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H-1B Cap Filing Tip // Predating the LCA

March 18th, 2008 2 comments

The H-1B Cap opens April 1st and this post is a last minute reminder about predating the Labor Condition Application (“LCA”) for the H-1B petition.

More experienced immigration lawyers and most savvy employers are familiar enough with LCA predating. The American Immigration Lawyers Association (“AILA”) recently published some H-1B filing tips (member access only), and LCA predating was included. But I am going to write a longer summary here because it might be useful to immigration lawyers, employers with H-1B filings, or the prospective H-1B employees themselves.

What is the LCA?

For every H-1B petition, the employer, most times through its attorney, files a labor condition application or “LCA” with the Department of Labor, to certify that the offered wage is appropriate for the position, i.e. the employer is not offering the job to a foreign worker at a lower wage than US workers are paid for comparable jobs in that area.

The filing and approval of the LCA is a requirement that must be met before filing the H-1B petition with USCIS. Through the LCA, sponsoring employers agree to several undertakings, enforceable by heavy civil and criminal penalties: Specifically, the employer agrees:

  • To pay the H1B worker at least the higher of the wage paid to similar workers in the same company or the “prevailing wage” for the occupation in the area the worker will be employed;
  • That the recruitment of the H1B worker(s) will not adversely affect the conditions of the employer’s US-resident employees in similar jobs;
  • That there is no strike or lockout occurring at the time the Labor Condition Application is submitted, and that the approved LCA will not be used to support petitions for H-1B workers to be employed at the site of any subsequent strike or lockout;
  • That a copy of the LCA form will be given to the H1B worker and either given to the bargaining representative of employees in similar occupations or (if there is no bargaining representative) posted in 2 conspicuous locations for at least 10 days in the place the H-1B beneficiary will be working;
  • To maintain records of the LCA and the H1B worker’s employment for inspection by the US Department of Labor.

LCA Timing Issues

The LCA cannot be submitted to the Department of Labor earlier than six months prior to the start date of the period of intended employment (see 20 CFR § 655.730(b)). For most H-1B petitions being filed April 1st, the intended start-date will be October 1, 2008 – the first day of Fiscal Year 2009. So the earliest an LCA could be filed would be April 1st (6 months prior to start-date of October 1st ). But the LCA must be filed before April 1st because a certified LCA (or copy) must be included with the actual H-1B petition, and the H-1B petition should be received by April 1st in order to beat the Cap.

In an ideal world, an H-1B petition would be filed with a start date of October 1, 2008, and an end-date of September 30, 2011. These dates reflect the three-year maximum validity for each approved H-1B petition. And the LCA must cover the full three years.

This is not possible, though, because of timing issues with the H-1B cap. As covered above, the H-1B petition must be received by USCIS, with a certified LCA, on April 1st. Yet the LCA cannot be filed before April 1st if it is to cover the full three years of the H-1B petition from October 1, 2008 through September 30, 2011. It’s a real catch-22.

So, what to do?

The solution is to predate the LCA with a start date earlier than October 1, 2008, and then file the H-1B petition (Form I-129) with a start date of October 1, 2008, but with an expiration date that matches up with the end date of the LCA. For example, if we were to file an LCA today, we could set the start date of LCA for September 18, 2008 and an end date of September 17, 2011. Then we could file the H-1B petition April 1st and request a start date of October 1, 2008, and an expiration date of September 17, 2011 (to match the LCA end-date).

The only drawback to this method is that the H-1B petition will be approved for less than the three-year maximum. But it is worth sacrificing a week, or even a month, of eligibility to make it possible for the petition to be accepted under the Cap.

If USCIS publishes any more H-1B Cap filing tips, I will add them to this post so check back soon.

Feel free to drop any comments or questions below.

Categories: H-1B FY2008 Tags: ,

H-1B Visa // Frequently Asked Questions

February 9th, 2008 6 comments

Just over a year and a half ago I helped put together an H-1B question and answer list. I’m going to be posting more information over the next few weeks about the H-1B visa process because of the upcoming application date. If you have other questions, drop them in the comments after this list.

What is an H-1B?
A: The H-1B is a nonimmigrant visa classification used by an individual who will be employed temporarily in a specialty occupation or as a fashion model of distinguished merit and ability.

What is a specialty occupation?
A: A specialty occupation requires theoretical and practical application of a body of specialized knowledge, along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, computer science, information technology, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology and the arts are specialty occupations.

How do you apply for an H-1B visa?
A: H-1B status requires a sponsoring U.S. employer. The employer must file a labor condition application (“LCA”) with the Department of Labor attesting to several items, including payment of prevailing wages for the position, and the working conditions offered. The employer must then file an I-129 petition with the United States Citizenship and Immigration Services (previously INS).

