H1B Employment from Cap-Exempt to Cap-Subject Employer Posted Jun 01, 2007 ©MurthyDotCom The USCIS has issued a favorable opinion letter dated May 23, 2007, regarding the ability of an individual in H1B status through a cap-exempt employer to work for a cap-subject employer after the filing of the cap-subject H1B petition. The issue presented is whether one who is in H1B status, with a cap-exempt employer, who has a cap-subject H1B filed on his or her behalf by a new employer, can start working based upon H1B portability while the case is pending and BEFORE the requested start date on the new H1B case. The answer to this was, "Yes," with some qualifiers. This topic has been discussed within the immigration community for some time, and has been addressed in MurthyChat sessions, as well. This is, however, the first official, written USCIS opinion on the topic. ©MurthyDotCom Example of Switching from Cap-Exempt to Cap-Subject Job ©MurthyDotCom Mr. X is working in H1B status for university A; a cap-exempt employer. He obtains a new job offer from private business B, which is cap subject. The new employer, B, files an H1B petition on April 2, 2007, requesting a start date of October 1, 2007. October 1st is the earliest possible start date, because when one moves from cap-exempt university employment to cap-subject employment, s/he must be counted against the H1B cap. So, the question arises: "Can Mr. X use the H1B portability provisions in AC21 to start work for employer B between April and October 2007, even before the start of the new H1B petition?" ©MurthyDotCom Argument Allows for Employment before H1B Start Date ©MurthyDotCom The exact language of AC21 permits the beneficiary who has already been issued an H1B visa or was in H1B status to accept new employment upon the filing of a new H1B petition. It does not reference the need for the start date to be immediate or put any other limitations in place. Thus, based on a literal reading of the law or statute, the argument is that a person should be able to start employment upon the filing of the cap-subject case, even if the start date of the H1B petition is months away. ©MurthyDotCom USCIS Opinion Allows Employment under Certain Conditions ©MurthyDotCom The USCIS opinion letter concludes that the portability provisions do not confer H1B status to the individual. Rather, what is given is a narrower benefit of continued employment authorization. Thus, the USCIS concluded that, in the example given, the individual would be permitted to continue working IF s/he is covered by a valid labor condition application (LCA), filed by employer B during the entire period from April until October 2007. Additionally, s/he must otherwise be eligible for an extension of status, with no "break" in the I-94 validity period prior to October 1, 2007. That is, in the example, the I-94 with employer A would need to extend at least until the requested October 1, 2007 start date with employer B. ©MurthyDotCom LCA Must be Valid from before H1B Requested Start Date ©MurthyDotCom We note that an LCA must be in place during the interim between the filing of the H1B petition by employer B and the requested start date. This is not difficult. It just needs to be done, even though that is not the normal practice. Typically, if an H1B case were being filed with an October 1, 2007 start date, the LCA validity would start on October 1, 2007. (It may have been prepared with a slightly earlier start date due to cap filing logistics, but that is an unrelated matter for this example.) In this example, the LCA would have to have a validity covering the period before October 1st, in which the individual wished to work for the new employer. Since LCAs can only be valid for a maximum of three years, this means that one may need two LCAs in order to cover the entire three-year period requested for the H1B. ©MurthyDotCom When Does the H1B Employment Authorization End? ©MurthyDotCom A significant question not clarified in the USCIS opinion is, "What happens when the H1B petition through employer B is approved?" The AC21 H1B portability provisions at issue state that employment authorization shall continue until the new H1B petition is adjudicated. The regulations further state that, if the new petition is denied, such employment authorization shall cease. ©MurthyDotCom Thus, the common interpretation of this has been that, even if work is authorized between the time of filing and before October 1, 2007, that employment must cease after the H1B petition is decided. That is, clearly if the H1B petition is denied, the employment authorization ends. Even if it is approved, however, a standard reading would seem to indicate that the employment authorization would also end, until the October 1, 2007 start date. (So, if it is filed on April 2nd and approved on August 2nd, one would be able to work between April and August 2, 2007, but would have to cease working until October 1, 2007.) ©MurthyDotCom Anomaly Created by AC21 ©MurthyDotCom This interpretation creates an anomaly, however, wherein a person with a pending application has more privileges and benefits than an individual with an approved application. Thus, the attorney requesting this opinion argued that an alternative would be to read the law as terminating the employment only in those cases of a denial, since that is the only specific reference to ceasing employment authorization. ©MurthyDotCom The USCIS did not decide this point, but stated that they would consider it in a future rulemaking. They also indicated agreement with the argument that employment authorization should continue, since "it makes no sense" for a person with a pending petition to be in a better situation than one who has an approved petition. ©MurthyDotCom Conclusion - Favorable but Risky after USCIS Decision ©MurthyDotCom This opinion is a favorable step towards assisting those who are transitioning from H1B cap-exempt employment to H1B cap-subject employment. It does not, however, reach a conclusion on the question of what happens with respect to employment authorization between the time the case is approved and the time of its effective start date. This gap between approval and the start date could span several months. Thus, there remains some risk and uncertainty following approval of such an H1B petition. ©MurthyDotCom Additionally, the USCIS notes that, in drafting the AC21 portability provisions, Congress did not appear to contemplate the situation where H1B status would not be immediately conferred upon the H1B worker. That much seems clear, when a person would be allowed to work under the literal wording of the law prior to the earliest possible start date that can be requested. Copyright © 2007, MURTHY LAW FIRM. All Rights Reserved
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