Laid Off H-1B Can Change Employer After 60 Days

The I-140 Final Rule updates, improves, and clarifies DHS regulations consistent with policy guidance. The I-140 Final Rule provides that a nonimmigrant visa holder (H, E, L, O, TN) is not considered out of nonimmigrant status solely on the basis that the employment on which the classification was based has ceased, for up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter.

The I-140 Final Rule does not replace the AC21 Employment Portability Memo

The final rule addresses the ability of H-1B nonimmigrant workers to change jobs or employers, including:

(1) Beginning employment with new H-1B employers upon the filing of non-frivolous petitions for new H-1B employment, “H-1B portability petition”, and

(2) Allowing H-1B employers to file successive H-1B portability, “bridge”, petitions and clarifying how these petitions affect a beneficiary’s lawful status and work authorization.

The I-140 Final Rule provides USCIS discretion to extend H-1B status 60 days. This supplements the AC21 H-1B portability rule that an H-1B employee need not be in status, merely in a period of authorized stay as represented by their I-94 validity, for the filing of an H-1B change of employer petition. Further, upon USCIS receipt of an H-1B change of employer petition the employee may begin work with the sponsoring H-1B employer.

The AC21 Portability Memo provides that a nonimmigrant who has been previously issued an H-1B visa or provided H-1B nonimmigrant status may begin working for a new H-1B employer as soon as that new employer files a non-frivolous H-1B petition on the nonimmigrant’s behalf if:

(1) The nonimmigrant was lawfully admitted to the United States;

(2) The non-frivolous petition for new employment was filed before the end of their period of authorized stay; and

(3) The nonimmigrant has not been employed without authorization since his or her lawful admission to the United States, and before the filing of the non-frivolous petition.

Additionally, an alien must meet all the requirements of INA § 214(n), including the requirement that the new petition must be filed while the alien is in a period authorized of stay.”

Multiple H-1B portability petitions may be filed for an alien while the previous H-1B petitions remain pending (i.e. creating a “bridge” of H-1B petitions). However, to be approved every H-1B portability petition must separately meet the requirements for H-1B classification and for an extension of stay to be approved. The expiration of the alien’s nonimmigrant status while the petitions are pending, a denial of any filing in the string of extensions of stay, and/or change of status filings undercuts the “bridge.” This means that any petition to extend or change status that was filed after the expiration of the alien’s status that is denied will result in the denial of all successive requests to extend or change status. However, note the beneficiary of a petition within the validity of their I-94 period of authorized stay need not be in status for the filing of change of employer petition and may not require a bridge.

The I-140 Final Rule does not replace the AC21 Unlawful Presence Memo

The INA makes inadmissible any alien who “was unlawfully present in the United States for a period of more than 180 days but less than 1 year . . . again seeks admission within 3 years of the date of such alien’s departure or removal.” Likewise, any alien who “has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s removal or departure” is inadmissible.

The I-140 Final Rule clarifies the Unlawful Presence Memo. The Unlawful Presence Memo clarifies that status and period of authorized stay are different. The Unlawful Presence Memo provides a person admitted to the U.S. does not accrue unlawful presence until the end of their validity period because nonimmigrants admitted until a specific date will generally begin to accrue unlawful presence the day following the date the authorized period of admission expires, as noted on Form I-94.

Employment authorization based on the pending petition continues until adjudication. If USCIS determines that the individual has violated her nonimmigrant status during adjudication, unlawful presence will begin to accrue the day after USCIS denies the benefit, or the day after the I-94 expires, whichever is earlier. If an Immigration Judge makes a determination of status violation, then ULP begins to accrue the day after the I-94 expires, or the day after the order becomes final, whichever is earlier. Thus, one not in status, but within the validity of their I-94 is within their period of authorized stay and the 3 and 10 year unlawful presence bars will not occur until the I-94 expires.

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8 C.F.R § 214.1(L)(2)

https://www.federalregister.gov/d/2016-27540/p-204

See Memorandum from Donald Neufeld, Acting Associate Director, Domestic Operations Directorate, USCIS, HQDOMO 70/6.2, Supplemental Guidance Relating to Processing Forms I-140 Employment-Based Immigrant Petitions and I-129 H-1B Petitions, and Form I-485 Adjustment Applications. (AFM Update AD 08-06) (August 31, 2017), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2008/ac21_30may08.pdf

INA § 212(a)(9)(B)(i)(I)

INA § 212(a)(9)(B)(i)(II)

https://www.federalregister.gov/d/2016-27540/p-297

See Memorandum from Donald Neufeld, Acting Associate Director, Domestic Operations Directorate, Lori Scialabba, Associate Director, Refugee, Asylum and international Operations Directorate, Pearl Chang, Acting Chief, Office of Policy and Strategy, USCIS, HQDOMO 70/21.1, Conso
lidation of Guidance Concerning Unlawful Presence for Purposes of Section 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act, Revision to and Re-designation of Adjudicator’s Field Manual (AFM) Chapter 30.1(d) as Chapter 40.9 (AFM Update AD 08-03) (August 31, 2017), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF

See INA 214(n)(1), 8 U.S.C. 1184(n)(1)

See Memorandum from Donald Neufeld, Acting Associate Director, Domestic Operations Directorate, Lori Scialabba, Associate Director, Refugee, Asylum and international Operations Directorate, Pearl Chang, Acting Chief, Office of Policy and Strategy, USCIS, HQDOMO 70/21.1, Consolidation of Guidance Concerning Unlawful Presence for Purposes of Section 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act, Revision to and Re-designation of Adjudicator’s Field Manual (AFM) Chapter 30.1(d) as Chapter 40.9 (AFM Update AD 08-03) (August 31, 2017), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF