INS Finally Issues its Initial Guidance on AC21 in June 2001
Posted Jun 25, 2001
As we had accurately predicted in the MurthyChat of June 18, 2001, the Immigration and Naturalization Service (INS) issued its initial guidance on AC21, right before the American Immigration Lawyers Association (AILA) Annual Conference in Boston in June 2001! Issued on June 19, 2001, the initial INS guidance (June 2001 INS Guidance) summarizes and interprets the American Competitiveness in the 21st Century Act (AC21) and other laws passed at about that time pertaining to the requirement that no H1B amendment needs to be filed in cases of certain corporate restructurings and the H1B fee increase.
Although the June 2001 INS Guidance summarizes various relevant provisions of the AC21 law, which have been outlined in several MurthyBulletin articles from October 2000 onwards, it also touches upon some important issues many of us were anxiously awaiting. Michael Pearson, the Executive Associate Commissioner, Office of Field Operations for the INS, sent the Memorandum to all Service Center Directors, by attaching a Memo from Michael Cronin, Acting Executive Associate Commissioner, Office of Programs. Apparently, Mr. Efren Hernandez, Director, Business & Trade Services, INS, was the initial author of this Memorandum and was present to explain the INS position at various panels at the June 2001 AILA Annual Conference.
Following points in the June 2001 INS Guidance are noteworthy :
1. H1B Extensions When PD Not Current
Section 104(c) of AC21 allows for a one-time H1B extension where the priority dates are not current. The June 2001 INS Guidance now allows the H1B extension in such cases to be in increments of three years at a time. In various liaison meeting between AILA and INS, AILA had suggested a D/S or Duration of Status for the H1B employee who is waiting for the priority dates to become current. The June 2001 INS Guidance provides interim relief by allowing the H1 to be valid for up to three years.
Although this issue may not appear relevant at the present time with most employment-based priority dates current from July 1, 2001, the U.S. Department of State believes that there is a likelihood the priority dates will retrogress even further in a year or two - once all backlogged immigrant visa numbers available under the AC21 law have been exhausted.
2. H4 Dependents Enjoy AC21 Benefits
The June 2001 INS Guidance also advises dependents of H1B non-immigrants eligible for H4 status to file the Form I-539 concurrently with the H1B petition filed on behalf of the principal non-immigrant, whenever possible, to avoid falling out of status and to enjoy the benefit of the H1B extension. This addresses a second important concern of AILA because INS had apparently mentioned initially a possible interpretation that H4 dependents were not covered under the seventh-year-and-beyond H1B extensions, since the law only refers to the H1B primary holder's ability to enjoy that benefit under the law.
3. INS Can Use Discretion on AC21 H1B Cases
The June 2001 INS Guidance also explains the terms and conditions permitting a person under Section 105 of AC21 to start working for a new employer upon filing the new "non-frivolous" H1B petition. The Memo points out two sections in the Code of Federal Regulations: 8 C.F.R. Section 214.1(c)(4) and 8 C.F.R. Section 248.1(b), which permit the exercise of discretion by the INS, in circumstances where a non-immigrant fails to timely file a request for an extension of stay or for a change of status.
4. Scope of H1B Portability Benefits Under AC21
The scope of the H1B portability provisions under Section 105 of AC21 were also addressed in the June 2001 INS Guidance. This issue was hotly debated in various liaison meetings between INS and AILA.
The key issue was whether a person has to be on H1B status at the time of filing the new H1B petition or if the person, who was previously on H1B status with a prior employer, would still be entitled to the benefit of H1B portability. INS originally maintained the position that a person needs to be in valid, legal status on H1B in order to enjoy the benefit of being able to start work with a new employer upon filing a new H1B petition, otherwise referred to as the "portability benefits" under AC21. In the June 2001 INS Guidance, the INS acknowledged that the U.S. Congress appeared to have extended portability benefits not merely to those who are working lawfully in H1B status at the time a new employer files a new H1B petition on behalf of a non-immigrant. On the other hand, the June 2001 INS Guidance points out that Congress could not have extended portability benefits to any non-immigrant who ever held H1B status regardless of how many years ago or what the person's present status is in the U.S. Accordingly, the June 2001 INS Guidance proposes that approximately sixty (60) days after leaving the initial H1B employer would probably be a reasonable period of time for a person to enjoy portability benefits, to allow the non-immigrant to start working for the new H1B employer. However, this provision in the June 2001 INS Guidance clearly mentions that it is a prospective statement of policy, provided solely for information and should not be used as a standard for adjudication in cases involving portability issues, until and unless there is a promulgation of a final rule with the appropriate interpretation.
