INS Clarification on Certain Employment Based Issues
Posted Apr 10, 2000

In teleconferences held on March 16 and 24, 2000 between representatives of the American Immigration Lawyers Association (AILA) and the Immigrant Services Division at INS Headquarters, the following issues were discussed:

a. Procedures required when a company moves after an I-140 is approved and the I-485 has been filed
 
INS confirmed that if a petitioning company moves outside the Metropolitan Statistical Area or the standard commuting distance, then the labor certification is no longer valid. In this case, the petitioner would need to file a new labor certification. 
 
[Editor's note of The Law Office of Sheela Murthy: This is true only if the job is in one specific location. Arguably, it would be different if precautions were taken at the time of filing the labor certification. See the article from the March 31, 2000 MurthyBulletin regarding "roving employees," for possible ways to prevent having to re-start the entire labor certification process.]
 
If the I-140 has been approved, the candidate would be able to recapture the original priority date when filing a second I-140 Petition, and that new I-140 approval can be substituted for purposes of the pending I-485 case. Therefore, if the original I-485 is pending at the Service Center, the candidate does not need to file a new I-485.
 
We are relieved that INS Headquarters has confirmed that a new I-140 approval can be substituted in a pending I-485 case. Previous editions of the MurthyBulletin indicated that certain INS Service Centers were accepting substitutions of the I-140 approval notices. Now it is a relief that the policy of allowing substitutions is an agency-wide policy and not merely subject to the discretion of certain INS Service Centers.
 
b. "Recapturing" Time Spent Abroad While on H-1
 
The Law Office of Sheela Murthy, P.C. has observed that INS Service Centers have not taken a consistent approach on the issue of "recapturing" time spent abroad while on H-1B status. Some Service Centers are stricter than others with regard to whether to allow extensions of H-1B status that would go beyond the 6-year limit, to "recapture" periods of time spent outside the U.S. We have observed that INS will generally not credit time spent on short trips, of less than one month at a time, outside the U.S. Now INS, in its teleconference with AILA, has given an indication that the purpose of the absence is the key factor here.

INS took a rather hard line position, which AILA representatives considered to be inconsistent with prior positions, that if the worker "maintains any relationship with the H-1B employer," then he or she will not be permitted to recapture time spent abroad. Time spent while on vacations outside the U.S. cannot be recaptured. On the other hand, time spent on medical leave may be recaptured, at the discretion of the Service Center Director, if the person was abroad for "a significant amount of time." As we at the Law Office of Sheela Murthy have often suggested, the INS has confirmed that the most persuasive evidence of time outside the U.S. includes airline tickets, hotel receipts, leases and rent receipts from renting a dwelling abroad, and payroll records from working abroad. 

AILA has indicated that they will revisit this issue with INS representatives to resolve any apparent inconsistencies and further clarify the above requirements.
 
c. Duration of Time Spent Abroad on Advance Parole

INS confirmed that a person who receives an advance parole may continue to remain outside of the U.S., up to the date the advance parole expires, as long as the person maintains his/her residence in the U.S.

The above clarifications from INS Headquarters on these three important issues will be helpful in strategizing for many companies and individuals who are likely to be or have been affected by these frequently occurring situations.