Yates May 2005 Memo : H1B Provisions
Posted Jun 10, 2005
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As our regular MurthyDotCom and MurthyBulletin readers know, the USCIS issued a lengthy Memo on AC21 on May 12, 2005. The Memo from Associate Director for Operations at USCIS, William R. Yates addressed both green card and H1B issues. The green card portability provisions of the Memo are covered in our May 27, 2005 article, Yates May 2005 Memo on AC21 and I-140s, available on MurthyDotCom. Important to many of our readers are the H1B issues contained in the Memo. All of these address specific provisions of the law called the American Competitiveness in the 21st Century Act of October 2000 (AC21). Many articles on AC21 are available on MurthyDotCom by searching.
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H1B Issues in the Yates May 2005 Memo
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Aspects of AC21 pertaining to H1Bs fall within two main categories: H1B extensions beyond the sixth year and H1B portability provisions.
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The extensions beyond the sixth year fit within two possible provisions. The first of these, Section 106(a), allows for unlimited one-year extensions based upon the filing of an employment-based green card case (either the Labor Certification or the I-140 petition in non-Labor Certification cases) at least 365 days prior to the expiration of the H1B six-year period.
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The second extension provision, Section 104(c), allows for three-year H1B extensions based upon the foreign national's being the beneficiary of a green card case that cannot proceed due to per-country ceilings on the number of immigrant visas that can be issued each year. This means that, if one is subject to visa retrogressions and the I-140 has been approved, then s/he would be entitled to longer H1B extensions.
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Section 106(a) One-year H1B Extension
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Single H1B Filing Allowed When Time Remains in Sixth Year
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Mr. Yates's May 2005 Memo contains some favorable guidance and changes with respect to the timing of the one-year extension filings under Section 106(a). The Memo confirms that, once a foreign national is eligible for the seventh-year H1B extension, it can be requested even if time remains in the sixth year. That is, it is not necessary to have the employer file for an H1B petition through to the end of the sixth year and then file again to request the seventh-year extension, if the individual is eligible for the seventh-year extension at the time of the combined filing. As long as 365 days have passed since a labor certification or employment-based immigrant petition was filed for a foreign national, the foreign national may file for a one-year incremental extension and any time remaining in the original six years at the same time. For example, if a foreign national's current H1B status expires on August 1, 2005, but the full six years would not be met until September 1, 2005, the employer can file an H1B petition for the foreign national with an ending validity date of August 31, 2006, if the foreign national's labor certification or immigrant petition was filed at least 365 days prior to September 1, 2005.
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The May 2005 Memo does not limit this ability to request the seventh-year H1B to filings that are made toward the end of the sixth year. The Memo states that the total time period granted on an extension cannot exceed three years, as has long been the case. The Memo states that the time requested can be the remaining time in the six years plus the seventh year, as long as the total of that time does not exceed the three-year rule. Thus, if a person is the beneficiary of a labor certification that was filed 365 days earlier, and s/he is starting the fifth year of the H1B and needs to have a new case filed, it appears that the employer could request the remainder of year five and all of year six, as well as year seven. This is quite favorable as it saves everyone time, money, and effort.
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Need to Qualify Only as of Requested H1B Start Date (Not Filing Date)!
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Yates's May 2005 Memo makes an important change from the April 24, 2003 guidance with respect to when the one-year H1B extension can be filed. Under the previous memo, the foreign national had to qualify for the seventh-year extension as of the date of filing the H1B extension. Thus, the case could not be filed until the labor certification or other employment-based green card case had been pending for a full 365 days. This was consistent with the basic immigration principle that one must qualify for a benefit at the time it is requested. It often was problematic, however, since, depending upon the particular case, this rule frequently left a very narrow window of time for the H1B filing. Since H1Bs can be filed six months in advance of the requested start date, the requirement with respect to timing is consistent with the ability to file in advance. The Memo now permits this needed flexibility.
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Under Yates's May 2005 Memo, it is necessary to establish that the extension criteria are met on or before the requested start date. Thus, the H1B petition can be filed before the 365 days are completed, as long as the initial date requested is after the 365-day requirement has been met. This is welcome news since there is often a very short period between the filing date of the qualifying labor certification or immigrant petition and the date that the initial six years of H1B status ends. The modified provisions in the Memo will now permit for advance planning, avoid the need for last minute filings and reduce the need to pay for expedited, premium processing.
