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Analysis Of The New AC21 USCIS Interpretive Memorandumby Gregory Siskind
USCIS has released a May 12, 2005 memorandum interpreting a
number of important provisions from AC21, the immigration law that created such
concepts as the portability of H-1B visas and employment-based adjustment of
status cases. The memorandum is from William Yates, the Associate Director of
Operations at USCIS’ headquarters in Washington and it is directed to the
Directors of the USCIS Regional Service Centers. The memorandum is designed to provide interim guidance until the release of regulations currently in development. The four subjects covered in the memorandum are
Yates notes that prior AC21 guidance memoranda remain in effect and
the new memorandum only provides supplemental assistance. ADJUSTMENT
PORTABILITY UNADJUDICATED
I-140S AND ADJUSTMENT PORTABILITY The first issue addressed is how to handle adjustment portability
when 180 days have passed since filing the I-140 and I-485, but the I-140 has
not yet been approved. The key point is that portability can be permitted in
this case. The memorandum then provides guidance for examiners on how to
handle such cases. If the underlying I-140 is approvable, the examiner is
instructed simply to proceed with processing the I-485. If the I-140 is
approvable but for an ability to pay issue or an issue arising after filing the
I-140, the case should be approved on its merits and then the examiner should
determine if the new job meets the portability test of being in the same or a
very similar occupation. If
additional evidence is needed to resolve a significant post-filing issue such as
ability to pay, the examiner can issue a request for evidence to try to resolve
the issue. If the examiner then finds the case approvable, it can then move to
the adjustment application. However, there is still a significant risk for an employee in a
case like this. If an RFE is issued on the I-140 and the employer either fails
to respond or indicates that the employee is no longer working for the employer,
the examiner will deny the I-140 and also deny the adjustment application.
“SAME”
AND “SUBSTANTIALLY SIMILAR OCCUPATIONS One of the more difficult areas for immigration lawyers in the AC21
adjustment portability statute has been the question of whether a new job meets
the “same” or “substantially similar” occupation test. The new
memorandum provides some specific information on what these terms mean. Three
factors will be used to determine if the test is met are
A change in geographic location should NOT be considered by an
examiner. And the offer of new
employment needs to be in place at the time the adjustment application is
adjudicated. PORTABILITY
FOR MULTINATIONAL EXECUTIVES AND MANAGERS EB-1 multinational executives and managers CAN avail themselves of
adjustment portability even when the new company is not related to the original
sponsoring employer. But the new position must still meet the “same or
substantially similar” test noted above. REQUIREMENTS
OF THE NEW EMPLOYER A new employer is NOT required to demonstrate an ability to pay the
worker. However, it is permissible to ask questions to see if the new employer
is bona fide and an adjustment applicant still must document that he or she will
not become a public charge. A new employer is NOT required to file a new labor certification
application and a beneficiary of a labor certification from an earlier employer
can still benefit from that earlier filing. SELF
EMPLOYMENT AND ADJUSTMENT PORTABILITY The new Yates memorandum makes it clear that it may be
permissible for an applicant to port to a position of self employment. However,
the basic “same or substantially similar” test needs to be met, the new
employer needs to be legitimate, and the examiner can probe whether the initial
job was really the position of intended employment at the time the application
was filed. WHAT IS THE 180 DAY
CLOCK ACTUALLY COUNTING? One of the more confusing aspects of portability is whether
the 180 day clock means that an applicant needs to remain with the sponsoring
employer for 180 days or if it is referring to the time that the adjustment
application needs to be pending for portability to apply. The new memorandum takes the more latter and more liberal
interpretation. The basis for adjustment is not actual or current employment,
but a prospective job. In fact, the I-140 need not be based at all on an
applicant’s current job. The only requirement is that the I-485 must be
pending 180 days and, importantly, that the applicant truly intended to work for
the initial I-140 sponsor upon approval of the adjustment. Examiners are not
permitted to presume the absence of such intent. WHEN IS THE I-140
SERVING AS THE BASIS FOR PORTABILITY NO LONGER VALID? The I-140 will no longer be valid for portability purposes
when it is withdrawn by the employer before the I-485 has been pending 180 days,
where the I-140 is denied, or where the I-140 is revoked and the revocation did
not take place before after the I-485 has been pending for 180 days. WHAT
HAPPENS TO ADJUSTMENT PORTABILITY WHEN EB PRIORITY DATES RETROGRESS AFTER THE
ADJUSTMENT IS FILED? Adjustment portability still is permitted in such cases and the 180
day clock continues even if a visa number is no longer immediately available.
