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AC21’s Portability
Provision for H1B Employees
Posted
Nov 17, 2001
As some of you may be aware, the American Competitiveness in the 21st
Century Act (AC21) of October 2000 allows an employee to begin working for a
new H1B employer as soon as that new employer files a non-frivolous H1B
petition with the INS, as long as the other requirements below are also
satisfied. We have discussed these H1B portability
issues under the AC21 law in earlier MurthyBulletin
articles located on MurthyDotCom.
The other requirements for
H1B portability are:
a) the employee must have
been lawfully admitted to the U.S.;
b) the employee must not have been employed without authorization
since lawful admission to the U.S.; and
c) the H1B petition must have been filed before the end of the
employee’s lawful admission to the U.S., i.e. prior to the expiration date
on the I-94 card.
Despite this AC21 law, there
still remain some outstanding issues that need to be clarified with respect
to H1B portability. One major issue is the fact that there is currently no
“grace period” permitted when an H1B employee changes H1B employers. The
INS is proposing implementation of a rule permitting an H1B employee who no
longer works for the original employer some period of time to file an H1B
after leaving the present employer to have the petition filed by the new
employer. This time frame could possibly be up to 60 days, as mentioned in
the INS June 2001 Initial Policy Guidance Memo. Many INS Service Centers are
currently applying a “reasonable period of time” standard, on a
case-by-case basis, for favorable adjudication where there is a gap between
leaving an employer and filing a new H1B petition. Of course, this often
results in inconsistent and confusing adjudications for H1B employees.
Since the events of September 11, 2001, however, it is unclear whether this
grace period will in fact be implemented under AC21. Of course, the INS
cannot altogether ignore the language of the AC21 law itself, which clearly
has no time limit whatsoever, implying that a person can benefit with H1B
portability, if s/he was ever previously on H1B status or had an H1B visa
stamped in the passport. Although recent events have not had any direct,
adverse effects on adjudications of H1B petitions or with respect to
employment-based immigration cases in general, the INS is in a heightened
state of vigilance regarding issues of status maintenance. We of course will
update our readers when we receive further information in this regard.
©
The
Law Office of Sheela Murthy, P.C.
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