Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for January, 2009

AC21 – Should I invoke it and, if so, when?

The American Competitiveness in the 21st Century Act (AC21) permits an individual to transfer, or “port”, his or her green card process to a different employer if (1) the new job is the “same or similar”, (2) Form I-140 has been approved or is approvable when filed concurrently with Form I-485, and (3) Form I-485 has been pending for at least 180 days.

We have been receiving numerous inquiries from individuals who wish to “port” their green card process to a “same or similar job” with different employer.  In addition to the question whether the new job is “same or similar”, the answer to which is beyond the scope of this post, the second most often question we receive is “When Should I Invoke AC21?”

Should I File AC21 Notification with USCIS?

Invoking AC21 is automatic.  In other words, by meeting the AC21 requirements (e.g. switching to a different employer and by working in a “same or similar job”) the individual has  successfully taken advantage of green card portability provisions of AC21.  However, USCIS does not know that the individual has changed job.  As a result, it is best to notify USCIS of the job change and to inform USCIS that AC21’s requirements have been met. Filing a Ac21 notification with USCIS helps avoid problems in the future.

If a USCIS adjudicator has no knowledge of an individual using AC21 portability, and there is something wrong with the Form I-140 (revoked, for example), the adjudicator is required to issue a Notice of Intent to Deny (NOID) the pending I-485.  There have been cases when applicants responded to NOID with necessary documents to prove their eligibility for AC21, and their cases were still denied.  Although it is not difficult to reopen such a case with further explanation, it can be a real hassle and waste of time.

Another reason for filing AC21 notice is the opportunity to change the attorney of record on the I-485 case.  Often the I-485 is filed by an attorney of the former employer and after the employee departs, the former employer’s attorney may not be motivated to share with the employee any correspondence from USCIS, including time-sensitive RFE/NOIDs.

If I Decide to File AC21 Notification, When Is the Best Time To Do So?

Generally, there are two opportunities to file AC21 notification.  One is shortly after the individual starts his or her employment with the new employer.  The second one is if there is an RFE or NOID issued by USCIS.   Recognizing that there may not be an RFE or NOID issued at all, the question becomes whether it is worth spending the time (and money) to prepare and file AC21 shortly after starting the new job.

From our practice, there are certain distinct advantages to filing AC21 upon starting a new job, as opposed to doing so after receipt of a RFE/NOID:

  • You will control the timing of preparing and filing the AC21 documents — you will have time and be able to carefully prepare the documents required by the employee and your employer will have time to prepare a good employment verification letter.  On the other hand, if you wait for RFE/NOID, you will most likely be under a 30-day filing window to prepare and file the RFE/NOID response and rushing the preparation and filing of the documents will affect their quality and ultimately your case will not be presented as well as it could have been.
  • Your employee/employer relationship is likely to be very good – your employer is not likely to object to providing an employment verification letter soon after you start work.  On the other hand, if you wait for an RFE/NOID and the employer has grown unhappy, there is a strain on the employer/employee relationship or if the employer’s business is not doing well, it may be more difficult to ask for and obtain an employment verification letter.
  • You can change the attorney of record on your I-485 — if your former employer’s attorney is the attorney on record for the I-485, it is good idea to change the attorney of record as early as possible.  As indicated above, your former employer’s attorney may not be motivated or willing to share with you promptly time-sensitive correspondence from USCIS, including RFE/NOIDs.  Having your own attorney receive and address such correspondence as early as possible is important.

We Can Help You Analyze The Best Course of Action for AC21

We have helped many individuals change employers and invoke AC21 while preserving their green card process.  If done properly, such AC21 porting should not raise problems with USCIS and should allow you to take full advantage of your skills and education.  Please contact us and we would be happy to review your AC21 case and advise you on the best course of action.

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E-Verify Requirement for Federal Contractors Postponed

The requirement, imposed late last year on certain federal contractors to become E-Verify compliant or become ineligible for contracts with the federal government was due to become effective on January 15, 2009.  However, the requirement, after attack by a number of organizations special interest groups, has been postponed until at least May 21, 2009.

There are a number of legal challenges on the proposed rule and we will continue posting updates on the topic as they become available.

