H-1B VISA PORTABILITY PROVISIONS

The American Competitiveness in the Twenty-First Century Act, (AC 21) established several new benefits in the H-1B non-immigrant classification, and this article deals in detail with the provisions relating to Visa Portability. Section 105 of AC 21 provides that a nonimmigrant who was previously issued an H-1B visa or provided H-1B non-immigrant status may begin working for a new H-1b employer as soon as that new employer files a ‘non frivolous’ H-1B petition on the non-immigrant’s behalf, if:

• the non-immigrant was lawfully admitted to the United States;
• the non frivolous petition for new employment was filed before the end of his/her period of authorized stay; and
• the non-immigrant has not been employed without authorization since his/her lawful admission to the United States, and before the filing of the non-frivolous petition.

The status of the dependents of the H-1B principal beneficiary will be that they will continue to remain in H-4 status as long as the principal non-immigrant is lawfully working pursuant to portability benefits.

There are four contexts in which the question of whether a non-immigrant has lawfully worked or maintained lawful status under the Section 105 portability provisions may arise:

• Adjustment of status, when determining whether a non-immigrant has maintained lawful status or engaged in unauthorized employment; or
• Request for extension of stay, when determining whether a non-immigrant has maintained lawful status; or
• Request for change of non-immigrant status, when determining whether a non-immigrant has continued to maintain status; or
• Removal proceedings under INA 237(a)(1)(C)(i), failure to maintain non-immigrant status

In the June 2001 Guidance, the Immigration and Naturalization Service (INS) issued interim procedures for use by Service Personnel in the processing of different provisions under AC 21 and related legislation. One key issue involves the scope of the portability provisions.

It had been erroneously held and believed that an H-1 B worker who was laid off had 10 days to either apply for a new job or to leave the United States. This is because the relevant regulation, (8 C.F.R. s.214.2 (h)(13)(1)(A)) states that: ‘A beneficiary shall be admitted to the United States for the validity period of the petition, plus a period of up to 10 days before the validity period begins and 10 days after the validity period ends. The beneficiary may not work except during the validity period of the petition’.

This regulation, however, governs only those H-1B workers who are leaving the U.S. at the end of their H-1 validity period and is not relevant to those who are changing their employers or their non- immigrant status.

Under the portability provisions of AC 21, while it is clear that on the one hand, Congress does not appear to have limited portability benefits only to those who are working lawfully in H-1B status at the time a new employer files a new H-1B petition on their behalf, on the other hand, Congress also does not appear to have extended portability benefits to any alien who has ever held H-1B status, no matter how long ago or what the alien’s current status in the United States. Therefore the June 2001 Guidance suggests that the Service expects to propose a rule that would afford H-1B beneficiaries, who are no longer working for the initial H-1B employer, some reasonable period of time, such as 60 days, after leaving the initial H-1B employer to begin working for a new H-1B petitioning employer under the portability provisions. This prospective statement of policy is not to be taken as a final rule and has been provided solely for informational purposes to Service personnel. Until the Service promulgates final regulations addressing the above questions, Service personnel have been instructed to consult with Tracy Renaud/Headquarters Immigration Services Division on a case by case basis before denying benefits or issuing Notices to Appear on the grounds that the non-immigrant was not lawfully working or maintaining lawful status under the requirements of the AC 21 section105 portability provisions.

Admission Procedures for Non-immigrants Claiming Portability

The following procedures reflect the Service’s January 29, 2001, memo. An H-1B applicant for admission who is no longer working for the original petitioner is admissible at a Port of Entry (POE) pursuant to the portability provisions, upon presentation of the following evidence:

• that the applicant is otherwise admissible;
• that the applicant, unless exempt, is in possession of a valid, un-expired passport and visa (including a valid, un-expired visa endorsed with the name of the original petitioner);
• that the applicant was previously admitted as an H-1B or otherwise accorded H-1B status. (If a visa exempt applicant is not in possession of the previously issued Form I-94 (Arrival/Departure Record), or a copy of the previously issued I-94, the applicant may present a copy of the Form I-797 (Notice of Action), with the original petition’s validity dates); and
• that an H-1B petition was timely filed on behalf the applicant, before expiration of the validity dates of the applicant’s previously authorized period of stay. (The non-immigrant applicant is admissible to the validity date of the previously approved petition, plus 10 days.)

The admission of a dependant will be linked to the admission of the principal H-1B beneficiary, as above. If there is no evidence that a new H-1B petition has been timely filed or if the validity date of the previous petition has expired and there is no evidence that the new H-1B has been approved, neither the alien nor any dependants would be admissible under these provisions.

Hence, until final rules are promulgated, the best practical advice in today’s all-too turbulent job market is that a laid off worker should attempt to obtain a fresh job offer as soon as possible and have his new H-1B employer file a fresh H-1B petition, pursuant to which he may start working with the new employer. If the application is denied however, the alien must immediately stop working.

To avoid being ‘out of status’ after being laid off and if the alien can not find a new job within a reasonable period of time, it is advisable to either apply for a change of status as a dependant of the spouse, assuming that the spouse has a separate non-immigrant status (such as H-1B or F-1) or if the alien cannot file as a dependant of his/her spouse then to apply for a change of status to a B-1 (business visa), B-2 (tourist visa), F-1 (student visa) or other non-immigrant status if applicable. (As a word of caution it may be noted that if the alien has already filed for a green card petition then a change of status to any of these non-immigration categories would result in a denial since they all require ’non-immigrant intent.’)

If the applicant is already the beneficiary of an approved Labor Certification and Employment based visa petition and then loses the job, the new employer would have to submit a fresh labor certification and a new Employment Based Visa petition on his behalf, but the alien would be allowed to use his old priority date and his Employment Authorization Document (EAD) would remain valid. If more than 180 days have elapsed since the filing of his I-485 application for Adjustment of Status, then both the prior I-140 approval and the Labor Certification will remain valid, as long as the new job is in the same or similar occupational classification as the old one. It is always advisable to have the new employer file a new H-1B petition even though the EAD may be valid, for if the Adjustment of Status application is denied, the EAD would be invalidated and without an H-1B backup the alien would have to immediately stop working.

So far, the INS has been taking a pragmatic view of the problems that have arisen because of the high number of lay offs and has been reviewing applications on a case-to-case basis when deciding whether to exercise discretion when reviewing gaps in employment, under the current rules. If the INS decides that too much time has elapsed since the worker was initially laid off, the INS could approve the new H-1B petition but deny the application to change employers in the U.S. and the alien may need to go back home to obtain a new visa. It would appear that if the alien has an old un-expired visa, though required to return home, he may simply travel outside the U.S. and return using his original H-1B visa and the original Notice of Approval of his newly approved H-1B petition.