H1B Portability: A Change in USCIS Policy? Part 2 of 2

[Part 1 of this news article, H1B Portability: A Change in USCIS Policy? Part 1 of 2 (13.May.2011), is available on MurthyDotCom.]

In Part 1 of this article, a narrowing of the USCIS’s interpretation of the American Competitiveness in the 21st Century Act (AC21) was discussed with respect to employment under the H1B portability provisions. Part 2 covers the consequences of this variation. The primary impact is likely to be felt by individuals who previously engaged in employment that was based on a broader reading of AC21.

Background of H1B Portability

H1B portability, under AC21, pertains to the conditions under which an individual is eligible to work based on a pending H1B petition when changing employers. As discussed in Part I of this news article, H1B Portability: A Change in USCIS Policy? Part 1 of 2 (13.May.2011), the USCIS has articulated a policy regarding H1B portability that limits its use to individuals who are changing from an H1B with employer “A” to moving to an H1B with employer “B.” As explained in Part 1, the language of the law, as well as prior Legacy INS and USCIS memoranda led many to understand that H1B portability was available to a broader group of individuals.

Concerns surround individuals who wish to resume H1B status after changing from that status to a different nonimmigrant status (often H-4 or F-1). Many of these individuals, and their employers, understood the USCIS guidance to allow employment of such individuals based upon the filing of an H1B petition on their behalf. In Part 1, there are common examples of these situations that MurthyDotCom and MurthyBulletin readers may find helpful.

USCIS: Only H1B to H1B Enjoys H1B Portability

On April 7, 2011, the USCIS rejected the view that a person who has previously held H1B status, but is now in a different status (seeking to change back to H1B via the filing of a new employer’s petition), is eligible to take advantage of H1B portability. This means that the USCIS would no longer allow such an individual to work based upon the pending H1B petition, but rather s/he must wait for the H1B petition approval. This USCIS opinion and policy was articulated in question-and-answer format, issued to the American Immigration Lawyer’s Association (AILA).

Under this view, the USCIS has limited the applicability of H1B portability to two situations. First, H1B portability would be available for an otherwise qualified person who holds H1B status and has a new employer that has filed an H1B petition. Second, as explained below, it would also apply to one who is not currently maintaining H1B status, but who held that as her/his last status, did not change to another status, and is “in a period of authorized stay.”

USCIS Asserts Consistency

The USCIS expressly denied that this articulation of interpretation of H1B portability constitutes a change from their earlier position. The USCIS stated that this was the official interpretation of the H1B portability provisions all along. As discussed in Part 1, the USCIS stated in a May 2005 memorandum that H1B porting does not require that an individual currently be in H1B status, as long as the foreign national is in a period of authorized stay (and the individual held H1B status at an earlier time).

The USCIS explained this interpretation of their earlier policy language, stating that the prior announcements referred only to the specific situation in which a foreign national’s H1B status had expired, but an employer had filed a timely H1B petition requesting extension of the H1B status. Such an individual would be in a period of authorized stay based on the pending H1B petition.

USCIS Assertion of Consistency Complicates Matters

Whether or not one agrees with the current USCIS interpretation, the statement clearly eliminates eligibility for individuals whose last held status was not H1B. What is more problematic than the limited policy is the assertion that it does not reflect a change in policy. Since the USCIS first articulated a policy on H1B portability in June 2001, a great many individuals, employers, and attorneys were led to understand the scope of these provisions far more broadly than this latest USCIS statement on the matter.

Potential Problems if Relying on Earlier USCIS Policy

Many foreign nationals have started employment based on what they believed to be valid authorization under H1B AC21 portability. If the USCIS views this past employment as unauthorized, there could be significant consequences in a variety of contexts. Attorneys at the Murthy Law Firm have started to receive inquiries from individuals with case concerns due having engaged in prior employment that is now construed as unauthorized. At this time, the number of such cases is small, but there are certainly many people who potentially could face problems if the USCIS were to decide to take it further.

Risk of I-485 Denial When Violations Exceed 180 Days

A history of engaging in unauthorized employment can result in ineligibility for adjustment of status (Form I-485) to permanent residence (“green card”). It also could result in the denial of requests for changes or extensions of nonimmigrant status. This problem can be cumulative, because AC21 H1B portability requires that an individual has not previously engaged in unauthorized employment. Thus, one might inadvertently run afoul of these provisions when seeking to change from H-4 to H-1 and, when later seeking to change from H-1 with employer A to H-1 with employer B, inadvertently run afoul again, because of the unknown history of unauthorized employment.

This cumulative impact is important, as for I-485 green card cases there are provisions that allow approval in employment-based cases, if such violations do not exceed 180 days. Thus, the first inadvertent unemployment, if short in duration, might not prohibit I-485 approval. But, if there are repeated instances of this inadvertent violation, the total period could easily exceed 180 days.

Murthy Law Firm Observations: Change in USCIS Policy

While the exact meaning of the AC21 H1B portability provisions and many other matters under AC21 have long been unclear, in our experience at the Murthy Law Firm, until recently, the USCIS did not raise this issue in nonimmigrant changes of status (COS) or extension of status (EOS) cases.

While the USCIS need not always have reason to know one’s entire employment history in a COS/EOS case, they do become aware in some instances. Thus, had this policy been consistently interpreted, instances of it would have arisen far earlier. Moreover, in our experience, this concern previously was not raised in I-485 cases, where the USCIS has detailed lists of prior employment, chronicled by month and year. The USCIS clearly reviews the employment-history information with respect to employment authorization, and issues requests for evidence (RFEs) for proof of work authorization, if questions arise. Application of the current articulation of the AC21 H1B portability to employment occurring prior to April 7, 2011 could create a significant level of disruption in the I-485 process. As of this writing, we at the Murthy Law Firm have not seen this as a problem with respect to I-485 approvals, but very little time has elapsed since issuance of the revised USCIS policy.

Conclusion

Given the restriction articulated by the USCIS, anyone who has questions about H1B portability should seek legal advice before engaging in employment on this basis. Those who believe that they might have inadvertently violated status by relying on a broader interpretation of H1B portability based on earlier USCIS guidance, should contact their attorneys or the Murthy Law Firm to schedule a consultation to understand the risks and options. We will continue to keep track of any further developments to help our readers and the wider immigrant community.

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