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USCIS Drafts Exceedingly Reasonable Memo On AC21

by James Eiss, Esq. and Danielle Rizzo

On May 12, 2005, USCIS authored memorandum to guide its officers in adjudicating applications filed under the American Competitiveness in the Twenty First Century Act (AC21).

As with all internal agency memoranda, this AC21 memo is intended solely for the guidance of USCIS officers and is not intended to be relied upon by foreign nationals or their U.S. employers. Reliance on the guidance in memoranda is unlikely to protect a foreign national in a court of law. Nevertheless, regulations have yet to be issued to implement AC21, and the memos that have been released provide the only insight we have into how USCIS officers are advised to decide AC21 cases. That said, the interpretations of AC21 adopted in the memo are incredibly helpful to foreign nationals.

You may wish to review the basic provisions of AC21 before continuing to read. Major points of interest in the memo are:

A. Regarding I-140 Portability

1. Porting prior to I-140 approval

If a foreign national ports to a new employer prior to approval of his I-140 petition, but after his I-485 has been pending for 180 days, USCIS officers are instructed to review the pending I-140 petition to determine whether it is approvable. If so, it should be approved, thus supporting the foreign national's ability to port to the new employer. If it is not immediately approvable, a Request for Evidence will be sent to the I-140 petitioner. If the petitioner fails to respond or fails to provide adequate evidence to support approval of the petition, the case will be denied. An I-485 (adjustment of status) application pending on the basis of the I-140 will be denied.

2. Leaving employment with I-140 petitioner prior to the I-485 application pending for 180 days

The memo states that a foreign national is not required to work for the I-140 petitioner during the 180 days for which the I-485 application must be pending before a foreign national can port. However, if the foreign national has been working for the I-140 petitioner and then leaves the petitioner's employment prior to the 180 days have passed, it may raise the question of whether the petitioner intended to employ the foreign national upon the filing of the I-140 and I-485, if not filed concurrently. More importantly, it may raise the question of whether, at the time of filing the I-140 and I-485, the foreign national intended to undertake employment with the I-140 petitioner upon adjustment.

3. What is a "same or similar" occupational classification?

AC21 requires that when a foreign national uses I-140 portability, he only changes to a job in the "same or similar occupational classification," but does not define that phrase. The memo states that whether a job is the "same or similar" to the one described in the I-140 petition depends on the DOT or SOC code assigned to the job in the labor certification application or, if no labor certification is required, the DOT or SOC code that would apply to the job in the I-140 petition. A "substantial" difference in wages between the job described in the I-140 petition, and the job to which a foreign national ports, may be a factor in determining if new employment is the "same or similar."

4. Portability of Multinational Managers

Multinational managers may port to new employment in the "same or similar" managerial or executive occupational classification even if it is for an unrelated company.

5. Ability to Pay

The new employer to which a foreign national ports need not prove ability to pay the wage stated in the initial I-140 petition. The relevant inquiry is whether the new position is in the "same or similar" occupational classification.

6. Porting to Self-Employment

USCIS has surprisingly taken the position in the memo that foreign nationals may port to self-employment. However, there may be difficult issues of proof involved: the foreign national will have to prove the legitimacy of the self-employment; and will have to prove that the I-140 petitioner intended to employ him or her upon the filing of the I-140 petition and at the time of filing the I-485 application (if not filed concurrently). The foreign national must also have intended to undertake the employment upon adjustment. The most difficult proof issue will be showing that the I-140 petitioner intended to employ the beneficiary upon I-140 and I-485 filing. This is difficult because once the foreign national ports, the I-140 petitioner may be less than willing to provide evidence of its former intent. However, the memo also states that the I-140 petition and supporting documents are prima facie evidence of the employer's intent. But in appropriate cases, additional evidence will be necessary. The memo does not say what those "appropriate cases" will be. If additional evidence is required from the I-140 petitioner, it will likely be very difficult to obtain.

7. Timing of New Employment Offer

A foreign national cannot still be looking for "same or similar" employment at the time the I-485 is being adjudicated. This indicates that it is acceptable for some time to lapse between leaving employment with the I-140 petitioner, and accepting a new job offer in a "same or similar position." However, if the I-485 is adjudicated before a new employment offer is procured, the foreign national is out of luck.

