Effect of approval notice gaps on portability
Porting under INA § 214(n) 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."
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."
USCIS memo HQPRD 70/6.2.8-P, Wm Yates, May 12, 2005
DHS interim guidance also states that "bridging" is possible (successive H-1B portability petitions filed for an alien while the previous H-1B petitions remain pending), but in such cases, every H-1B portability petition must separately meet the requirements for H-1B classification and extension of stay. If a petition in the "bridge" is denied, complications will arise:
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.
December 2010 Archives
Effect of approval notice gaps on portability
This two-part article addresses the common issues with "porting" from one H-1B employer to another H-1B employer. An H-1B worker in the United States may change employers to work pursuant to H-1B with another employer. This is known as H-1B "portability," or an H-1B "transfer," or simply change of employer.
The H-1B Transfer Petition:
An H-1B transfer petition is exactly the same as the original H-1B petition. It involves filing a new LCA, and I-129
The House and Senate have not passed any immigration laws recently that have gained headlines. Yet, as the following indicates, Congress has not been complacent in this regard. These bills would have far reaching effects for the states, including Columbus, Ohio where unemployment remains a focal political issue. Here are just a few of the immigration related legislation to have made it ot the House and Senate since October 2010:
Introduced by Rep Duncan (R-TN), the Marine Sergeant Michael H. Ferschke, Jr. Memorial Act (H.R.6397) would amend the Immigration and Nationality Act to consider as a spouse, wife, or husband a party to a marriage ceremony in which the parties were not in each other's physical presence, and the marriage was not consummated, if the failure to consummate was caused by physical separation because of one party's active-duty status abroad in the U.S. Armed Forces. The immigration laws act to benefit those serving in the armed forces and this is no exception.
Introduced by Rep. Lofgren (D-CA), H.R.6396 would amend the INA to toll, during active-duty service abroad in the Armed Forces, the periods of time to file a petition and appear for an interview to remove the conditional basis for permanent resident status, and for other purposes.
Introduced by Rep. Green (D-TX), the Pakistani Temporary Protected Status Act of 2010 (H.R.6505) and due to flooding in Pakistan qualifies Pakistan for designation under the Immigration and Nationality Act pursuant to which its nationals would be eligible for temporary protected status (TPS) in the United States. Designates Pakistan as a TPS-eligible country for an initial 12-month period. Sets forth related TPS eligibility requirements, including continuous U.S. presence since July 22, 2010.
Introduced by Rep. Cao (R-LA) Vietnam Human Rights Sanctions Act (H.R. 6433) directs the President to: (1) impose financial and immigration/entry sanctions on listed nationals of Vietnam who are complicit in human rights abuses committed against nationals of Vietnam or their family members, regardless of whether such abuses occurred in Vietnam; and (2) submit to Congress a publicly available list of individuals determined to be complicit in such human rights abuses. Authorizes the President to waive sanctions: (1) to comply with international agreements; and (2) if in the U.S. national interest. Terminates sanctions if the President certifies to Congress that the government of Vietnam has: (1) released all political prisoners; (2) ceased its practices of violence, detention, and abuse of citizens of Vietnam engaging in peaceful political activity; and (3) conducted a transparent investigation into the killings, arrest, and abuse of such political activists and prosecuted those responsible.
Introduced by Rep. Giffith (R-AL) H.R.6438 amends the INA to direct the Secretary of Homeland Security (DHS) to adjust an alien's status from conditional resident to lawful permanent resident if such person: (1) became a conditional resident as an alien entrepreneur, alien spouse, or alien child on or before December 31, 1998; (2) filed an application to remove conditional resident status on an I-829 form on or before December 31, 2000; and (3) had such form or a motion to reopen or reconsider the denial of such form pending before DHS as of the date of the enactment of this Act.