What is the Wage Requirement?
A. The US
employer must show that the wage offered to the beneficiary is equal to 100% of the prevailing wage as established by the Department of Labor, or the actual wage paid by the employer to similar employees– whichever is higher. The prevailing wage is usually determined through the State Workforce Agency (SWA).

How much are the filing fees?

A. There are three sets of required fees. First, the standard petition fees for the I-129 petition (currently $320) and if the prospective employee is abroad the additional fees at the consulate. Second, a fee of $1,500. But if the employer does not have more than 25 full-time employees, then only $750. Third, a $500 fraud prevention and detection fee.

Also, H-1B employers and applicants also have the option to pay an extra $1,000 for premium processing. And if there are any dependents seeking H-4 status, there is an extra $300 filing fee.

In general, the employee can pay the filing fees, assuming payment will not bring the employee’s wages below the required wage. But the $1500/$750 fee payable under section 213(c)(9) of the Immigration and Nationality Act must be paid by the employer.

Schools and nonprofits are generally exempt from the $1500/$750 fee, as are H-1B employees applying for their second extension and all subsequent extensions. The fraud fee must be paid by all employers, including schools and nonprofits, but must only be paid on initial applications or when switching employers.

NOTE: Determining the proper filing fees, especially for extensions and transfers, can be quite complicated. Please consult an immigration lawyer when making this determination for specific cases.

What is the H-1B Cap?
A. The H-1B visas per year are capped at 65,000 per fiscal year less the used Free Trade visas for Chile and Singapore resulting in around 58,200 H-1B visas. The Cap does not include an additional 20,000 visas per year for persons who have earned a master’s or higher degree from a United States institution of higher education. Also, some professors and/or researchers at institutions of higher learning and nonprofit institutions are exempt from the Cap.

Only “new employment” is covered under the Cap. USCIS can no longer count against the Cap any person who has already been counted within the last six years unless the H-1B applicant would be eligible for a new full six years of authorized H-1B admission at the time the new petition is filed. An H-1B could be eligible for a full 6 years if s/he was out of the country for a year or if the works/he was
performing in the U.S. was seasonal, intermittent or less than 6 months per year. See more on the Cap from USCIS.gov.

How long can an individual be in H-1B status?
A: An individual can be in H-1B status for a maximum period of six years at a time. After that time they must remain outside the United States for one year before another H-1B petition can be approved. Certain aliens working on Defense Department projects may remain in H-1B status for 10 years.

But there are exceptions to the 6-year limit. An H-1B holder may extend his or her status beyond the 6-year limitation if a labor certification, I-140 petition or employment-based adjustment of status application has been filed where 365 days or more have elapsed, since the filing of the labor certification (if one was required) or the filing of the I-140 petition. In this case, H-1B status can be extended in 1-year increments.

And under AC21 104(c), if the H-1B holder is the beneficiary of a 1st, 2nd, or 3rd preference employment-based petition but is unable to get his or her visa due to per country limitations, they can extend H-1B status up to 3 years at a time, but they must have an approved I-140.

Who can an H-1B employee work for?
A: An H-1B employee may only work for the petitioning U.S. employer and only in the H-1B activities described in the petition. The petitioning U.S. employer may place the H-1B worker on the worksite of another employer if all applicable rules (such as Department of Labor rules) are followed. H-1B aliens may work for more than one U.S. employer, but must have an I-129 petition filed by each employer.

What if the H-1B employee’s circumstances change?
A: As long as the employee continues to provide H-1B services for a U.S. employer, most changes will not mean that an individual is out of status. S/he may change employers without affecting status, but the new employer must file a new I-129 petition for the individual before s/he begins working for the new employer. The merger or sale of an H-1B employer’s business will not affect the employee’s status in many instances. However, if the change means that the employee is working in a capacity other than the specialty occupation for which they petitioned, a new petition must be filed.

Must an H-1B employee be working at all times?
A: As long as the employer/employee relationship exists, an H-1B employee is still in status. An H-1B employee may work in full or part-time employment and remain in status. An H-1B employee may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting his or her status.

Can an H-1B employee travel outside the U.S.?
A: Yes, an H-1B visa allows an individual holding that status to reenter the U.S. during the validity period of the visa and approved petition.

Can an H-1B employee intend to immigrate permanently to the U.S.?
A: An H-1B employee can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident status without affecting H-1B status. This is known as “dual intent” and has been recognized in immigration law since passage of the Immigration Act of 1990. During the time that the application for LPR status is pending, an employee may travel on his or her H-1B visa rather than obtaining advance parole or request other advance permission from USCIS to return to the U.S.