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Original Beneficiary Can No Longer Get H1B Extension/s in Labor Substitution Case
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The Memo states that only the current beneficiary of a labor certification can use the H1B seventh-year extension provisions. Thus, in a labor substitution situation, in which a new beneficiary, Person B, is substituted in a case for the original beneficiary, Person A, Person A then loses his or her ability to use the labor certification as the basis for any future H1B extensions.
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Appeal of I-140 Petition Allows One to File for H1B Extensions
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The Memo permits one to continue filing for H1B one-year incremental extensions if s/he has a pending I-140 petition appeal at the Administration Appeals Office (AAO). The rationale is that a decision is not final if there has been a timely appeal. This is a welcome change, since the previous position was that only labor certification appeals, filed with the Board of Alien Labor Certification Appeals (BALCA), were sufficient to permit one to continue filing for H1B extensions.
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Eligibility for H1B Extension - Even if GC is Slow, Stalled, or Abandoned
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The Memo makes it clear that the H1B extension should not be denied even if the labor certification has been approved and no I-140/I-485 has been filed. The Memo indicated there may be further guidance on this matter. The issue is whether an H1B extension can be obtained based on a labor certification that does not seem to be making progress toward a green card. That is, there are situations where the labor certification is approved, but the case does not move forward to the next stage for a number of reasons. For the time being, it is possible to continue to file an H1B extension based on an approved labor certification case that was filed at least 365 days earlier, without consideration of whether the case has moved forward in the green card process by the filing of the I-140 petition or the I-485 application to adjust status.
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H1B Extension Allowed with Different Employer
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Consistent with a prior USCIS opinion letter, Mr. Yates's May 2005 Memo specifies that it is possible to obtain a one-year H1B extension through Employer A based on a labor certification or green card (GC) filing made by Employer B.
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We at The Law Office of Sheela Murthy find that many people are surprised when we discuss this matter with them, since it is often presumed that the H1B extension must be filed with the same employer that filed one's Labor Certification or has been processing the green card. In fact, since the GC is based on a future job offer, the two processes are considered independent to a large extent.
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Section 104(c) : "One-Time Protection" of Three-Year H1B Extension
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As mentioned above, AC21 Section 104(c) allows for a one-time, three-year extension of the H1B status, beyond the standard six-year limit on H1Bs. These are for individuals with green card cases in which both the labor certification and I-140 have been approved, but the case cannot move forward to the I-485 stage due to the per-country limitations on issuance of immigrant visas. There is no 365-day requirement in this provision. Essentially, this provision is for those who face delays due to visa retrogression caused by the unavailability of the priority dates.
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MurthyDotCom and MurthyBulletin readers who are not familiar with the important topic of retrogression should review our many articles available on MurthyDotCom covering this complex matter. The Yates May 2005 Memo confirmed previous guidance that eligibility for these three- year H1B extensions requires an approved I-140 petition. If the I-140 petition is still pending, this provision cannot be used. This provision has been part of AC21 from the beginning, but did not become important until retrogression once again became an immigration reality in January 2005.
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Although this is designated as a "one-time protection," the Memo recognizes that, in some situations involving retrogression, three years may not be sufficient. Thus, it is possible to request more than one three-year H1B extension under this provision of the law, if one is otherwise eligible for this benefit, as outlined above.
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H1B Portability Issues
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H1B Porting and Bridging
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The Yates May 2005 Memo addresses situations involving serial H1B filings and the ability to use H1B portability in these instances. Essentially, these are situations where the individual is in H1B status and desires to work with another employer. The second employer, Employer B, files a new H1B petition for the individual while that person's current H1B with Employer A is valid. In this instance, under AC21, the individual is permitted to work for Employer B following the filing of the new H1B petition. Bridging comes into play if the person finds a better employment offer, through Employer C while the case with Employer B is still pending and after the I-94 with Employer A has expired.
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The Memo states that H1B portability would apply and the individual would be eligible to work for Employer C in this situation. Ultimately, in order to get a particular "bridged" H1B approved, it must qualify as an extension of stay. Therefore, each link in the bridge must be approved in order for a later-filed H1B extension to be approved. If the person's H1B status expires while the various H1B petitions are pending, any denial of one in the string of H1B extensions will break the bridge and the later case/s will not be approved as H1B extension/s of status.
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Conclusion
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We at The Law Office of Sheela Murthy appreciate the efforts of the USCIS to favorably interpret the provisions of AC21. This will help H1B employers and employees by providing greater clarity to help them, and helping them to comply with immigration law as more of the gray areas are resolved to the satisfaction of many of those concerned.
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