The US Attorney General Eric Holder has appointed 23 new immigration judges to immigration courts throughout the US. The judges were sworn in by Acting Deputy Attorney General Gary Grindler at the Executive Office for Immigration Review's (EOIR) headquarters on November 5, 2010. The newly appointed judges are: Silvia R. Arellano (Florence), Jerry A. Beatmann Sr. (Oakdale), Jesse B. Christensen (New York ), Steven J. Connelly (Batavia), Philip J. Costa ( Los Angeles), V. Stuart Couch (Charlotte), Thomas G. Crossan Jr. (Pearsall), Leo A. Finston (Newark), Saul Greenstein ( Houston), Amy C. Hoogasian(San Francisco), Stuart F. Karden (Orlando), F. James Loprest Lisa Luis (Houston), Jr. (New York), Joren Lyons(San Francisco), H. Kevin Mart(Miami), Sheila McNulty(Chicago), Maureen S. O'Sullivan(Los Angeles), Daniel J. Santander (Pearsall), Alice Segal (New York), Andrea H. Sloan (Portland), Dan Trimble (Stewart), Eileen R. Trujillo (Denver), Clarence M. Wagner Jr.(Honolulu), and Virna A. Wright (New York).
The recent addition will help reduce the backlog of immigration cases throughout the US and even into Columbus, Ohio where deportation in immigration court remains at a high level.
The latest results issued by the USCIS indicate that there is still sufficient time to file for an H-1B visa to start in the 2011 fiscal year. The latest projections show that 53,900 of the 65,000 visas allotted for the FY 2011 have been accepted. The current rate of H-1B visa consumption indicates that petitioner's will most likely have just enough time to file for a new H-1B visa beneficiary under the current cap and receive an approval to hire that worker on an H-1B basis without waiting until the next financial year, starting in October 2011. Companies that anticipate the need to hire a worker on an H-1B basis to keep up with staffing needs can still do so if quick action is taken.
The Amount of Time Needed to File an H-1B Visa on an Expedited Basis.
An H-1B visa can be filed with the USCIS in as little as nine days. Because of the new centralized system whereby the Department of Labor examines and approves the petitioning business's existence as well as the wage to be paid to the beneficiary in relation to the location of employment and the proposed job duties, a wait time of about seven calendar days must now be calculated into each new H-1B visa. This wait is caused by the submission of a document called the Labor Condition Application (LCA) to the Department of Labor. Each application is reviewed by the Department of Labor, which checks to see if the company has a valid FEIN Tax ID number and if the petitioning company will be paying a salary that is equal or greater than the prevailing wage for the job applied for in the location of employment. However, with quick action and good communication between the petitioning company and its attorney, the LCA portion of the H-1B visa process can be quickly filed and approved.
What is the H-1B Visa Cap?
Congress has mandated that only 65,000 H-1B visa applications for persons who are filing for a new H-1B visa, as opposed to an extension of a previously approved H-1B visa, will be approved per year. Additionally, 20,000 more H-1B visas are allotted for persons who hold at least a master's degree from a college or University in the United States. New H-1B visas are made available every October, but the USCIS allows petitions to be filed beginning in April of every year at the beginning of the fiscal year. Usually, the H-1B cap for visas to be handed out in October of 2010 has still not been reached. This means that petitioners still have the opportunity to hire an H-1B worker in the current fiscal year, or in other terms, immediately.
When will the H-1B Visa Cap be reached?
Although no one can predict with exact certainty the date that the H-1B cap will be reached, based upon the slow application rate thus far, it is fair to say that an H-1B visa that is filed within the next two weeks will have a fair chance of being accepted for processing.
For all new citizens during their naturalization oath ceremony, USCIS now provides a standard U.S. Citizenship Welcome Packet which contains information to help new citizens prepare to exercise the rights and responsibilities of U.S.Citizenship. Useful information includes information like applying for a U.S. passport, updating social security records and petitioning for family members. The packet also includes:
- A congratulatory letter from President Obama,
- A pocket size edition of the declaration of independence and Constitution of the United States,
- passport application,
- Naturalization certificate holder,
- A voter's guide to Federal elections.
On November, 18, 2010, the Executive Office for Immigration Review (EOIR) opened, the Orlando Immigration Court at its new location at 3535 Lawton Road, Suite 200, Orlando, FL 38203. The telephone number is 407-648-6565, with telephonic and in-person assistance from Monday to Friday from 8.00am to 4.30pm.
