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Here are the comments of Senator Brownback ( CHAIR of immigration sub-committee ) about DOLs regulations on H1B portability. After reading this I dont see how INS CAN NOT implement the portability clauses of AC21 as provided by the law.
The full comments are available at shusterman.com
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Use of H-1B Portability without a Certified LCA
Section 105 of the American Competitiveness in the Twenty-First Century Act (Pub. L. 106-313), enacted in October 2000, allows "persons previously issued a visa or otherwise provided H-1B status to accept new employment upon the filing of a new petition by a new employer, subject to the final approval of the petition." This section, which has become known as "portability," evinced a clear Congressional mandate that certain foreign nationals may immediately begin work for an H-1B petitioning employer upon the petitioner\'s filing the H-1B, rather than waiting for the agency processing to be completed.
The regulation appears to attempt to defeat the intent of this provision by apparently requiring that the labor condition application, which the Department has been unable to certify in a timely manner, be certified before such "portability" can take place. This is ironic, since the Department of Labor in the past claimed that it opposed H-1B visas because H-1B visa holders could not change jobs as quickly as the Department would like. By now making it more difficult to change jobs colors the Department\'s previous stated opposition to H-1B visas as, at minimum, lacking sincerity.
On January 1, 2001, Senator Abraham, wrote the following to Mary Ann Wyrsch, then the Acting Commissioner of the Immigration and Naturalization Service:
On the H-1B portability provision, the Senate Judiciary Committee report for S.2045 states that, "This section allows an H-1B visa holder to change employers at the time a new employer files the initial paperwork, rather than having to wait for the new H-1B application to be approved. This responds to concerns raised about the potential exploitation of H-1B visa holders as a result of a specific employer\'s control over the employee\'s legal status...it would frustrate the purpose of the portability provision for INS to require a labor condition application (LCA) be approved. I am aware that DOL, in its recently published regulations, appears to require approval of an LCA as condition for portability. That is a clearly inappropriate interpretation of the law and, in any event, it is INS, not DOL, which is required to interpret the portability provision. It is common and accepted practice to file H-1B petitions prior to approval of the LCA when DOL is not certifying cases in a timely manner because of a technological failure or other reasons. It is the signature and dispatch of the LCA by the employer to DOL that constitutes the making by the employer of certain attestations or promises concerning wages and working conditions.
To the extent that section 655.705(c)(4) of the regulation, relating to the portability issue, has any legal effect whatsoever, it should be deleted.
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