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Vermont Service Center: Update on Pending Cases

The Vermont Service Center (VSC) has provided an update to the number of pending cap-subject cases which were filed pursuant to the H-1B FY 2009 cap in April 1, 2008.  As of January 9, 2009, there are a total of 3,432 H-1B cap cases, in various stages of adjudication, which remain pending.

VSC has indicated that it intends to adjudicate all such cases by April 1, 2009.

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Vermont Service Center Guidance on Termination of H-1 Status

The Vermont Service Center (VSC), through the AILA Liaison, has provided some guidance and a refresher on when the H-1B status of an employee terminates in connection with termination of employment or revocation of the H-1B petition by the employer.  The timing of the termination of the H-1B status is very important, because under USCIS regulations, an application to change or extend status (which includes transfer of H-1B to a different employer, or “porting”) may be filed only if the employee has been in lawful status at the time the application is filed.

New Filing Must Occur Before Termination

VSC has confirmed that if the employee ports to a new employer (or files a different application to change or extend status) prior to the revocation of the H-1B petition filed by his or her former employer or prior to the termination of employment, then the employee will be in an “authorized period of stay” while the newly filed petition is pending (under INA 214(n)).

No Grace Period

As a result of this guidance and interpretation of the relevant USCIS laws and regulations, it is important to understand the implications of timing of filing of an H-1B transfer application.  Currently, the laws and regulations do not provide any grace period from the time the employee ceases employment until the time a new petition is filed on his or her behalf.  However, USCIS has indicated that it may, in its discretion, excuse a late filed petition when extraordinary circumstances exist pursuant to 8 C.F.R. 214.1(c)(4) which reads:

(4) Timely filing and maintenance of status. An extension of stay may not be approved for an applicant who failed to maintain the previously accorded status or where such status expired before the application or petition was filed, except that failure to file before the period of previously authorized status expired may be excused in the discretion of the Service and without separate application, with any extension granted from the date the previously authorized stay expired, where it is demonstrated at the time of filing that:

(i) The delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, and the Service finds the delay commensurate with the circumstances;

(ii) The alien has not otherwise violated his or her nonimmigrant status;

(iii) The alien remains a bona fide nonimmigrant; and

(iv) The alien is not the subject of deportation proceedings under section 242 of the Act (prior to April 1, 1997) or removal proceedings under section 240 of the Act.

As a result, H-1B employees who are terminated or have had their H-1B revoked must act immediately to secure a different H-1B sponsor who would file an H-1B transfer application or to switch to a different nonimmigrant status in order to be able to ask for USCIS’ discretion in approving such application.

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GAO Report on USCIS Fees

The Government Accountability Office (GAO) has produced another set of two excellent and very revealing reports – one reviewing the Immigration and Naturalization Fees and one suggesting improvements for the setting of USCIS fees.

The two reports are very revealing in describing USCIS’s budgetary items, its heavy reliance on filing fees to finance operations and some inefficiencies created by the fact that USCIS is self-funding to a large extent.  The reports also criticize the July 2007 fee increase which resulted in an enormous spike in applications and, according to the GAO, surprised USCIS.  One of my favorite examples was:

USCIS’s lack of timely, comprehensive fee reviews prior to 2007 led to the need for an average fee increase of 86 percent. This contributed to a surge in application volume as applicants attempted to submit their applications before the fee increase took effect, resulting in costly operational challenges. For example, the number of applications submitted increased an unprecedented 100 percent in July 2007 over the prior month, exceeding storage capacity. At the Texas Service Center unprocessed applications were stored outside in six rented 10-by-40-foot containers, double-locked, and monitored by a full-time security guard.

Yes, according to the GAO, at least some of the applications filed at the Texas Service Center were stored outside, in a 10-by-40 container (like this one), exposed to weather and other elements.

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USCIS Updates Form I-9, Employment Eligibility Verification

USCIS has updated Form I-9, Employment Eligibility Verification and the new form is available for us; however, two versions exist. Please note that the version dated 06/05/07 is only available if used BEFORE February 2, 2009. The version dated 02/02/09 will be appropriate for use ON or AFTER February 2, 2009.

