Analysis of H-1B Visa Transfer Viability In the Face of Visa Irregularities – Part 2 – Joining a New Employer in H-1B visa Status After A Period of Unemployment

dreamstime_12608859.jpgCertain H-1B visa holders who had lost their employment are able to rejoin a new employer and get back in valild status by taking advantage of somewhat dormant immigration solutions introduced by the Pearson Memorandum. This article will explore two scenarios and solutions for certain H-1B visa holders who wish to return to valid status after having been out of status or out of the US. The solution lies in what is termed as “H-1B visa Portability at the Port of Entry.”

The recent economic downturn in Columbus Ohio and nationwide had been described as the worst this country had seen since the great depression. Unemployment figures had soared into the double digit. Although there is documented correlation between the employment of H-1B visa holders and innovation in the US (Harvard University Study entitled: The Supply Side of Innovation: H-1B Visa Reforms and US Ethnic Invention), companies and firms already strapped for cash laid off many H-1B visa holders. Some of those H-1B visa holders remained in the US as they too had invested into the American society by purchasing homes, cars and enrolling their children in schools. Although having lost their jobs, these H-1B visa holders could not simply pack their bags and go home due to such committments. Other more transient H-1B visa holders returned to their home countries in search of employment. Now that the economy seems to be in the recovery stage, or at least as being claimed recently in the economic news, there is an interest on the part of such H-1B visa holders to get back into employment and valid status in the US in order to pursue their American dream.

Those H-1B visa holders, who remained in the US after losing their employment, may feel a certain element of worry that they have lost their status and that they have been out of status for a while. This out of status period, they fear, may preclude them from having an opportunity to get back into status. In order to determine whether such individuals are foreclosed from getting back into status, they must openly discuss their individual circumstances with competent immigration counsel in order to determine whether they have a chance of resuming their immigration journey in the United States.

The Solution Presented by the Pearson Memorandum

The USCIS had issued a memorandum widely known as the “Pearson Memo” in 2002 which remains a viable solution today to correct the visa irregularity of certain H-1B visa holders. The writer of this article believes that one of the unanticipated consequences of the Pearson Memo is to repair the visa situation for certain H-1B visa holders who remained in the US without status for a while. It must be remembered as will be seen in the criteria created by the Pearson Memo a foreign national cannot take advantage of this solution if she remained in the US beyond the date fixed on her I-94 as such a circumstance will have created a situation of unlawful presence, a very dangerous consequence that is beyond the scope of this article.

The Pearson Memo stated that foreign nationals may take advantage of what is known as “portability at the port of entry” if they satisfy certain conditions. These conditions were specifically listed in the aforementioned Pearson Memo and are recited herein:

1. The applicant is otherwise admissible.
2. The applicant is in possession of a valid, unexpired passport and visa (including a valid, unexpired visa endorsed with the name of the original petitioner).
3. The applicant establishes to the satisfaction of the inspecting officer that he or she was previously admitted as an H-1B or the otherwise accorded H-1B status.
4. 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.
5. The applicant presents evidence that new petition was filed timely with the Service Center, in the form of a dated filing receipt, Form I-797, or other credible evidence of timely filing that is validated through a CLAIMS query. In order to be a timely filing, the petition must have been filed prior to the expiration of the H-1B’s previous period of admission. It must be emphasized that the burden of proof remains with the alien to prove that he or she is admissible as an H-1B and eligible or a visa portability provisions described in AC21.

Below are examples that I have constructed in order to fully understand these circumstances and the solutions that can be implemented to help certain H-1B visa status holders who may have lost their employment or who have additionally fallen out of status.

Example 1. Sally entered the US on a valid visa on January 1, 2009 to work for ACME International, Inc. as a business analyst. Unfortunately, she was laid off on June 30, 2010 and has remained in the US because she had hoped to find another employer and transfer her H-1B visa status. Sally recently found another employer who is willing to take her on H-1B visa status. Sally discussed her circumstances with the company’s immigration counsel who advised her that Sally has been out of status and thus could not join the new employer without leaving the US. Sally is very concerned about leaving the US due to this period of out of status.

Solution 1. The example suggests that Sally still has an H-1B visa stamp that is valid although not specifically mentioned. If Sally had not overstayed her visa by remaining in the US beyond the date fixed on her Arrival/Departure Record Form (I-94) she is eligible to take advantage of the portability benefit provided by the Pearson Memo. Sally needs to have the new employer file an H-1B visa transfer requesting consular processing. Once the receipt notice is issued, Sally needs to leave and return after a short absence. At the port of entry, Sally needs to present a complete copy of the H-1B visa petition, the original receipt notice evidencing that the petition remains pending with the USCIS, her unexpired passport with the visa stamp endorsed thereon by Acme International.

The port of entry office should allow Sally to enter and will give her a new I-94 having an expiration date which matches the expiration of her visa stamp. Once in the US, Sally is now eligible to begin her employment immediately with the new employer. Sally will have perfected “portability” at the port of entry by taking advantage of the portability provision introduced by the American Competitiveness in The Twenty First Century Act.

Important Note: It must be noted that being out of status in the US may have consequences in a subsequent green card application. In other words, the Pearson Memo provides a re-entry solution for Sally, however, it does not resolve all problems. Sally could take advantage of the forgiveness rule provided in INA section 212(k) up to 180 days of visa irregularities. This issue must be separately and carefully analyzed.

Example 2. Joan entered the US on May 1, 2008 to work for Albatross Sales, Inc. on an H-1B visa status as a Market Research Analyst. Her H-1B visa was valid for 3 years. She continued to work in this position until Albatross Sales, Inc. faced tremendous loss in sales and due to fact they experienced a reduction in workforce which culminated in Joan’s termination from employment on June 1, 2010. Joan ended her apartment lease and returned to her native country. Joan remained active searching for employment. Now Joan found a firm that is willing to employ her. How can Joan return to the US quickly to join the new employer who will not wait several months while the H-1B visa is being reviewed by the USCIS?

Scenario 2. In accordance with the Pearson Memo, Joan is also eligible to enter the US upon the filing of an H-1B visa petition by the new employer. Because Joan had held H-1B visa status and/or H-1B visa, she is could exercise portability at the port of entry. Once a new H-1B visa petition is filed by the new employer, and a receipt notice is issued, Joan becomes able to present these documents at the port of entry and gain admission under H-1b visa. Once admitted, Joan is can immediately join the new employer’s payroll.

Conclusion. H-1B visa holders who lost their employment and have been out of status but did not exceed he date on their I-94 are able to return to status upon the filing of an H-1B visa petition by a new employer. Such H-1B visa holders are able to perfect what is known as portability at the port of entry by taking advantage of the procedure outlined in the Pearson Memo. Likewise, foreign nationals who are currently outside the US who currently have a valid H-1B visa stamp can immediately return to the US by presenting proof at the port of entry that another employer had filed a bona fide H-1B visa petition on their behalf.

Contact the experienced attorneys at The Law Firm of Shihab & Associates, Co., LPA if you any type of immigration law question or matter. Our experienced lawyers are ready to put forth their experience immediately to use in your particular matter. Call us today for a free initial consultation at 1-877-479-4USA.