If you are removal proceedings in Florida, you may now be reporting to the new Immigration Court, which will be able to handle cases more quickly with the added resources of this Court.
After passing through the House of Represenatives, the Senate has failed to deliver on passing the bipartisan DREAM Act. The DREAM Act stands for the Development, Relief and Education of Alien Minors and was drafted to provide a conditional pathway to legal permanent residence for certain unauthorized youth who, as children, were brought to the U.S. illegally if they can provide that they completed high school, have good moral character and complete at least two years of higher education or serve for at least two years in the U.S. military.
It appeared to all parties who have monitored this bill that the inability to pass the DREAM Act into law was chiefly due to politics. This bill can be seen as a litmus test for greater reform which worries and frustrates immigration practitioners. There is still hope for furtuer legislation however as interested parties such as the American Immigration Lawyers Association (AILA) and others will continue its efforts to lobby for the law's passage because they see the Senate's failure as nothing more than politics
The bill provides a path for those illegal children who came to the U.S. involuntarily and are here illegally through no fault of their own. The children who would have benefited under the DREAM Act would help the American economy by being educated in institutions of secondary education and/or by serving the U.S. armed forces. By not passing the bill, the U.S. Senate is basically saying that it does not want to deal with immigration issues, even logical ones, which should seem to spell doom for any Comprehensive Immigration Reform in the near future.
On November 9, 2010, President Obama issued an Executive Order establishing an interagency Federal Export Enforcement Coordination Center. The Center will serve for the executive departments and agencies to coordinate and enhance their export control enforcement efforts. It will also serve as a conduit between Federal law enforcement agancies and the U.S. Intelligence Community for information relating to export control.
This order is directly related to the Obama administration's efforts to create better enforcement of the immigration laws in relation to U.S. exports. Creating new agencies in this economic environment will create government jobs but will also add to the U.S. deficit. The Obama administration should encourage Congress to pass comprehensive immigration reform. But it has been unwilling to do so and will continue to ratchet up enforcement efforts with creating new government agencies such as this.
Ohio Immigration Lawyer: Supreme Court Split on Illegal Immigration Marks Need for Comprehensive Immigration Reform
In yet another display for the need of Comprehensive Immigration Reform (CIR), the Supreme Court of the United States appears as though it will remain deadlocked on the issue of whether state laws may punish companies for hiring illegal immigrants. From all accounts, it appears that the Legal Arizona Workers Act, or the "business death penalty" will stand. The Supreme Court's stalemate could very well signal trouble for other state and local immigration laws.
Lower courts have upheld the Arizona law, which imposes the so-called business death penalty on employers who are caught twice konwingly hiring illegal workers. The Obama Administration joined with the Chamber of Commerce in arguing that the state law should be voided because it conflicts with the federal government's authority over immigration. Since Justice Elena Kagan announced that she would not participate in the decision, a 4-4 split is possible meanining that no precedent would be set and the law would be upheld.
It has been more than 30 years since the U.S. Supreme Court has ruled on a clash between a state and the federal government over immigration. The current split marks the need for a comprehensive overhaul of the U.S. Immigration laws. Given that states and cities across the country are considering new enforcement measures to target illegal immigration, these controversies will continue until Congress enacts broad sweeping legislation to deal with illegal immigration. CIR will create a uniform set of rules for a broken immigration system and will stop states from pushing the boundaries of federalism and the constitution.
Congress can end the controversy by reforming the broken Immigration system through comprehensive immigration reform. New federal immigration laws could be challenged in federal courts and appeals to the Supreme Court challenging the new laws would allow the Court to decide the constitutionality of Congressioanl acts. The current split highlights problem: states want immigration reform and will reform their laws in the absence of Congressional action. The Supreme Court will continue to be asked to decide whether states' acts conflict with broken federal immigration laws until action by Congress finally ends the debate.
