Transcript H-1B Unsolved Mysteries - Shelby Cearley`s Blog on International

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
Fact 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
H-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
Fact or Myth
 Hs have a 10-day grace period
 Fs and Js in their grace period are no
longer eligible for change of status
Grace 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
Fact or Myth
 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
 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
Fact or Myth
 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
 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
Fact or Myth
 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 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?
 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)
 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
Fact or Myth
 When an H-1B petition is pending, the
employee can’t leave the U.S. or it will
be denied
Travel 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?
 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
 Change of employer petition
 Travel by beneficiary has no effect, does not cause
abandonment
• 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
 If pursuing permanent residence, does the H-1B need
advance parole to re-enter?
 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
Fact or Myth
 My job would qualify as a specialty
occupation
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)
Prevailing 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?
“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?
Fact or Myth
 If the employee is not in status (e.g.
has quit the prior job), he/she does
not qualify for H-1B portability
Portability 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
 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 I129, 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
Fact or Myth
 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-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 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
 May file extension petition 6 months before FN eligible
 No cumulative limit
 240 days work authorization while extension petition pending
 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)
 May file extension petition 6 months before FN eligible
 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)
 240 days work authorization while extension petition pending
 H-4s, too
Fact or Myth
 The employee can pay the I-129 filing
fee but not the “anti-fraud” fee
Fee 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?
Fact or Myth
 It’s dangerous for Hs to apply for a visa
as a “third-country-national” (there’s a
good chance of denial)
TCN Visa Applications
 Most Hs have no trouble applying for a visa
outside their home country
 TCNs 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 delays
 Most scholars had rather be in home country for the
long wait