Neufeld Memo of USCIS on H1B/GC under AC21 : Part 2
Posted Jul 11, 2008
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Read Parts 1 & 3 of this article :
Neufeld Memo of USCIS on H1B/GC under AC21 : Part 1  Jul.04.2008
Neufeld Memo of USCIS on H1B/GC under AC21 : Part 3  Aug.08.2008
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MurthyDotCom and MurthyBulletin readers were first informed last week of the memo issued May 30, 2008 pertaining to the American Competitiveness in the Twenty-First Century Act of 2000 (AC21). That article, Neufeld Memo of USCIS on H1B/Green Card under AC21: Part I, discussed revisions in the USCIS policy regarding H1B extensions beyond the six-year limitation. Two additional provisions of the memo, H1B concurrent employment and H1B employees attempting to change employers after reporting labor violations, are explained here for the benefit of MurthyDotCom and MurthyBulletin readers. Part 3 of this article will address other aspects of the Memo, including guidance on changing employers during the employment-based, permanent residence process.  
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Concurrent H1B Employment with Cap-Exempt and Cap-Subject Employers
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It is possible to have H1B petitions approved for simultaneous or "concurrent" employment with more than one employer. The typical situation is an individual working both in full-time employment as well as a part-time job. There are other scenarios in which an individual might hold multiple part-time positions. An interesting issue arises in the context of concurrent employment in which the foreign national is working in H1B status for a cap-exempt employer, but wishes to accept concurrent employment with a cap-subject employer. Normally, to obtain approval of a cap-subject H1B, it is necessary to have a cap number available, if the foreign national has not previously been counted against the H1B cap. However, due to a nuance in the wording of the law, it is possible to obtain approval of concurrent employment with a cap-subject employer, even if no cap number is available. An explanation of H1B cap exemptions is available in our June 16, 2006 MurthyBulletin article, USCIS Guidance on H1B Cap Exemptions, available on MurthyDotCom.
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In describing when a cap number is needed in order to approve a cap-subject H1B petition for a person working in H1B status for a cap-exempt employer, the law uses the term "ceases to be employed." It states, in sum, that a cap number is needed to approve an H1B for an individual who ceases to be employed by a cap-exempt employer. Thus, where the cap-exempt employment continues (i.e. does not cease) an H1B can be approved for concurrent employment, even through an employer is cap exempt. The Memo confirmed this policy. Specifically, the Memo confirms that a cap-subject H1B employer may request approval of concurrent H1B status for an employee without regard to the H1B cap as long as that employee is maintaining and does not cease his/her H1B status with the cap-exempt employer. The Memo further states that if the USCIS determines that an H1B employee later ceases employment with the cap-exempt employer, any subsequent cap-subject petitions filed on the individual's behalf will be denied unless cap numbers are available.
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Changing H1B Employers after Termination for Reporting Labor Violations
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The USCIS Memo also provides beneficial guidance in the context of H1B workers who have reported employer violations of Labor Condition Applications (LCAs). The law provides for certain protections for such workers, who may be out of status after being terminated by their employers in retaliation for reporting the LCA violations. Generally, in order to request a change of employer and extension of H1B status, the H1B worker must be maintaining H1B status with the current employer at the time of filing. However, USCIS adjudicators have now been instructed that, if one can demonstrate credible evidence that the H1B worker is out of status as a result of being terminated by the previous employer in retaliation for reporting LCA violations, the adjudicator may attribute the employee's status issue to “extraordinary circumstances” and grant an extension or change of status notwithstanding the fact that the petition or application was filed after the employee was no longer maintaining status.
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Readers should note that this portion of the memo covers only out-of-status situations created due to termination in retaliation for reporting LCA violations. It does not cover other job-loss or out-of-status situations.
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Conclusion
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The provisions of the Memo described in this article are helpful in confirming and interpreting existing law and policy. MurthyDotCom and MurthyBulletin readers should look for explanation of additional portions of this extensive Memo in Part 3 of this article, which will be forthcoming.