Who is eligible to use the H-1B “portability” provisions?
A: The portability provisions allow a nonimmigrant previously issued an H-1B visa or otherwise accorded H-1B status to begin working for a new H-1B employer as soon as the new employer files an H-1B petition for the individual. Previously, individuals in this situation had to await approval before commencing the new H-1B employment. These provisions apply to H-1B petitions filed “before, on, or after” the date of enactment (October 18, 2000), so all individuals who meet this definition can begin using the portability provisions.

If my company is acquired by another company, do I have to file for an amended H-1B?
A: No. An amended H-1B petition is no longer required when the petitioning employer undergoes a corporate restructuring, including but not limited to a merger, acquisition or consolidation, where the new corporate entity succeeds to the interest and obligations of the original petitioning employer and where the terms and conditions of employment remain the same but for the identity of the petitioner.

Can the H-1B employee work at different sites?
A. Yes, but a separate Labor Condition Application must be filed for each site at which the employee will be working.

What are the advantages to applying for an H-1B visa?
A. Unlike many other nonimmigrant visa categories, it is a “dual intent” visa. It can not be denied simply because an individual intends become a permanent resident of the United States. Also, the employer does not need to demonstrate a shortage of qualified US workers and the labor certification process can be avoided.


Can a foreign national apply for multiple H-1Bs?

A. Yes, a person can apply for multiple H-1B’s and work for more than one U.S. employer, but he/she must have an I-129 (petition for non-immigrant worker) filed by each employer. As long as the employee has been counted against the H-1B quota in the past six years, the petition to work for another employer concurrently is not subject to the cap.

Can the H-1B worker’s spouse/children work or study in the US?
A. Dependents of an H-1B worker are granted H-4 status. They cannot work unless they can obtain a work visa in their own right. Time spent in H-4 status does not count against the six-year maximum period of admission applicable to H-1B workers. Thus an individual who was previously an H-4 dependent may subsequently become an H-1B principal and will be entitled to the maximum period of stay (6 years).

H-4 dependents may undertake study in the US.

What is Labor Attestation?
A. The filing and approval of a Labor Condition Application (LCA) is a requirement that must be met before filing the H-1B petition. Through the LCA, sponsoring employers agree to several undertakings, enforceable by civil and criminal penalties. Specifically, the employer agrees:
· To pay the H1B worker at least the higher of the wage paid to similar workers in the same company or the “prevailing wage” for the occupation in the area the worker will be employed;
· That the recruitment of the H1B worker(s) will not adversely affect the conditions of the employer’s US-resident employees in similar jobs;
· That there is no strike or lockout occurring at the time the Labor Condition Application is submitted, and that the approved LCA will not be used to support petitions for H-1B workers to be employed at the site of any subsequent strike or lockout;
· That a copy of the LCA form will be given to the H1B worker and either given to the bargaining representative of employees in similar occupations or (if there is no bargaining representative) posted in 2 conspicuous locations for at least 10 days in the place the H-1B beneficiary will be working;
· To maintain records of the LCA and the H1B worker’s employment for inspection by the US Department of Labor.

Can you talk more about H-1B visa eligibility?
A. Before filing an H-1B visa, two questions must be answered affirmatively.
1. Is the US employer recruiting the beneficiary to fill a “specialty occupation”?
2. Does the beneficiary meet the requirements for the occupation?

First, the US employer must be seeking to fill a temporary position in a “specialty occupation.” The definition of a “specialty occupation” is “an occupation that requires (1) theoretical and practical application of a body of highly specialized knowledge, and (b) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation.” “Specialty Occupations” include accountants, computer analysts, programmers, database administrators, web designers, engineers, financial analysts, doctors, nurses, scientists, architects, lawyers, and more. It is important to note that the required degree must be reasonably related to the position. General degree requirements will often be challenged. The employer must be ready to demonstrate that a specific degree or narrow degree field is a legitimate prerequisite to doing the job.

Second, the foreign national must possess the required bachelor’s degree or requisite experience to qualify for the job. The beneficiary’s degree must be related to the occupation. The degree requirement calls for a degree “customarily awarded from an accredited US college or university,” but the requirement may also be satisfied by a foreign degree that is determined to be equivalent to a US bachelor’s degree. Foreign degrees must be evaluated by a US-based credentials evaluation service to determine whether they are equivalent to a US bachelor’s degree or higher. Another method of satisfying the degree requirement is by using experience. USCIS allows the use of 3 years of “specifically more responsible work experience in the field” to equate to 1 year of missing academic studies. Thus, if the foreign national has no degree, he will need 12 years of progressive experience in his field to qualify for an H1-B visa in his field. Alternatively, if the foreign national has completed 2 years towards his bachelor’s degree, he may qualify for an H1-B specialty occupation by documenting an additional 6 years of progressive work in his field.