B. Regarding H-1B Extensions Past the 6th Year

1. Timing of Filing for 7th Year Extension

Extensions of H-1B status can be approved for a maximum of three years of status at a time. There is a 6 year cap on time spent in H-1B status, unless a foreign national meets the conditions described in AC21 for extension of stay beyond the 6th year. The memo advises that a request for extension of H-1B status for one year beyond the 6th year can be requested together with a request for extension of any time remaining of the initial 6-year period. For example, if a foreign national has been in H-1B status for 4 years, he has 2 years left. But he has a Labor Certification that has been pending for a year and a half. He is eligible for a 7th year extension. When his petition is filed, his employer can request an extension of stay for a total of three years. The expiration date on the approval notice would be the end of the 7th year. In another example, consider a foreign national who has only been in the US for 3 years. If his stay is extended by his employer, it can only be extended for three years (to the traditional 6 years), because extensions cannot be granted for more than three years at a time. Now consider a foreign national who has been in the U.S. for five years, has had a Labor Certification pending for two years, and seeks to extend his stay. He can only ask for a 2-year extension: one of those years will bring him to the 6-year maximum, and the extensions beyond the 6th year can only be granted in one-year increments.

Furthermore, the memo states that a request for a 7th year extension can be filed so long as a Labor Certification or I-140 petition will have been pending for 365 days prior to the start date requested on the petition. (Previously, H-1B petitions would be denied if the qualifying Labor Cert or I-140 had not been pending for the required 365 at the time the request for extension of stay was filed.)

2. Seventh year extension filed by an employer other than the one that filed the qualifying Labor Certification or I-140 petition

The employer filing the request for a 7th year H-1B extension need not be the same petitioner that filed the Labor Cert or I-140 petition.

3. Seventh year H-1B extensions where a Labor Cert has been approved but an I-140 petition has not yet been filed on the foreign national's behalf

If 365 days have passed since the filing of a labor certification on a foreign national's behalf, the fact that an I-140 petition has not been filed on the foreign national's behalf is not grounds to deny the petitioner's request to extend the foreign national's stay beyond the 6th year.

4. Seventh year extension and consular processing

A foreign national who otherwise qualifies for extension of his H-1B status beyond the traditional 6 year maximum is not preempted from doing so by the fact that he intends to consular process rather than adjust his status.

C. Three Year Extensions Past the Traditional Six Year Stay in H-1B Status

Under section 104(c) of AC21, an extension of H-1B status may be granted in three-year increments to a foreign national whose I-140 petition has been approved and who is unable to obtain permanent residence because of visa number unavailability.

D. H-1B Portability Provisions

1. Portability and "Bridging"

AC21 allows a foreign national who was previously in H-1B status to begin new employment (or to "port") upon the filing of an H-1B petition by a prospective employer. (As opposed to having to wait for petition approval before starting the new job). The memo states that a foreign national can port to new employment while an extension of H-1B status filed by another employer is pending on the foreign national's behalf.

For example, a foreign national is working for Employer A for 3 years. Prior to expiration of the foreign national's H-1B status, Employer A files a petition to extend his stay. While that petition is pending, the foreign national's H-1B status expires but the foreign national remains in a "period of stay authorized by the Attorney General," and is authorized to continue working for 240 days under 8 CFR 274A.12(b)(20). While the extension continues to pend, Employer B files a petition for new H-1B employment on the foreign national's behalf. Under the memo, the foreign national may go to work for Employer B immediately upon the filing of the new petition by Employer B, regardless of the fact that the foreign national was technically out of status when Employer B filed the new petition.

In addition, successive H-1B portability petitions can be filed on a foreign national's behalf so long as each portability petition separately meets the requirements for H-1B classification and extension of stay. However, if one of the bridging petitions is denied, it will most likely result in the foreign national's going out of status and beginning to accrue unlawful presence.

About The Author

James D. Eiss, Esq. is a former INS officer who has been practicing law in the Buffalo, NY area for the past 16 years.

Danielle Rizzo has been a paralegal at the Law Offices of James D. Eiss for the past 4 years and just finished her second year of law school.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.