WHAT
HAPPENS TO AN APPLICANT’S PRIORITY DATE AS A RESULTING OF PORTING IN AN
ADJUSTMENT CASE? Nothing. The priority date remains the date of the filing of the
initial labor certification or the date of the filing of the I-140 when an
approved labor certification is not required.
TIMING
OF AN H-1B SEVENTH YEAR EXTENSION REQUEST The new memorandum addresses the question of whether an
applicant must first get an approval to fulfill the balance of six years before
then requesting an extension to go beyond six years under the seventh year
extension request rules. This might be the case where someone had an approval to
take them into the middle of six years, but not to the end of the sixth year and
the person has a labor certification application already pending for a year. The
USCIS takes the position that a seventh year extension request could be asked
for at this point without having to get an approval first to reach the end of
six years. The approval beyond the sixth year still could only be granted in a
one year increment, however. The applicant needs to have completed the one year labor
certification or I-140 post-filing period before the requested start date on the
seventh year extension period. A final decision to deny a labor certification or I-140
that is the basis for a seventh year extension will result in any additional one
year extensions being denied, though it will not affect the approval that was
made before the denial. Until one’s right to appeal an I-140 is exhausted or
an actual I-140 appeal is denied, the decision is not considered
“final.” Also, in the case of an extension based on a labor
certification, the I-140 need not be filed before requesting the seventh year
extension even if the labor certification has been approved. LABOR
CERTIFICATION SUBSTITUTIONS AND SEVENTH YEAR H-1B EXTENSIONS In the case of a labor certification beneficiary substitution, only
one party can apply for a seventh year extension based on that case. Only the
“current” beneficiary – the one most recently substituted into the labor
certification – is eligible for the extension. EFFECT OF CHANGING
EMPLOYERS ON SEVENTH YEAR EXTENSIONS The labor certification or I-140 that serves as the basis
for a seventh year extension need not have been filed by the same employer that
is filing for the H-1B. EFFECT OF CONSULAR
PROCESSING ON SEVENTH YEAR EXTENSIONS It also does not matter if an applicant intends to consular
process his or her green card application rather than adjusting status. SPOUSES, CHILDREN AND
SEVENTH YEAR EXTENSIONS H-4s
are eligible for extensions just as H-1B principal applicants are.
Spouses also on an H-1B are not entitled to the seventh year extension
for their own H-1B case unless they independently meet the AC21 seventh year
extension requirements. H-1B
EXTENSIONS BASED ON THE PER COUNTRY CEILING PROVISION OF AC21 Section 104(c) of AC 21 permits EB-1, EB-2 and EB-3
applicants to seek an extension of their non-immigrant status when their green
card applications are being held up because the per country limitations on a
particular green card category are backlogged. To qualify for an H-1B extension
in this case, the I-140 needs to be approved. Extension applications under this
provision may be granted in increments of up to three years. And despite the
reference in AC21 to only granted a one time protection under this section, the
new memo makes it clear that a qualifying alien may be granted more than one
extension under the provision. H-1B
PORTABILITY RULES UNDER AC21 “PORTING” WHEN A
PERSON IS NO LONGER HAS A VALID I-94 OR THE APPROVED PETITION HAS EXPIRED.
Porting is still permitted if the applicant remains in a
“period of stay authorized by the Attorney General.” A common example of
this situation would be if one timely files for an extension of an H-1B with
Employer A, the I-94 and original petition expire after filing the extension and
then the applicant wants to switch to Employer B. The timely extension
application ensures that the worker is in legal status so portability still is
available. SUCCESSIVE H-1B
PORTABILITY PETITIONS An applicant who takes advantage of portability for one
employer and then decides to move to another can claim portability for the next
job as long as the applicant can separately show that each of the two jobs met
the requirements for H-1B classification and the applicant is otherwise eligible
for extension of stay.
This strategy can be risky, however, since the USCIS states in the memorandum that if an applicant’s H-1B status expires while the petitions are pending and one of the petitions is denied, the “bridge” will be undercut and portability will not be available anymore.
Gregory Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at gsiskind@visalaw.com.
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