Finally, if an occupation requires licensure or professional credentials (e.g., doctor, dentist, attorney, CPA), the individual must already hold such qualification before the H1B visa petition can be filed. It is not sufficient to show that a license has been applied for, or is expected to arrive. The individual must have a full and unrestricted ability to engage in the profession before approval will be granted.

Categories: H-1B FY2008 Tags:

H-1B Filing Fees // The Straight Dope

January 31st, 2008 14 comments

Ask three different people about H-1B filing fees and you will get three different answers. Here are the straight facts about the fees required when applying for an H-1B visa petition.

“Premium Processing adds dignity to what can otherwise be a vulgar brawl.”

Base Filing Fee

The standard H-1B filing fee is $320 for the 1-129 petition. This fee is also payable for renewals, transfers, and amendments. Almost everyone has to pay this. There can also be additional fees at the consulate when applying from abroad.

ACWIA (Training) Fee

The employer must pay a fee of $1,500 towards a training fee meant to fund the training of U.S. workers. But if the employer has less than 25 full-time employees, they must pay only one-half of the required fee which is $750 [see Section §214(c)(9) of the Immigration & Nationality Act].

The training fee is paid one time to initially grant the H-1B petition and to extend H-1B status. But if this is the second or subsequent extension with the same employer, then the training fee is not required.

The following are exempt from the training fee: primary or secondary educational institutions, institutions of higher education, nonprofit organizations related to or affiliated with any institutions of higher education, a nonprofit organization that engages in established curriculum-related clinical training of students registered at any institutions of higher education, nonprofit research organizations or a governmental research organizations [see Section 214(c)(9)(A) of the Immigration & Nationality Act and 8 C.F.R. §2l4.2(h)(19)(iii)-(iv).

Fraud Fee

A $500 fraud prevention and detection fee is required for the initial H-1B petition or to switch employers. The fraud fee is not required for extensions with the same employer [see Section 214(c)(12) of the Immigration & Nationality Act].

Optional H-1B Fees

Premium Processing adds dignity to what can otherwise be a vulgar brawl. The $1,000 fee is almost always worth every penny. Decisions are made within 15 business days. Your lawyer is provided a direct telephone number and email address for the office, and the specific officer, handling your matter (should any issue arise that needs attention). And if applicable, your family’s H4 applications will be processed along with the primary H-1B petition at no additional cost.

Family members can apply as dependents of the primary H-1B applicant. The fee is $300. See Form I-539.

Questions?

Determining H-1B filing fees can be very complicated business. The fee overview above is a good starting point. But there are always unanswered questions. Drop any more questions about H-1B fees in the comments below.

Aytes Memo on AC21 for I-140 and H-1B petitions (May-December 2005)

January 24th, 2007 Comments off

Because some versions of browsers can have difficulty opening PDF files properly, the entire Aytes Memo has been reproduced in plain text below.

To: REGIONAL DIRECTORS SERVICE CENTER DIRECTORS
From: Michael Aytes, Acting Director of Domestic Operations
Date: December 27, 2005
Re: Interim guidance for processing I-140 employment-based immigrant petitions and I-485 and H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313)

This memorandum serves to reissue the prior guidance of May 12, 2005 without change except to clarify the answer to question 1 in Section I. The entire reissued memorandum, with the clarification, follows:

Purpose
The purpose of this memorandum is to provide field offices with interim guidance on:

(1) Processing Form I-140 petitions and Form I-485 applications in connection with the I-140 portability provision of §106(c) of AC21;
(2) Adjudication of H-1B petitions in connection with the 7th year extension provisions of §106(a) of AC21;
(3) Adjudication of H-1B petitions in connection with the 7th year extension provisions of 104(c) for aliens subject to per country visa limitations; and
(4) Adjudication of H-1B petitions in connection with the H-1B portability provisions of §105 of AC21;

This interim guidance will only be in effect until regulations that are currently in progress are published as a final rule. The proposed rule may take a more restrictive position than this memorandum. Please note that the Adjudicator’s Field Manual (AFM) will not be updated at this time.