UPDATE: the implementation of the updated Form I-9 has been delayed.

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Nebraska Service Center Clarifies EB-3 I-140 Processing Dates

The current Processing Times Report for the Nebraska Service Center (NSC) as of September 30, 2008 indicates that NSC is processing I-140 (EB-3) petitions filed on or before August 2, 2007.  However, NSC has indicated that they are still processing cases filed from July 1, 2007 through August 2, 2007, and it will be a couple of months before the cases filed during the 2007 Visa Bulletin “window of opportunity” are fully in process.

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Employer Who Failed to Report Termination of H-1B Employee Liable for Back Wages

A recent decision from the Administrative Review Board (ARB) held that when an H-1B employer fails to terminate H-1B employee and notify USCIS of such termination is liable for payment of back wages.  ARB held:

Under the INA’s “no benching” provisions, the employer is obligated to pay the required wage even if the H-1B nonimmigrant is in “nonproductive status” (i.e., not performing work) “due to a decision by the employer (e.g., because of the lack of assigned work)…” 8 U.S.C.A. § 1182(n)(2)(C)(vii)(I); 20 C.F.R. § 655.731(c)(7)(i).

But the employer does not have to continue to pay the H-1B nonimmigrant the required wage “if there has been a bona fide termination of the employment relationship.” 20 C.F.R. § 655.731(c)(7)(ii). The employer must notify the Department of Homeland Security (DHS) that the employment relationship has ended so that the federal government may revoke approval of the Petition for a Nonimmigrant Worker, and must, under certain circumstances, provide the nonimmigrant with payment for transportation home.  Additionally, the employer need not pay wages to an H-1B nonimmigrant who is in nonproductive status due to conditions unrelated to employment that remove the nonimmigrant from his or her duties at his or her “voluntary request and convenience” or render the H-1B non-immigrant unable to work. 20 C.F.R. § 655.731(c)(7)(ii).

The benching rule has been around for some time, but in light of economic slowdown, many H-1B employers may decide to put their employers on non-paid leave and, as a result, violate the benching rule.  It is important to consider an employer’s human resource needs and the employee’s immigrant status in connection with notifying USCIS of termination of employment.  There may be alternatives which are available to employers who are hoping to avoid temporarily paying wages to H-1B holders while expecting better economic times.  We would be happy to consult your company on this matter.

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Guidance on Retaining Priority Dates

The Vermont Service Center (VSC) has issued a practice pointer on the circumstances under which VSC will transfer a priority date to a subsequent petition.

Retaining an earlier priority date is possible when:

  1. If the same petitioner (employer) and beneficiary (employee) are parties to both the original and the subsequent petitions (under 8 C.F.R. 204.2(h)(2)) and:
    1. the subsequent petition is for the same preference classification;
    2. the original petition has not been terminated pursuant to 203(g);
    3. the original petition has not been revoked pursuant to 205; and
    4. an immigrant visa has not been issued to the beneficiary based on the original petition.
  2. If the Service erred in any way on the prior petition, an earlier priority date may be granted to correct the error on the subsequent petition.
  3. If derivative beneficiary of a family-based second preference immigrant petition (F2A) ages out (under 8 C.F.R. 204.2(a)(4)).
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February 2009 Visa Bulletin – Some Forward Movement

The February 2009 Visa Bulletin is out.  It brings some good forward movement for some employment-based categories.  Unfortunately, EB-3 ROW and EB-3 India remain unchanged.

  • EB-2 ROW remains current.  EB-2 India and EB-2 China both move forward by approximately 6 months.  EB-2 India is now at January 1, 2004 while EB-2 China is at January 1, 2005.
  • EB-3 ROW remains unchanged at May 1, 2005.  EB-3 India remains unchanged at October 15, 2001.  EB-3 China moves forward by 4 months to October 1, 2002.

The forward movement of certain EB-2 India/China and EB-3 China categories makes many applicants eligible for adjustment of status filing.  Please contact our office if we can provide you with any assistance with your adjustment of status application or if you have any questions in connection with the February 2009 Visa Bulletin.

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