Creative Interpretations of H1B Provisions Under ACTA
Posted Feb 03, 2001

Attorney Murthy attended the Midyear Conference organized by the American Immigration Lawyers Association (AILA) in late January 2001 in San Juan, Puerto Rico. There, AILA attorneys discussed various creative interpretations of the American Competitiveness in the Twenty First Century Act of October 2000 (ACTA or AC21). We share some of these interpretations with you but with the clear caveat you understand that we await INS guidance on the interpretation of various provisions of the recent law.

In earlier issues of the MurthyBulletin, we have highlighted various provisions of ACTA and various plausible interpretations of ACTA. These have given rise to numerous questions by many of you who participate in the MurthyChat sessions and are regular subscribers to our MurthyBulletin. ACTA’s interpretations mentioned in responses to questions in this article are creative and have been discussed by some of the leading AILA attorneys. However, it is important to keep in mind that the INS has not concurred with these interpretations, so that there is the possibility that the INS could issue a Memorandum or opinion contradicting these interpretations. Sample questions and possible responses are as follows:

a. Working upon Filing H1B When Not on Currently on H1B Status

Question (a)
I was previously on H1B. Then I converted to H4 when I decided to take a break from work. Now I have a job offer from a new U.S. employer who has filed a new H1B petition for me. However, the employer is requesting that I commence work upon filing the H1B petition with the INS or, at the latest, as soon as I receive the INS receipt notice of having filed the H1B petition. Am I allowed to start working under ACTA?

Answer (a)
ACTA states that in order for the H1B Beneficiary to enjoy the benefit of the portability provisions of commencing work upon filing the H1B petition, the H1B beneficiary should have previously been on H1B status or H1B visa. Nowhere in ACTA is there any reference to the fact that the person should presently be on H1B or even be in valid legal status. So it appears, subject to the caveat below, that the person may be legally allowed to start working under ACTA upon filing the H1B petition or upon obtaining the INS receipt notice of having filed the H1B petition.

b. Spouse's Ability to Extend H1B even if GC Started by Other Spouse

Question (b)
I am on H1B and my employer filed my Green Card about 2 years ago. My I-140 Petition has been approved but the priority date is not current. My spouse is on H1B with a different employer. His employer did not file his Green Card process since he expected to obtain the Green Card through me. I have only used about 3 years of my H1B but my spouse has used about 5 and half years of the H1B. Can my spouse enjoy the benefit of the one-time extension of the H1B status under ACTA until the priority date becomes current?

Answer (b)
Again, subject to the caveat below, one could argue that the spouse who has not started the green card process should be able to extend the H1B petition in this scenario. This is because the INS has previously interpreted that the H4 spouse is subject to the 6 year cap based on the H1B principal beneficiary being subject to the cap when there was no 6 year limitation on H4s under the statute. So if the principal beneficiary of the green card application would have been able to extend the H1B status in the U.S. under ACTA, the spouse should similarly be accorded the privilege of extending the H1B.

c. Previous Denial of H1B Change of Status Should Be Overturned

Question (c)
I was previously on H1B but got a job offer from another H1B employer in June 2000. The new employer wanted me to start working on an important project, so they requested that I start working immediately (in early July 2000) upon filing the H1B petition with the INS. Not knowing the law, I agreed to start working for the new employer. The INS issued an RFE requesting 2 recent pay stubs with the previous employer in August 2000. When I was not able to provide the 2 recent paystubs with my former H1B employer, the INS approved my H1B petition but did not approve the change of status in September 2000. Under ACTA, can I now file a Motion to Reconsider or a nunc pro tunc for the INS to grant my change of status?

Answer (c)
Again, the answer would appear to be yes because ACTA clearly stated that the provision allowing a person to start working for the new employer upon filing the H1B Petition is effective before, on or after the law became effective. This means that a person previously denied change of status for having worked with an employer before the H1B approval was obtained should be able to file a Motion to Reconsider or a nunc pro tunc with the INS. The reason would be that the new law specifically provides for such people to be retroactively restored to legal status. This change in the law would constitute an extraordinary change of circumstances to overcome the 30-day time frame to file most Motions to Reconsider.

Conclusion

As mentioned above, we at the Law Office of Sheela Murthy want to stress the importance of keeping in mind that the INS has not concurred with these interpretations. There is the possibility that the INS could issue a Memorandum or an opinion contradicting these interpretations. This could result in one's possibly having worked without valid authorization or being required to travel to the home country to obtain a new H1B visa stamp in the passport for having violated status, etc. It is safest to await INS guidelines or opinion on ACTA on those issues that are not crystal clear.