Prior AC21 Guidance

  • On January 29, 2001, the Office of Field Operations issued a memorandum entitled “Interim Guidance for Processing H-1B Applications for Admission as Affected by the American Competitiveness in the Twenty-First Century Act of 2002, Public Law 106-313.”
  • On June 19, 2001, the Office of Programs issued a follow-up memorandum entitled “Initial Guidance for Processing H-1B Petitions as Affected by the American Competitiveness in the Twenty-First Century Act (Public Law 106-313) and Related Legislation (Public Law 106-311) and (Public Law 106-396).”
  • On February 28, 2003, the Immigration Service Division issued a memorandum entitled “Procedures for concurrently filed family-based or employment-based Form I-485 when the underlying visa petition is denied.”
  • On April 24, 2003, the Office of Operations issued a memorandum entitled “Guidance for Processing H-1B Petitions as Affected by the Twenty-First Century Department of Justice Appropriations Authorization Act (Public Law 107-273).”
  • On August 4, 2003, the Office of Operations issued a memorandum entitled “Continuing Validity of Form I-140 Petition in Accordance with Section 106(c) of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21).”

All of these memoranda remain in effect and this memorandum supplements the existing guidance.

New AC21 Guidance
New issues and questions in connection with I-140 portability cases and H-1B cases have arisen since the previous guidance memoranda were issued. Implementation of the provisions of AC21 have been further complicated by the interim rule published on July 31, 2002, allowing, in certain circumstances, the concurrent filing of Form I-140 and Form I-485. Previous Service regulations required an alien worker to first obtain approval of the underlying Form I-140 before applying for permanent resident status on the Form I-485.

This guidance is intended to address those questions and issues. This memorandum is divided into four separate sections, establishing guidelines and interim procedures for use by USCIS personnel:

  • Section I – Processing of Form I-140 petitions and Form I-485 applications when there is a question of eligibility for I-140 portability benefits under §106(c) of AC21.
  • Section II – Processing of H-1B petitions where there is a question of eligibility for an H-1B extension past the 6-year limit under §106(a) of AC21.
  • Section III – Processing of H-1B petitions where there is a question of eligibility for an H-1B extension past the 6-year limit under §104(c) of AC21 (aliens subject to per country limitations).
  • Section IV – Processing of H-1B petitions where there is a question of the affect of H-1B portability under §105 of AC21.


I. Q & A ON PROCESSING OF I-140 PETITIONS AND I-485 APPLICATIONS UNDER THE I-140 PORTABILITY PROVISIONS OF §106(C) OF AC21

Question 1. How should service centers or district offices process unapproved I-140 petitions that were concurrently filed with I-485 applications that have been pending 180 days in relation to the I-140 portability provisions under §106(c) of AC21?
Answer: If it is discovered that a beneficiary has ported off of an unapproved I-140 and I-485 that has been pending for 180 days or more, the following procedures should be applied:

A. Review the pending I-140 petition to determine if the preponderance of the evidence establishes that the case is approvable or would have been approvable had it been adjudicated within 180 days. If the petition is approvable but for an ability to pay issue or any other issue relating to a time after the filing of the petition, approve the petition on it’s merits. Then adjudicate the adjustment of status application to determine if the new position is the same or similar occupational classification for I-140 portability purposes.
B. If a request for additional evidence (RFE) is necessary to resolve a material issue, other than post-filing issues such as ability to pay, an RFE can be issued to try to resolve the issue. When a response is received, and if the petition is approvable, follow the procedures in part A above.

Question 2. How should service centers or district offices process unapproved I-140 petitions that were concurrently filed with I-485 applications that have been pending 180 days and a Request for Evidence (RFE) has been issued?
Answer: If a response to an RFE is received, and the response does not adequately address the issues, or the response is simply that the beneficiary no longer works for the petitioner, or a response is not received at all, and the petition still cannot be approved:

A. Deny the petition on the merits of the case; and
B. Deny the I-485 and the portability request since there was never an approved petition from which to port.

Question 3. What is “same or similar” occupational classification for purposes of I-140 portability?
Answer: When making a determination if the new employment is the “same or similar” occupational classification in comparison to the employment in the initial I-140, adjudicators should consider the following factors:

A. Description of the job duties contained in the ETA 750A or the initial I-140 and the job duties of the new employment to determine if they are the “same or similar” occupational classification.
B. The DOT code and/or SOC code assigned to the initial I-140 employment for petitions that have a certified ETA 750A or consider what DOT and/or SOC code is appropriate for the position for an initial I-140 that did not require a certified ETA 750A. Then consider the DOT code and/or SOC code, whichever is appropriate for the new position to make a determination of “same or similar” occupational classification.
C. A substantial discrepancy between the previous and the new wage. (See Question 5 of this section for further clarification).

Question 4. Should service centers or district offices use a difference in geographic location of the employment in the approved labor certification and initial I-140, and the new employment as basis for denial in I-140 portability cases?
Answer: No. The relevant inquiry is if the new position is the same or similar occupational classification to the alien’s I-140 employment when considering the alien’s new position and job duties and not the geographic location of the new employment.

