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The USCIS released an interoffice memorandum produced on May 12, 2005, which clarifies a number of recently developed concepts regarding H-1B visas and employment based adjustment of status cases. As many of the regulations discussed in AC21 are still being developed, the memorandum provides interim guidance for adjudicating affected cases. The explicit purpose of the memorandum provides guidance on:
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Processing Form I-140 petitions and Form 1-485 applications in connection with the I-140 portability provisions of §106(c) of AC21;
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Adjudication of H-1B petitions in connection with the 7 th year extension provisions of §106(a) of AC21;
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Adjudication of H-1B petitions in connection with the 7 th year extension provisions of §104(c) for aliens subject to per country visa limitations; and
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Adjudication of H-1B petitions in connection with the H-1B portability provisions of §105 of AC21.
The author of the memorandum, Associate Director for Operations of USICS William Yates, points out that the interpretive guidelines provided in the memorandum are temporary-rules that are more permanent may prove to be much more restrictive.
In a series of complex hypothetical Q&A's, Yates delves into proper methods of application processing for concurrently filed I-140 & I-485 forms:
ADJUSTMENT PORTABILITY
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If 180 days have passed and the I-140 has still yet to be approved, portability is permitted. Assuming the I-140 is approvable, normal procedure should be followed in processing the I-485. If the I-140 is approvable other than an ability to pay, the case should be approved on its merits, and the examiner shall determine if the new job meets the portability test of being in the same or similar occupation. Additional evidence may be requested in warranted cases. If the case becomes approvable, the processing of the adjustment application may begin.
One caveat exists: if a request for additional evidence occurs in examination of the I-140, and the employer fails to respond, indicates that employer no longer employs the alien, or withdraws the alien's petition, the I-140 will then be denied. This assures denial of an adjustment of status application.
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The USCIS also creates a standard for the "same" or "substantially similar" occupation test. Many immigration lawyers have been struggling with the vague concept; however, the creation of clear criterion will allow more opportunities for clients to take advantage of portability. The three major determining factors provided by Yates in this test are:
- Description of the job duties contained in the ETA 750A or the initial I-140 and the job duties of the new employment to determine if the are the "same or similar" occupational classification.
- The DOT code and/or SOC code assigned to the initial I-140 employment for petitions that have a certified ETA 750A or consideration of what DOT and/or SOC is appropriate for the position for an initial I-140 that did not require a certified ETA 750A.
- A comparison in wages. Large discrepancies tend to imply a significantly different occupation.
Examiners should not use geographic location as a test for job similarity. The offer of new employment, though, must be in place at as the adjustment of status application is adjudicated.
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EB-1 multinational executives and managers may avail themselves of adjustment portability, even if the new employing company is in no way related to the original sponsoring company. However, the positions will be subject to the "same or substantially similar" test as previously discussed.
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New employers are not required to demonstrate and ability to pay workers. The USCIS may, however, ask questions for verifying the legitimacy of employers.
New employers are not required to file a new labor certification application. Aliens may still receive benefits from prior filings with original employers.
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Under the temporary rules of the Yates memorandum, "porting" to a position of self-employment is permissible; however, the "same or substantially similar" test will still be applied. Furthermore, examiners will inspect initial job offerings for legitimacy and for sincere intent to accept such offers at the time of application filing.
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The USCIS takes a friendly stance on the "180-day clock" within the memorandum. The clock begins with filing of the I-485. Aliens should keep in mind that the 180-day clock is not the only requirement for approval; the alien must demonstrate sincere intent to work for the original employer.
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The I-140 will no longer be valid as a means of portability when it is:
- Withdrawn by the employer before the I-485 has been pending 180 days.
- Ultimately denied.
- Revoked after the I-485 has been pending for 180 days.
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Adjustment portability is still permitted even if visa numbers are not immediately available due to the retrogression of EB priority dates.
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Applicants' priority dates do not change as the result of "porting," the date remains the date of initial filing of the I-140 or labor certification, whichever comes first.
H-1B SEVENTH YEAR EXTENSIONS
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In regards to the timing of seventh-year extension requests on H-1B visas, the USCIS states that requests may be asked for without having approval first to reach the end of the original 6-year term. Any approval beyond a sixth-year may only be granted in one-year increments. Applicants need to have completed one-year labor certification or I-140 post-filing period before the requested start date on the extension period.
Requests for seventh-year extensions will be denied in the event that underlying labor certification or I-140 is denied; however, the I-140 is not considered denied until the alien's right to appeal has been exhausted.
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In regards to labor certification beneficiary substitution, only the most recently substituted into labor certification is eligible for extension.
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The supporting labor certification or I-140 need not be filed by the same employer filing for the H-1B extension.
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H-4 extensions are available for spouses and children of H-1B visa holders. Spouses using their own H-1B visas must independently apply for a seventh-year extension and independently meet the AC21 seventh-year requirements.
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If an alien's green card application is delayed by per country limitations, EB-1, EB-2, and EB-3 applicants may apply for an extension of their non-immigrant status. Extensions in this category may be granted in increments as long as three years, and aliens may apply for multiple extensions.
H-1B PORTABLITY RULES UNDER AC21
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Aliens may still "port" despite no longer having a valid I-94 or an expired approved petition assuming they are in a "period of stay authorized by the Attorney General" as required by §214(n). For example, Employer A timely files a non-frivolous extension of the alien's H-1B status. The original petition of the alien expires during the pendency of the extension. During the pending process, the alien is said to be in a "period of stay authorized by the Attorney General."
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Applicants who "port" from one employer to others can claim "portability" for successive jobs assuming each job meets the requirements for H-1B classification and the applicant is otherwise eligible for extension.
If, however, an applicant's H-1B status expires while H-1B transfer petitions are pending and one H-1B petition is denied, portability will no longer be available. For example, an alien under H-1B status is employed by employer A. He then transfers to employer B, and further to employer C. Since each transfer requires a new petition, the pendency allows for portability. However, should one of these petitions being used to create a "bridge" be denied, the "bridge" is broken, and portability is lost.
With the clarification of AC21 rules, the concept of "portability" is much more clearly defined by the USCIS. It is important to keep in mind that these rules set forth by William Yates are only temporary, and are subject to change in the near future.
(06/06/2005)
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