

Most Hs have no trouble applying for a visa outside their home countryTCNs most often turned away because COs unable to judge nonimmigrant

Hs are allowed “dual intent,” need not establish nonimmigrant intent, so usually no basis for turning them away

Some consulates allow NO TCNs

Remember, no “automatic revalidation” if apply for a visa

Security clearances can cause extreme delaysMost scholars had rather be in home country for the long wait

unsolved mysteries - the h files sorting out h-1b myths and facts nafsa region i conference -...

Documents

university g

capexempt g

g cronin

past g

confusion g

g yesno

grace period issues

hisher grace period