Question 5. Should service centers or district officers use a difference in the wage offered on the approved labor certification and initial I-140, and the new employment as basis for denial in adjustment portability cases?
Answer: No. As noted above the relevant inquiry is if the new position is the same or similar occupational classification to the alien’s I-140 employment. A difference in the wage offered on the approved labor certification, initial I-140 and the new employment cannot be used as a basis of a denial. However, a substantial discrepancy between the previous and the new wage may be taken into consideration as a factor in determining if the new employment is “same or similar.”

Question 6. Can multinational managers or executives classifiable under 8 USC 203(b)(1)(C) avail themselves of AC21 §106(c) (8 USC §204(j)) portability benefits even where the alien changes to a new job as a manager for an unrelated company? Can “same or similar” for multinational employees mean employment with an unrelated company?
Answer: Yes, multinational managers or executives can avail themselves of portability benefits where the alien changes to a new job as a manager or executive even for an unrelated company. However, there may be factual circumstances where such aliens cannot benefit from porting (i.e. where the job duties are vastly different, so that that the new position is not in the same or similar occupational classification as the I-140 employment).

Question 7. Should service centers or district offices request proof of “ability to pay” from successor employers in I-140 portability cases, in other words, from the new company/employer to which someone has ported?
Answer: No. The relevant inquiry is whether the new position is in the same or similar occupational classification as the alien’s I-140 employment. It may be appropriate to confirm the legitimacy of a new employer and the job offer through an RFE to the adjustment applicant for relevant information about these issues. In an adjustment setting, public charge is also a relevant inquiry.

Question 8. Can an alien port to self-employment under INA §204(j)?
Answer: Yes, as long as the requirements are met. First, the key is whether the employment is in a “same or similar” occupational classification as the job for which the original I-140 petition was filed. Second, it may be appropriate to confirm that the new employer and the job offer are legitimate through an RFE to the adjustment applicant for relevant information about these issues. Third, as with any portability case, USCIS will focus on whether the I-140 petition represented the truly intended employment at the time of the filing of both the I-140 and the I-485. This means that, as of the time of the filing of the I-140 and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have had the intent to employ the beneficiary, and the alien must have intended to undertake the employment, upon adjustment. Adjudicators should not presume absence of such intent and may take the I-140 and supporting documents themselves as prima facie evidence of such intent, but in appropriate cases additional evidence or investigation may be appropriate.

Question 9. Must a successor employer in an I-140 portability case provide a new labor certification?
Answer: No. There is no requirement that successor employers in adjustment portability cases obtain a new labor certification for those occupations traditionally requiring one. AC21 also provides that any underlying labor certification also remains valid if the conditions of §106(c) are satisfied. The beneficiary of an approved labor certification may benefit from it although the alien seeks to adjust on the basis of different employment.

Question 10. Should service centers or district offices deny portability cases on the sole basis that the alien has left his or her employment with the I-140 petitioner prior to the I-485 application pending for 180 days?
Answer: No. The basis for adjustment is not actual (current) employment but prospective employment. Since there is no requirement that the alien have ever been employed by the petitioner while the I-140 and/or I-485 was pending, the fact that an alien left the I-140 petitioner before the I-485 has been pending 180 days will not necessarily render the alien ineligible to port. However, in all cases an offer of employment must have been bona fide. This means that, as of the time the I-140 was filed and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have had the intent to employ the beneficiary, and the alien must have intended to undertake the employment, upon adjustment. Adjudicators should not presume absence of such intent and may take the I-140 and supporting documents themselves as prima facie evidence of such intent, but in appropriate cases additional evidence or investigation may be appropriate.

Question 11. When is an I-140 no longer valid for porting purposes?
Answer: An I-140 is no longer valid for porting purposes when:

A. an I-140 is withdrawn before the alien’s I-485 has been pending 180 days, or
B. an I-140 is denied or revoked at any time except when it is revoked based on a withdrawal that was submitted after an I-485 has been pending for 180 days.

Question 12. Can the 180 days that an I-485 application must be pending for I-140 portability eligibility accrue during a period when visa numbers are unavailable?
Answer: Yes. The fact that a visa number becomes unavailable after the filing of the I-485 application does not stop the number of days required for I-140 portability eligibility from accruing.

Question 13. Does the alien’s priority date change as a result of porting under §106(c) of AC21?
Answer: No. The priority date continues to be determined at the time of the initial labor certification filing with the Department of Labor or at the time the initial I-140 immigrant petition is filed with USCIS (in cases where no labor certification is required).

Question 14. Must the alien have a new offer of employment at the time the I-485 is being adjudicated under the I-140 portability provisions?
Answer: Yes. The alien cannot still be looking for “same or similar” employment at the time the I-485 is being adjudicated under the adjustment portability provisions. The alien must be able to show there is a new valid offer of employment at the time the I-485 is adjudicated.