Contrary to popular belief, the sky is not falling. America's economic engine is picking up steam once again and businesses are hiring for key positions in engineering and technology. Adding an employment based green card process to your company's benefit package is an excellent way to help your firm attract and retain key human resources within your firm. In fact, the employment based green card processes is designed to be utilized by employers in the manner of an employee benefit, with the employer controlling the initial stages of the green card process. However due to the complex nature of the recruitment and application process, attorney consultation and guidance is strongly recommended for companies considering this avenue. Below are some of the considerations that human resource specialists, executives or business owners should consider when weighing the green card process for their organization.
What is a Green Card?
A "green card" is short hand or slang for the immigrant status of being lawfully accorded the privilege of permanently residing in the United States as an immigrant. It is the lawful permanent resident status or "LPR" status is the goal of many foreign national employees. LPR status allows a foreign national the ability to live and work in the United States for a virtually unlimited duration while in good behavior. The "green card" is just a document that is indicative that a person holds lawful permanent resident status.
Employers are in a unique position of being able to provide one of only a few avenues to LPR immigration status. Virtually everyone has heard that a "green card" can be received through marriage to a US citizen. Additionally, it is true that you can legally buy your way to a green card through the EB-5 million dollar investor visas. People who gain asylum in the United States due to persecution also receive green cards. An employer in certain situations can apply for the LPR status of an employee as well.
Green Card as an Employee Benefit?
The employer, after following certain regulations and procedures handed down by the Department of Labor and the USCIS can apply for an employee's green card. This manner of obtaining a green card is very popular among those persons holding bachelors or higher levels of education. In fact the intention of congress when it established the employment based green card process that must be used in most situations was to have the employer pay for and control the employment based green card process. Because the procedure is controlled by the employer, the employer can use it as a recruitment and retention tool, just as any other employee benefit that it offers its employees.
In most situations, US employers are only allowed to sponsor the LPR or Green Card status of a foreign national after proving that there are not enough US workers who are willing and able to fill the position that the employer has in mind. In order to prove that there are insufficient workers for the position, Department of Labor regulations require that the worker market be tested at a certain location and at a certain time through a campaign of recruitment of US workers for the position. Program Electronic Review Management (PERM) is the name of the regulations that instruct employers on how exactly they are to recruit and advertise the position to potential American workers. Only after an employer follows the PERM regulations, can it apply to the Department of Labor to certify that it looked for American workers but none were available. Due to the complex nature of these regulations, many employers choose to retain counsel to aid them in this application process.
Why can't I hire anyone that I want?
Before an alien worker may be hired on a permanent resident Green Card basis, an application must be made to the Department of Labor stating that there are not enough workers able, willing and qualified to do the job in a specific location and at a specific point in time. Many business owners echo the question listed above. For those who thought that this country is based upon freedom of contract, think again. The federal government has great control over labor standards and exercises its authority through the Department of Labor. Additionally, the federal government has complete control over immigration matters. Unsurprisingly, applying for the Green Card of an employee requires applications to both the Department of Labor and the US Citizenship and Immigration Service. Because the Green Card process is a balancing act between the separate requirements of separate governmental entities, attorney representation and guidance is highly recommended.
A practice advisory published by the Association of International Educators ("NAFSA") focuses on new H-1B attestations for employers seeking to employ a foreign national as an H-1B worker. This article is the conclusion to part 1 which looks at the proposed new Form I-129H Supplement and Data Collection Supplement in the H-1B context and advises H-1B employers on exactly what the new form means to them. Columbus, Ohio remains strong in H-1B employment chiefly due to its booming tech industry and strong banking and insurance sectors relying on foreign labor to implement new software systems and support existing ones.
Proposed New I-129 H Supplement: New Attestations
The new I-129 H Supplement will add statements that the petitioner will obtain and post a new LCA when the employee is "assigned to a position in a new location." Employers interested in strict compliance with the H-1B regulations have always done this procedure, but now the form specifically asks that the employer attest to this fact in black and white. What this means for the employer is that it cannot now claim that it was unaware of such requirements. The Obama administration is enforcing the H-1B regulations in a more rigid manner than ever before. Employers need to be aware that if they do not comply, they will be audited, often resulting in huge civil penalties.
