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Registered Users (C)
As many of our MurthyBulletin readers are aware, Section 105 of the October 2000 law known as AC21 or ACTA allows a person who has previously been approved for H1B and for whom a new employer has filed for an H1B, to begin work for the new employer upon filing the petition. Prior to the enactment of this "portability" rule, it was not possible to work for the new employer until the H1B petition was approved.
One concern of persons who are utilizing the H1B portability provision is what to do when traveling. The INS Inspector at the port of entry often asks where the person is working. For an H1B professional who is working at a new company while the H1B is pending, the fear is that the Inspector may not be aware of the change in the law and may not allow her/him to enter, on the grounds that s/he is not working for the employer who holds the H1B approval.
INS Headquarters did indicate a few months back that guidance would be provided to Inspectors so that they would know how to handle this situation. On January 29, 2001 INS issued a memo for that purpose. Please note that the memo explains only what to do when a person travels while the new employer\'s H1B petition is pending. It does not state INS\'s opinion on who can qualify for portability. Further information on portability criteria will be forthcoming in regulations. At this time, there is no news on when those regulations will be issued.
Requirements for Admission to U.S.
Persons who have changed jobs under the portability provision will be admitted based upon the latest H1B approval, provided they:
a) are "otherwise admissible," meaning they are not subject to grounds of inadmissibility such as fraud, certain criminal convictions, etc.;
b) have a passport and un-expired H1B visa (except for visa-exempt persons, such as Canadians);
c) can prove prior admission as an H1B or that they previously held H1 status, by showing a document such as prior I-94 card or approval notice;
d) can prove that a timely petition was filed by the new employer, by showing a receipt or other evidence of filing. If other evidence is used, then the Inspector needs to check the INS database to verify that the petition was filed.
What if the Prior H1B has Expired?
The guidance on this point as to what happens if the prior H1B has expired is at odds with the law. The memo states that if the prior H1B has expired, a new petition approval is required to admit the person as an H1B. If the new employer\'s petition is still pending, then the person cannot be admitted in H1B status. Yet, as the regulations and other INS memoranda seem to make clear, a person is considered to be maintaining lawful status while a timely petition through another employer is pending, even if the original petition expires while awaiting the INS decision on the newer petition.
In view of the above instructions, a person whose H1B petition through the new employer is still pending should not travel after the prior petition\'s expiration date, even though the petition was filed on time. It is clear that the person is allowed to remain in the U.S. and continue working while the petition is pending, but travel may now be a problem.
Extensions Beyond Six Years Under AC21
The memo helpfully points out that it is possible that a person be lawfully maintaining H1B status even after the 6-year limit on stay, due to provisions of AC21 that allow for H1B extensions in certain situations while the Green Card is in process.
Persons with I-485 Pending
The memo concludes with a reminder that a person with a pending I-485 Application for Adjustment of Status is allowed to travel on a valid H1B, rather than using an Advance Parole Document.
http://www.murthy.com/UDinsins.html
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One concern of persons who are utilizing the H1B portability provision is what to do when traveling. The INS Inspector at the port of entry often asks where the person is working. For an H1B professional who is working at a new company while the H1B is pending, the fear is that the Inspector may not be aware of the change in the law and may not allow her/him to enter, on the grounds that s/he is not working for the employer who holds the H1B approval.
INS Headquarters did indicate a few months back that guidance would be provided to Inspectors so that they would know how to handle this situation. On January 29, 2001 INS issued a memo for that purpose. Please note that the memo explains only what to do when a person travels while the new employer\'s H1B petition is pending. It does not state INS\'s opinion on who can qualify for portability. Further information on portability criteria will be forthcoming in regulations. At this time, there is no news on when those regulations will be issued.
Requirements for Admission to U.S.
Persons who have changed jobs under the portability provision will be admitted based upon the latest H1B approval, provided they:
a) are "otherwise admissible," meaning they are not subject to grounds of inadmissibility such as fraud, certain criminal convictions, etc.;
b) have a passport and un-expired H1B visa (except for visa-exempt persons, such as Canadians);
c) can prove prior admission as an H1B or that they previously held H1 status, by showing a document such as prior I-94 card or approval notice;
d) can prove that a timely petition was filed by the new employer, by showing a receipt or other evidence of filing. If other evidence is used, then the Inspector needs to check the INS database to verify that the petition was filed.
What if the Prior H1B has Expired?
The guidance on this point as to what happens if the prior H1B has expired is at odds with the law. The memo states that if the prior H1B has expired, a new petition approval is required to admit the person as an H1B. If the new employer\'s petition is still pending, then the person cannot be admitted in H1B status. Yet, as the regulations and other INS memoranda seem to make clear, a person is considered to be maintaining lawful status while a timely petition through another employer is pending, even if the original petition expires while awaiting the INS decision on the newer petition.
In view of the above instructions, a person whose H1B petition through the new employer is still pending should not travel after the prior petition\'s expiration date, even though the petition was filed on time. It is clear that the person is allowed to remain in the U.S. and continue working while the petition is pending, but travel may now be a problem.
Extensions Beyond Six Years Under AC21
The memo helpfully points out that it is possible that a person be lawfully maintaining H1B status even after the 6-year limit on stay, due to provisions of AC21 that allow for H1B extensions in certain situations while the Green Card is in process.
Persons with I-485 Pending
The memo concludes with a reminder that a person with a pending I-485 Application for Adjustment of Status is allowed to travel on a valid H1B, rather than using an Advance Parole Document.
http://www.murthy.com/UDinsins.html
ba151