II. Q & A ON PROCESSING OF H-1B PETITIONS UNDER THE EXTENSION PROVISION OF §106(A) ALLOWING EXTENSION PAST THE H-1B 6 YEAR LIMIT

Question 1. When an alien would otherwise be eligible for an H-1B extension, is it necessary to first file a Form I-129 requesting an extension of time to allow the beneficiary to complete or nearly complete the initial 6 years, and then file an additional Form I-129 requesting an extension of time beyond the 6 years?
Answer: No. Section 106(a) of AC21 allows an alien to obtain an extension of H-1B status beyond the 6-year maximum period, when:

A. 365 days or more have passed since the filing of any application for labor certification, Form ETA 750, that is required or used by the alien to obtain status as an EB immigrant, or
B. 365 days or more have passed since the filing of an EB immigrant petition.

Once these requirements have been met, the alien may be granted an extension beyond the 6-year maximum on or prior to the date the alien reaches the 6-year maximum. Such extensions may only be granted in one-year increments, but may be requested on a single (combined) extension request for any remaining time left in the initial 6-year period. Requiring the filing of two extension petitions merely increases petitioner and CIS workloads, and has no basis in statute. In no case, however, may the total period of time granted on an extension exceed a cumulative total of 3 years. 8 CFR214.2(h)(15)(ii)(B)(1).

Question 2. How early can a request for an H-1B extension beyond the 6th year be filed?
Answer: The April 24, 2003 guidance memorandum is modified in the following manner: a petitioner must establish that the above criteria (see Question 1 outlining requirements under Section 106(a)) were or will be met either on or before the requested start date on the H-1B extension application. Thus, an alien is eligible for an extension of H-1B status beyond the 6th year as long as either the qualifying labor certification application or I-140 petition has or will have been pending for at least 365 days prior to the alien’s requested start date, regardless of whether the H-1B extension application was filed prior to the passage of such period If the alien would no longer be in H-1B status at the time that 365 days from the filing of the labor certification application or immigrant petition has run, thus leaving a gap in valid status, then the extension of stay request cannot be granted.

Question 3. Are there cases where an alien, who has been granted an H-1B extension beyond the 6th year, will nonetheless only be allowed to remain for the 6-year maximum period of stay?
Answer: Yes. As addressed in the April 24, 2003 guidance memorandum, USCIS is required to grant the extension of stay request made under section 106(a) of AC21, in one-year increments, until such time as a final decision has been made to:

A. Deny the application for labor certification, or, if the labor certification is approved, to deny the EB immigrant petition that was filed pursuant to the approved labor certification;
B. Deny the EB immigrant petition, or
C. Grant or deny the alien’s application for an immigrant visa or for adjustment of status.

If at any time before or after the filing of the single (combined) extension request a final decision is
made on the above-stated grounds, the beneficiary of the extension request will not be entitled to an
extension beyond the time remaining on his or her 6-year maximum stay unless another basis for
exceeding the maximum applies.

Question 4. In a labor substitution context, can both the original alien and the substituted alien apply for an H-1B extension beyond the 6-year limit based on §106(a) of AC21?
Answer: No. Only the “current” beneficiary (meaning the alien that was most recently substituted into the labor certification) is eligible to get an H-1B extension beyond the 6-year limit.

Question 5. Does a timely and non-frivolous I-140 appeal pending at the AAO allow an alien to request an H-1B extension beyond the 6-year limit?
Answer: Subject to regulatory modification, as long as a decision may be reversed on direct appeal or certification to the Administrative Appeals Office (AAO), USCIS will not consider that decision final for this purpose.

Question 6. Should service centers or district offices deny a request for an H-1B extension beyond the 6-year limit where the labor certification was filed over 365 days ago, has been approved, but the I-140/I-485 has not yet been filed?
Answer: No. Until further guidance is published, a request for an H-1B extension beyond the 6-year limit should not be denied on the sole basis that an I-140 petition has not yet been filed.

Question 7. Should service centers or district offices deny a request for an H-1B extension beyond the 6-year limit where the labor certification or immigrant petition from an employer who is not the H-1B petitioner was filed for the beneficiary more than 365 days ago?
Answer: No. The statute does not require that the labor certification or immigrant petition must be from the same employer requesting the H-1B extension.

Question 8. Should service centers or district offices deny a request for an H-1B extension beyond the 6-year limit where the labor certification or the immigrant petition was filed over 365 days ago, but the H-1B nonimmigrant intends to consular process rather than adjust status?
Answer: No.

