Immigration Law Update: Portability
The US government enacted a substantial body of immigration-related legislation prior to the November 2000 election, and here are my comments on some of the changes. These comments are not legal advice which can be given in these matters only on a case-by-case basis. These comments do not exhaust every possible contingency and complication that could arise under the new laws.
PORTABILITY OF H-1Bs (RESTRUCTURING)
One new H-1B portability issue was embedded in Public Law 106-396, effective 10/30/00. A section of that law addressed some kinds of corporate restructurings and the need for amended H-1B petitions.
The new law explicitly states that amended H-1B petitions are not required in cases of "a merger, acquisition, or consolidation, where a new corporate entity succeeds to the interests and obligations of the original petitioning employer and where the terms and conditions of employment remain the same but for the identity of the petitioner."
Even though the statute does not mention "spin-offs," DOL settled the matter by regulation effective at the end of January 2001 by including "spin-offs" at 20 CFR 655.730(e).
PORTABILITY OF H-1Bs (JOIN NEW COMPANY ON FILING)
The other new H-1B portability issue was embedded in the "American Competitiveness in The Twenty-First Century Act" which is also known as "AC21" or Public Law 106-313. This new law allows changing employers when a "change-of-employer" H-1B petition is filed, rather than wait for its approval. This law became effective on 10/17/00, and applies to H-1B petitions filed on any date whatsoever, even before the law became effective.
There are six requirements: The proposed employee (A) must have previously been issued an H-1B visa or otherwise provided H-1B non-immigrant status, (B) must have been lawfully admitted into the U.S., and (C) must not have been employed without authorization in the U.S.
The H-1B petition (D) must have been filed with one of the regional immigration service centers, (E) must be nonfrivolous, and (F) must have been filed before the date of expiration of the proposed employee's legal permission to stay.
Under the statute, those are the six things (A - F) to look at in offering employment under Public Law 106-313. Item D raises the question as to what is a "filing" and the answer generally is that filing is accomplished when the proper form(s) signed by the proper persons with the proper filing fees are accepted by one of the regional immigration service centers. The acceptance is usually marked by taking and depositing the filing fee check.
Item E refers to nonfrivolous filings, and I recommend that the submission of a certified LCA with the H-1B be viewed as essential to its not being viewed as frivolous. In addition, none of the ordinary H-1B requirements are being waived, like evidence of the proposed employee's qualifications, which would also go to determining whether or not the petition were frivolous.
Because completing an I-9 is essential, it is important that some kind of evidence of "filing" is annotated on the I-9. Presumably this could be the official filing fee receipt, written confirmation by the delivery service (US Postal Service or Federal Express), or even bank confirmation of cashing of the check.
I recommend relying on the official filing fee receipt as evidence of "filing" for I-9 purposes. I also recommend that the I-9 should be annotated "Public Law 106-313" so that a future review would be able to determine why this employee joined the payroll of the petitioning company in advance of the H-1B petition's approval. Of course, the I-9 should be amended by annotating approval of the H-1B petition when that occurs.
"Future dating" of the LCA and the H-1B petition would disallow use of this statute at least until the future date arrives.
PORTABILITY OF AOS APPLICATIONS
AC21 (Public Law 106-313) also provided for portability of AOS applications after the AOS application has been pending for 180 days provided the new position with the new employer is in the same occupation as the position held with the former employer.
There is a good deal of misunderstanding about this statutory privilege. It does not contain a requirement that the AOS applicant work for the petitioning employer for 180 days after filing; it simply forbids the petitioning employer to withdraw the underlying permanent labor certification (AEC) and the underlying immigrant visa petition (I-140) after the AOS (I-485) has been pending for 180 days. And it allows the AOS applicant to change his or her intention as to what employer to work for on AOS approval provided the AOS application has been, or will have been, pending for 180 days prior to AOS approval.
There is some confusion as to when to notify USCIS about changing employers. The key to understanding this issue is to realize that AOS is about the applicant's intention at the time of approval of the AOS application. Thus, the best times to notify USCIS are in response to an RFE, in the context of an interview about the AOS application at a local USCIS office, or at the time of processing for the green card manufacturing. A letter sent to one of the regional immigration offices has little or no chance of reaching the applicant's service file.
The new employer will have to I-9 the new employee and I suggest that the I-9 be annotated to show "Public Law 106-313" so that future reviews will understand the basis for the employee's transfer of employment. An employee in such a situation can take advantage of the portability of H-1Bs and/or rely on an EAD based on the I-485 to demonstrate employment permission with the new employer.
Note: EADs and advance paroles acquired in the context of an I-485 application are not dependent on the employer, only on the continued pendency of the adjustment application.