During the AILA Annual Conference this past week (June 2001), AILA attorneys recommended that the INS consider a much longer period - possibly three months or six months - within which a person should be considered to enjoy the H1B portability benefits under Section 105 of AC21. INS has stated it will consider our requests in this regard. We at the Law Office of Sheela Murthy, believe that the law itself does not contain any limitations whatsoever, and conceding a limit of 3 months or 6 months will not benefit our clients.
5. Scope of Green Card Portability Provisions Under AC21
The June 2001 INS Guidance summarizes that Section 106(c) of AC21 provides that both the labor certification and the approved Form I-140 to continue to remain valid where the person changes jobs, if the following two conditions are met:
(a) Form I-485 or the application to adjust status, on the basis of the employment-based (EB) immigrant petition has been filed and remains unadjudicated for over 180 days or longer; and
(b) The new job offer is in the same or similar occupational classification as the job for which the certification or approval was initially made.
The June 2001 INS Guidance requires that the I-485 applicant notify the INS when s/he no longer intends to enter into employment with the sponsoring employer. The June 2001 INS Guidance explains that if the INS has reason to believe that the applicant's intent has changed, a Request for Evidence (RFE) may be issued to clarify the applicant's intent with regard to employment.
The June 2001 INS Guidance explains that the I-485 applicant requires a letter from the new employer verifying the new job offer and providing the following details: the new job title, job description, and salary. Although AC21 does not contain any restrictions on salary, the INS clarifies that this information on salary is necessary in order to determine whether the I-485 applicant is admissible under the public charge provisions. A person who fails to meet the public charge provisions could be inadmissible under law. The June 2001 INS Guidance also refers to the U.S. Department of Labor's Dictionary of Occupational Titles (DOT) or on-line O*NET Classification System or similar publications. Again, AILA recommended that the INS broaden its definition of same or similar job title and not make it very narrow and restrictive by requiring that the new employer's job match the DOT or similar publications, since AC21 does not appear to require such a narrow interpretation.
Since the June 2001 INS Guidance explains that the INS is currently formulating proposed regulations with respect to the issue of the same or similar job, INS adjudicators, in order to establish a policy framework in which they adjudicate Section 106(c) benefits, are required to consult with INS Headquarters on a case by case basis before denying any case on the basis that the new job is not in the same or similar classification. We at the Law Office of Sheela Murthy believe that this is a good starting place for the INS, since INS adjudicators cannot deny the adjustment application for a person without consulting with the INS Headquarters.
6. Assumption of Immigration Liabilities Qualifies as Successor
The June 2001 INS Guidance also points out the provision under the Visa Waiver Permanent Extension Act of 2000 by explaining that an H1B amendment is no longer required when there is a merger, acquisition, consolidation or some similar form of corporate restructuring. At the June 2001 AILA Conference, senior INS officials explained that a successor entity would be considered a successor-in-interest for immigration law purposes (if the new entity agrees to assume all the liabilities and obligations with respect to immigration matters) of the prior entity. The June 2001 INS Guidance also explains that the INS will not automatically issue amended approval notices bearing the name of the new company merely if the new entity requests a new approval notice. Although not required under law, if the new entity wishes to obtain an approval notice for the beneficiary with the new entity's name, then an entirely new H1B petition has to be filed with the filing fee, though the law does not require such an amended petition. The INS rationale is that some employers may prefer to obtain a new approval notice, particularly if their employees have to travel abroad for work or family reasons, which is almost in each and every case of every big company!
Summary of June 2001 INS Guidance and its Legal Effect
Although June 2001 INS Guidance does not have the full force and effect of regulations under law, as a matter of practical application, it is very powerful because INS field officers, the INS Service Center officers, and all INS personnel, around the country, including adjudicators, will be required to conform to INS policy on all issues addressed. We now expect that those INS Service Centers which have not been processing H1B 7th-year extensions and other provisions of the AC21, including I-485 approvals based on the I-485 pending in excess of 180 days, will now have to process all such cases, within the guidelines and framework established by the INS and outlined in this article of the MurthyBulletin. © The Law Office of Sheela Murthy, P.C.
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