Question 9. Are H-4 dependents eligible for an H extension beyond the 6-year limit?
Answer: Yes. H-4 dependents are eligible for an extension of their H-4 status beyond the 6-year limit provided they meet the H-4 requirements and based on the principal (H-1B) alien’s eligibility for an H-1B extension beyond the 6-year limit. This includes cases where the dependent may have held another status prior to becoming an H-4 dependent. However, in order to qualify for an H-1B extension beyond the 6 year limit year of their own H-1B status, the alien must meet all the requirements independently of their H-1B spouse’s eligibility for a 7th year extension.

Question 10. What are the guidelines for processing 7th Year Extensions with the implementation of the new DOL PERM Program?
Answer: Guidance on this subject will be provided via separate memorandum.

III. Q & A ON PROCESSING OF H-1B PETITIONS UNDER THE “ONE-TIME PROTECTION UNDER PER COUNTRY CEILING” PROVISION OF §104(C) ALLOWING EXTENSION PAST THE H-1B 6-YEAR LIMIT

Question 1. Must an alien be the beneficiary of an approved I-140 petition in order to qualify for extension of H-1B status beyond the 6-year limit based on §104(c) of AC21?
Answer: Yes. Consistent with prior USCIS guidance on this subject, an approved I-140 petition is required in order for an alien to qualify for an extension of H-1B status beyond the 6-year limit under § 104(c).

Question 2. If an alien qualifies for an extension past the H-1B 6-year limit under §104(c), may an extension be granted for a period of up to three years?
Answer: Yes, provided all other H-1B statutory and regulatory requirements are met (e.g., the petition must request three years, and include a Labor Condition Application covering such period).

Question 3. If an alien qualifies for an extension past the H-1B 6-year limit under §104(c), may more than one extension be granted?
Answer: Yes. USCIS recognizes that in some cases, because of per country visa limitations, it may take more than three years for the alien to be eligible to adjust. Thus, despite the reference to a “onetime protection” a qualifying alien may be granted more than one extension under this provision.

IV. Q & A ON PROCESSING OF H-1B PETITIONS UNDER THE H-1B PORTABILITY PROVISIONS

Question 1. Can an H-1B temporary worker “port” under §105 of AC21 (INA § 214(n)) from one employer to another even after the alien’s I-94 or last approved petition has expired as long as he or she is still in a “period of stay authorized by the Attorney General”?
Answer: Yes. Under certain circumstances, an H-1B alien may still be able to port to another H-1B employer even after the alien’s I-94 or last approved petition has expired. In order to port, however, such alien must meet all the requirements of INA § 214(n), including the requirement that the new petition be filed while the alien is in a “period of stay authorized by the Attorney General.” USCIS has previously determined and issued guidance explaining what constitutes a “period of stay authorized by the Attorney General.” One example would be:

Alien is in H-1B status. Employer A timely files a non-frivolous extension of the alien’s H-1B status. Alien’s original petition, approved for Employer A, expires during the pendency of the extension. Alien is then in a “period of stay as authorized by the Attorney General” while Employer A’s extension is pending. Employer B then files new petition and alien wants to port to Employer B. Under INA § 214(n), the alien should be permitted to port because he or she is in a “period of stay as authorized by the Attorney General.”

In other words, porting under INA §214 does not require that the alien currently be in H-1B status as
long as he or she is in a “period of stay authorized by the Attorney General.”

Question 2. Can there be successive H-1B portability petitions filed for an alien while the previous H-1B petitions remain pending (i.e. creating a “bridge” of H-1B petitions)?
Answer: Yes. However, to be approved every H-1B portability petition must separately meet the requirements for H-1B classification and for an extension of stay.

Question 3. If successive H-1B portability petitions can be filed, what happens if an alien’s nonimmigrant status expires while the H-1B portability petitions are pending and a petition in the “bridge” is denied?
Answer: As stated above, to be approved every H-1B portability petition must separately meet the requirements for H-1B classification and for an extension of stay. In the event the alien’s nonimmigrant status has expired while the petitions are pending, the denial of any filing in the string of extension of stay and/or change of status filings undercuts the “bridge” that “carried” any petition filed after the expiration of any approved status which will result in the denial of the successive requests to extend or change status.
* * * * *
Questions regarding this memorandum may be directed through appropriate channels to Service Center Operations.

Categories: H-1B FY2008 Tags:

DOL decision addresses H-1B termination of employment and employer’s obligations

October 24th, 2006 Comments off

The Department of Labor (DOL) Administrative Review Board (ARB) recently published a decision addressing H-1B visa issues relating to termination of employment and prevailing wage. Amtel Group of Florida v. Yongmahapakorn, 04-087 (ARB 9/29/06).

Read the full ARB decision (.pdf, 125.4K)

Read more…

Categories: H-1B FY2008, Uncategorized Tags: