"Dormant" H-1 Petitions Remain Valid
Posted May 03, 2002

From time to time, The Law Office of Sheela Murthy, P.C. makes written inquiries to the INS for opinion letters on matters of law and policy that require clarification. We find that the responses obtained through this procedure are of enormous assistance to us as immigration law practitioners and, of course, to our clients and readers of the MurthyBulletin and MurthyDotCom. We report on those items that we consider helpful and useful to our readers.

In light of the many layoffs of H1B workers, The Law Office of Sheela Murthy has received a large number of inquiries regarding the ability of a laid-off H1B worker to maintain status through returning to, or accepting for the first time, employment under a previously-approved H1B petition with a different employer. A number of years ago, the INS had indicated that the person would be able to maintain status in this manner. In the interim, however, the Department of Labor (DOL) issued regulations and interpretations requiring the employer to pay back-wages in this scenario. We submitted a series of questions regarding whether the DOL policy had any impact on the INS interpretation in these cases.

On April 29, 2002, we received the INS Opinion letter responding to our inquiry from Efren Hernandez, III, Director, Business and Trade Services Branch of INS. We are glad to say that Mr. Hernandez stated, on behalf of the INS, that the DOL changes do not affect the INS position as to H1Bs' maintenance of status in these situations.

H1B Petition with Company A Valid - Even if Temporarily Changing to Company B

While there are a number of variations on this theme, there are two basic scenarios. In the first, the H1B worker has a job with Company A. S/He works for Company A for some time and obtains new employment based on an H1B for Company B. For whatever reason, the employment at Company B does not work out and the worker seeks to return to Company A and work under the initial H1B petition, which is still valid and not revoked.

The INS opinion, as stated by Mr. Hernandez, is that the H1B petitions remain valid until they expire or are revoked. Therefore, for as long as the petitions are valid, the worker can transfer between the two employers without re-filing. The worker is considered in status during the transfers. The DOL, in this situation, is of the opinion that Company A is responsible for wages continuously, unless the petition is revoked. Therefore, if they rehire, they are supposed to pay back-wages for the time that the worker was with Company B. This is strictly a DOL matter, which is completely separate from the issue of maintaining one's status for INS purposes.

H1B Petition with Company Valid if Beneficiary Works with Another Employer

The same result holds in a second scenario. The worker is the beneficiary of two petitions, one from Company A, the other from Company B. The worker does not take up the job with Company A, working only for Company B. After a time the worker wants to work for Company A under its valid, unexpired petition. This too would be allowed and the person is regarded as having maintained his/her immigration status.

Prior H1B May Not Be Valid if Beneficiary Not Maintaining Status

The response is different if the worker was unemployed before the transfer. The H1B worker is not maintaining status if s/he is not working. This holds true even if the person has valid H1B petitions from one or more companies. Therefore, if a person is the beneficiary of H1B petitions from companies A and B and works only for one of them, then loses his job and is unemployed for a time, he cannot be regarded as in status if he thereafter begins working for the other company.

We thank INS for these clarifications. We hope to share this useful information with other attorneys by sending it to AILA and other leading immigration law publications.