In addition, the new H Supplement requires that the employer will not charge back the ACWIA fee to the beneficiary, and will consider any other required reimbursement as "an offset against wages and benefits paid relative to the LCA." Again, this was always required under the regs; but it is now required up front. If you are an employer and do not know what this means, please contact an experience immigration lawyer to help you understand your rights and obligations under the H-1B regulations.
Proposed New H-1B Data Collection and Filing Fee Exemption Supplement:
In the proposed New H-1B Data Collection and Filing Fee Exemption Supplement, questions are added to determine exemption status regarding the additional fee of $2,000 for H-1B petitions and $2,500 for L petitions. Public Law 111-230 signed into law by President Obama on August 13, 2010 now requires petitioners employing 50 or more employees and more than 50 percent of the petitioner's employees are H-1B, L-1A, L-1B, or L-2 nonimmigrants (also known as H-1B dependent employers) to pay an additional $2,000 filing fee. Employers have been annotating their H-1B filings with an attestation concerning this requirement while Form I-129 was being amended to include questions that dealt with this requirement. Now the employers will not have to make the additional annotation, but simply must state this fact on the Data Collection Supplement.
In a recent announcement, the U.S. Embassy in London posted a notice that certain O and P visa applicants are eligible to apply for a new visa without having to attend an interview with a U.S. consular officer. If the applicant previously provided a complete set of fingerprints and is applying to renew the same category of visa that is still valid or has expired within the last 12 months, the exemption may apply. The applicant can use the Visa Reissuance Wizard, available on the embassy's website, to see if he or she is exempt. In all cases, a consular officer always reserves the right to request that an applicant appear for a personal interview.
A practice advisory published by the Association of International Educators ("NAFSA") focuses on new H-1B attestations for employers seeking to employ a foreign national as an H-1B worker. Columbus, Ohio is one city in America where employmer sponsored H-1B employment remains strong. This article looks at the proposed new Form I-129 in the H-1B context and advises H-1B employers on exactly what the new form means to them.
Today's H-1B Program: Strict Employer Compliance!
In the "Post-Neufeld" environment, H-1B visas for third party placement works are being more strictly scrutinized. The new I-129 form allows USCIS to quickly determine what kind of H-1B case and whether the employer has complied with the H-1B regulations. An H-1B audit is not something an employer would like to face in this economy so careful attention to the attestations on the new I-129 form must be done.
Newly Revised Form I-129: Planned Changes
The proposed revisions to the new H-1B form I-129 includes several changes. For beneficiaries in the United States, the form asks for SEVIS number of beneficiary if the beneficiary is an F, M, or J nonimmigrant. This includes a parenthetical instruction at the Date Status Expires box to read "(mm/dd/yyyy) or D/S"; the current instruction does not explicitly say D/S. The form also includes a new question that asks about prior status as J-1 or J-2, and for copies of IAP-66/DS-2019 or J visa stamp page.
Questions about Proposed H-1B Employment:
The proposed I-129, H-1B form will seek information about the proposed employment and employer. The new questions ask if an itinerary is included with the petition (Y/N) and whether the beneficiary will work "off-site" (Y/N). There will be a new question on whether beneficiary will work exclusively in the Commonwealth of the Northern Mariana Islands (CNMI). The form will also ask for current number of employees in the U.S.; current form asks for current number of employees. The form also contains new certification language for the petitioner to recognize that USCIS can conduct "on-site compliance reviews." It should be kept in mind that an employer was always certifying that an on-site review could be conducted. Now an employer has to affirmatively allow such a visit. The H-1B employees should be aware that USCIS officers may come and ask them questions about their employment. It is very important that an employer knows what they can and cannot require from their employees. For questions regarding this, an experienced immigration lawyer should be contacted.
The Executive Office for Immigration Review (EOIR) has announced an expansion of its legal orientation and pro bono program (LOP). It is extending the LOP to serve DHS detainees who are in immigration proceedings before the Barick Street Immigration Court in New York City. In addition, EOIR is currently piloting an LOP program at the Miami Immigration Court for non-detained respondents who are unable to find legal assistance and may be mentally incompetent. EOIR also has created a LOP for custodians of unaccompanied alien children.