H1B Filing Guidance Issued
Posted Mar 31, 2006
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The U.S. Citizenship and Immigration Services (USCIS) issued H1B filing guidance on March 24, 2006. This guidance does not touch upon new issues. Rather, it is a reminder directed at the many new H1B cap-subject cases that will be filed starting April 1, 2006. The guidance addresses two H1B topics. The first is a matter of itineraries for prospective H1B employees, who will work in one or more locations. The second is proof of maintenance of status as needed to obtain a change or extension of status.
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Itinerary of Prospective H1B Employee
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The USCIS points out that the regulations require H1B employers to provide a detailed itinerary of dates and places where work will be performed, if the H1B employee will be working in more than one location. This is aimed at contractors and consultants.
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Regulation Applies to Various NIV Categories
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There are a few problems with this reminder. First, the regulation at issue applies to several different types of cases. It applies to H-3s (trainees), and H2As and H2Bs (temporary agricultural and other workers), as well as H1Bs. The other categories are of significantly shorter duration and involve different work situations from those of the H1Bs. It is more realistic to provide a detailed training itinerary, for example, than it is to know exactly what project an H1B consultant will work on approximately two years from the date of filing the H1B petition.
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Business Reality : Detailed Itinerary Not Possible Years Earlier
H1B cases must be reviewed with an eye toward business realities. The focus should be on establishing that the employer really has a job for the individual, and that it is not speculative. If the employer's business is well-established, and it is clear that there is a need for the individual's services, the exact itinerary for three years should not be a prerequisite for approval. This has long been the general approach, and is embodied in Legacy INS memos described below.
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Itinerary Does Not Require Each Day of Employment with Specificity
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Legacy INS addressed this matter in a late 1995 memo from INS Headquarters. On December 29, 1995, Michael Aytes, the then Assistant Commissioner of INS, addressed the term "itinerary" in a memo as it relates to the H1B classification. That Memo interprets the regulation at issue and provides the guidance currently followed by the USCIS. The 1995 Memo states that the purpose of the regulation is to ensure there is an actual job in the United States. Thus, it allows the itinerary requirement to be met in several, rather flexible ways. As an example, it states that the locations listed in the supporting labor condition application (LCA) may, in some cases, suffice as the itinerary. Additionally, the Memo notes that a general statement of the proposed or possible employment is acceptable. It clarifies that it is not necessary that the itinerary list each day of employment with specificity.
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Employer's Track Record of Hiring H1Bs is Relevant
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The Memo directs the adjudicators to consider the employer's past hiring practices to determine whether the itinerary requirement is met. It indicates that significant weight should be given to the fact that a company has demonstrated a past practice of employing H1B nonimmigrants in a manner conforming to the law.
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Summary - Liberal Interpretation of "Itinerary"
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Thus, Legacy INS long interpreted the itinerary requirement liberally and in keeping with realistic business practices. Very few businesses would be able to outline precisely what a particular employee will be working on over the course of three years. An employer may be able to clearly demonstrate, however, their solid position for offering a job and, barring unforeseen circumstances, their ability to keep the employee fully occupied in a professional capacity.
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Second Issue : Paychecks / Proof of Status
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The March 24, 2006 USCIS guidance also addresses the need for applicants to demonstrate that they have maintained nonimmigrant status while working for a prior H1B employer in the U.S. We note that this is a requirement for individuals seeking to change or extend nonimmigrant status while in the U.S. The usual proof of H1B status is the I-94 card and recent pay stubs. Students show the OPT card or I-94 card and transcripts.
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Fraud Concerns Must Be Addressed
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The guidance indicates that an H1B worker who is moving from one H1B employer to another needs to demonstrate that meaningful work was performed for the original petitioning employer under circumstances not reflective of fraudulent intent in that original petition. If the individual is processing the H1B visa stamp from abroad, the USCIS will work with the U.S. Department of State (DOS) to try to assure integrity in the process. Thus, it is important for prospective H1B employees to know that their employer is reliable. Similarly, employers should only file cases for those individuals whom they intend to employ, and should not be filing H1Bs speculatively or for any other reason.
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Legal Status Not Relevant When Applying for H1B Visa Stamp Abroad
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Generally, the maintenance of legal status in the U.S. is required when filing for a change or extension of status. It is not usually relevant when a person travels outside the U.S. and requests consular notification of the H1B approval to a particular consulate abroad. Sometimes, when the H1B employer violates the law by failing to pay the required prevailing wage to the H1B employee, that employee falls out of status. This necessitates that the employee travel abroad and reenter the U.S. on an earlier, unexpired visa stamp with an earlier employer, or that s/he apply for a new H1B visa stamp, if the earlier H1B visa stamp has expired. Accordingly, the H1B employee is allowed to travel abroad and reenter the U.S. by obtaining a clean I-94 card, showing valid H1B status to start working for the new H1B employer.
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Conclusion
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We at the Murthy Law Firm believe that the March 24, 2006 guidance is not an indication that the USCIS intends to revisit this matter or deviate from the interpretations that have been working reasonably well for over ten years. Besides the December 1995 Legacy INS Memo, there is another memo that we must address. In a November 13, 1995 memo from the then INS Associate Commissioner Louis D. Crocetti to INS examiners and the Service Centers, Mr. Crocetti made it clear that employment contracts from third-party vendors should not be required in most cases. Nor is it necessary to determine the ability of the employer to pay the H1B prevailing wage, or examine the credibility of the credentials evaluators. Such requests should be based on "articulate facts," as the wage is the sole responsibility of the U.S. Department of Labor (DOL), credentials evaluations should be accepted unless they contain "obvious errors," and the needless requirements of third-party contracts "should not be a normal requirement for the approval of an H1B petition filed by an employment contractor." These memos succinctly address the specific concerns that both USCIS examiners and consular officers seem to be raising. The American Immigration Lawyers Association (AILA) and other groups may need to bring this matter to light again if they are to avoid rehashing issues that were successfully resolved over a decade ago to the satisfaction of all the concerned parties.
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