Labor Immigration Law

In connection with the 2007 adjustment of status (I-485) filing “blizzard” and due to the fact that there are many I-485 applicants who are hoping to switch jobs, our office has handled numerous AC21 green card porting cases.   One of the most frequent questions we receive is whether a new proposed job position is “same or similar” for purposes of complying with AC21 and meeting its requirements.

Generally, a new job should be in the same job classification as the job for which the approved immigrant petition was filed.  For example, an adjustment applicant working as Computer Analyst, where the PERM/I-140 were filed for Computer Systems Analysts (SOC code 15-1051.00) classification should be able to switch to a new job which fell under the same classification – 15-1051.00.

In a recent teleconference, the Nebraska Service Center (NSC) provided some unofficial but helpful guidance on their reasoning and practice when adjudicating AC21-related cases.   NSC was asked to provide some guidance as to their criteria in adjudicating the “same or similar” job standard.  In response, NSC confirmed that the “same or similar” has not been a significant issue because NSC has been applying a “common sense” approach – NSC has confirmed that most petitions invoking AC21 portability based on similar occupations are indeed usually similar, i.e. accountant doing another accounting position, IT consultant working in the IT field.    On the other hand, IT worker making “slurpees at the 7-Eleven” would not be considered to qualify under AC21.

While this conference call and the information about the “common sense” approach NSC takes with respect to AC21 review does not state the official USCIS position, it nonetheless provides a helpful insight into the operations and standards at NSC.  Also, it should serve to provide some relief and flexibility to the thousands of I-485 adjustment applicants who are seeking to switch jobs but when the new proposed jobs are not exactly similar to the jobs for which they were initially sponsored.

“Bridging” is when successive H-1B portability (transfer) petitions are filed for an alien while the previous H-1B petitions remain pending and while the period on the initial I-94 card has expired.   We have a number of clients who are currently “bridging” their H-1B petitions and in light of the increased number of inquiries, it may be helpful to outline the process.

Most often the questions of “bridging” arise when an employee files an H-1B transfer application from Employer A to Employer B.  While the A->B transfer application is still pending and the Employer A I-94 card has expired, the employee wishes to start work for Company C and as a result, a portability transfer application is filed (B->C).  Under the Aytes Memorandum of December 27, 2005, the employee can start work for Employer C upon filing of the Employer C transfer petition; however, under the “bridging” rule, for the Employer C petition 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 employee’s nonimmigrant status (I-94 date) has expired while the A->B or B->C 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.

As a result, if I-94 has expired and if A->B H-1B transfer is denied, then this would cause the B->C H-1B transfer to be denied because the alien’s authorized presence would no longer be supported by the A->C H-1B transfer.

About 6 months ago, USCIS made premium processing available to certain cases where the I-140 beneficiary is in danger of  H-ing out. (Our original stories.)  USCIS has just announced that it is expanding the I-140 premium processing program.  Currently, only beneficiaries who are in H-1B status at the time of  the filing of the I-140 may request premium processing.  The new program, which becomes effective March 2, 2009, will allow beneficiaries who have reached or are reaching the limitation on their stay in H-1B nonimmigrant status to request premium processing.

Eligibility Criteria

I-140 Premium Processing, starting March 2, 2009, will be available to beneficiaries who, as of the date of filing the premium processing request:

• are the beneficiary of a Form I-140 petition filed in a preference category that has been designated for premium processing service;
• have reached the sixth-year statutory limitation of their H-1B stay, or will reach the end of their sixth year of H-1B stay within 60 days of filing;
• are only eligible for a further H-1B extension under section 104(c) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) (which allows beneficiaries to extend H-1B in 3-year increments if I-140 is approved and a visa number is not immediately available); and
• are ineligible to extend their H-1B status under section 106(a) of AC21.

Documents Needed by USCIS to Determine Eligibility

USCIS has indicated that certain documents are helpful to determine the premium processing eligibility of a particular  I-140 application:

• Copies of all Forms I-94, Arrival/Departure Record and I-797 H-1B or L approval notices that have been issued on his or her behalf;
• A copy of the relating Form I-140 petition receipt notice if the form was previously filed; and,
• A copy of the labor certification approval letter issued by the Department of Labor, if filing under the EB-2 or EB-3 classifications.

Conclusion

By expanding the premium processing program for I-140s, USCIS effectively expands the window in which the premium processing request may be filed.  Previously,  only holders of valid H-1B status who had 60 days or less remaining on their status were eligible.  Now, under the new rule, premium processing can be filed 60 days before the expiration of H-1B status or after it expires.

In late January we wrote an article which described the immigration implications and options available to H-1B workers who have been laid off or otherwise terminated from their employment.  Our article was prompted by a Vermont Service Center (VSC) AILA Liaison guidance and has generated a fair amount of interest and comments.

Work Allowed While H-1B Transfer Pending Even if There is a Gap in Employment

Just this week, VSC’s AILA Liaison provides some clarifications which, in these difficult economic times, provide a fair amount of relief to terminated H-1B workers.    Our article, and the previous guidance from VSC, indicated that in order to be eligible to “port” to a new H-1B employer, the new H-1B petition must be filed before termination or before the old petition is revoked or withdrawn by the old employer.

However, if the H-1B portability criteria are met, then the foreign national would be eligible to work pursuant to H-1B portability upon filing the H-1B transfer application even if s/he was not eligible for an extension or change of status. The H-1B portability criteria are: (1) the foreign national was lawfully admitted; (2) the new H-1B petition is “nonfrivolous;” (3) the new H-1B petition was filed before the date of expiration of period of authorized stay (as described on the I-94 card); and (4) subsequent to lawful admission, the foreign national has not been employed without authorization.  (INA § 214(n))

For example, if an H-1B employee is terminated on February 1, and her employer requests revocation of her H-1B on February 1, then the H-1B status is automatically revoked pursuant to 8 C.F.R. § 214.2(h)(11)(ii).  However, the foreign national remains in the U.S. and finds a job on March 1 and the new employer files a new, non-frivolous H-1B petition on her behalf.  Since the foreign national was lawfully admitted, the petition is non-frivolous, the I-94 was not expired, and she has not worked without authorization between February 1 and March 1, then the foreign national is eligible to start work under INA § 214(n).

Scenarios Upon Approval of Pending H-1B Transfer Application

The foreign national is eligible to work until the petition is adjudicated.  Once the H-1B petition is approved, this “interim” authorization to work ceases, and one of two things can happen.  One, USCIS will use its discretion and approve an extension of status and the employee will continue to be able to work for the new sponsoring employer.  Or, two, USCIS will deny the extension of status request and the employee will have to depart the U.S., and either obtain an H-1B visa at a U.S. consulate, or, if she already has a valid H-1B visa from her former employer, she will simply need to depart the U.S. and, upon re-entry, present her old visa with the new I-797 and continue working.

Conclusion

The guidance from VSC makes it easy for employees to understand their options in the event their H-1B employment is terminated. Working for the new H-1B employer while the application is pending allows an employee to continue to receive income especially when there is a period of unemployment between the old H-1B employment and the new one.  However, it should be noted that it is possible that USCIS may decline to “forgive” the period of unemployment between the two H-1B jobs and as a result the foreign national will have to travel outside of the U.S.

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.