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Bloggings On PERM Labor Certification

by Joel Stewart

Editor's note: Here are the latest entries from Joel Stewart's blog.

December 21, 2008

More about H-1B Beyond the Sixth Year

In my last blog, two weeks ago, I explained how an H-1B worker can change status, even after the sixth year of H-1B status has begun, and then return to H-1B status later, when a PERM case has been filed for one year. I received several comments about this. One had to do with issues of dual intent. I decided not to include dual intent in the original blog entry, but decided to write about it each week.

There is an issue of intent when dealing with immigrant and non-immigrant actions. The point is that a non-immigrant should not expect to come to the US with the intention to stay permanently. One of the tests is whether an alien has a residence abroad to which he or she wants to return.

To stem the tide of foreign visitors who wish to come to the U.S. for illegal purposes or for indefinite duration, the U.S. Consuls have the right to reject applicants under 214-B, a law which states that the burden of proof is on the alien to proof that the alien wishes to come temporarily, and not permanently. More simply stated, there is a presumption that visitors to the U.S. are intending immigrants.

The State Department has an operating instruction (not a law!) which creates a 30-60-90 day rule to measure intent. The idea is that if an alien comes to the U.S. as a visitor and then begins to inquire about studying or working, or starts studying or working, the State Department considers that the alien may have committed fraud.

The 30-69-90 day rule works like this: There is a presumption that the alien committed fraud if study or work is begun during the first 30 days after arrival. If during the period between 30-60 days, there is no presumption. And if during the period from 60-90 days, there may be a finding of fraud, but the government has the burden to prove it.

The 30-60-90 day rule is not a law or regulation, but it demonstrates to us the way 214-B works when applied to persons applying for visitor visas and coming to the U.S.  If they expect to engage in illegal conduct, like studying and working without an appropriate visa, they should be denied the visa under 214-B, and if they obtain a visa under false pretenses and come to the US and begin illegal activities within the first 60-90 days, they can be charged with visa fraud and therefore excluded from the United States.

Not only statements made in the Consulate come under review for possible visa fraud, but also statements made at the airport. If the visitor tells the inspector that he or she is going to Disney world, and instead goes to work, this would be a clear case of visa fraud.

Now, this is a PERM Blog, and the reason we are talking about this is that if an H-1B worker wants to change status, to remain beyond the sixth year with a PERM case pending, the H-1B worker has to consider the effect of non-immigrant intent when changing status. If the H-1B worker applies for a change of status to visitor and then later goes back to H-1B, this is not inherently illegal or improper. In fact the alien is permitted to do this. But the alien cannot have preconceived intent to break the law. When applying from H-1B to B-2 status, for example, the alien has to have formed a temporary intent to stay in the U.S. This would not in and of itself preclude the alien from applying for a work visa later on, after enjoying B-2 status as a tourist or temporary visitor.

This is all very complicated, but suffice it to say, that statements made to obtain visas have to be made truthfully, and applications for temporary status may be inconsistent with immigrant intent, depending on the details of the case.