USCIS Makes it Easier for H-1B’s to Stay in the U.S.

USCIS Makes it Easier for H-1B’s to Stay in the U.S.
by Ken C. Gauvey

One of the biggest criticisms of the U.S. immigration policy has been the inability to bring educated and skilled workers into the U.S. This issue has been so contentious that Microsoft actually moved some of its facilities to Canada in order to bring in the engineers they needed from outside of the U.S. While members of Congress are attempting to address this problem by raising the yearly allotment of H-1B’s, this issue has been addressed by Congress before. The American Competitiveness in the Twenty-First Century Act of 2000(AC21) was passed, in part, to give some greater amount of flexibility to employers who wish to keep their H-1B employees after the H-1B expires.

An H-1B is a temporary visa that allows an employer to bring in a foreign worker for no more than two consecutive three year periods, for a total of six years. Before AC21, at the expiration of those six years, the employee had to return home for at least a year before returning to the U.S. An employer who wanted to keep that employee could file a petition to obtain lawful permanent resident status (LPR) for the employee, which is euphemistically called “green card status.” This adjustment of status application can take years. However, if the LPR application was not approved before the six year period ended the employee had to return home and wait. In the meantime, the employer had to fill that position, resulting in the employer’s inability to hire back the foreign national and the abandonment of the LPR petition.

To adjust status, an employer must first file an Immigrant Petition for Alien Worker, an I-140. This is a petition for an employment visa, which is provided by the Department of State. The backlog for visas can result in a visa approval, but a delay in the visa becoming current. Once the visa is approved, the employer can file an Application to Adjust Status, I-485, however, this I-485 will not be processed until the visa is current (This is a gross generalization but is to demonstrate a point). This process can take a long time. For example, the USCIS website states that USCIS is currently reviewing I-140’s submitted before April 1, 2006. The July 2008, Department of State Visa Bulletin states that in July, visas approved for Chinese foreign nationals before April 1, 2004, will be considered current. The USCIS website states that they are now reviewing applications to adjust status filed before July 24, 2006. By these numbers, a Chinese H-1B who files today, would have to wait more than two years for an approval of the I-140, four years before his I-140 was current and then an additional two years for his I-485 to be approved.

AC21 made several changes in the immigration laws. Among these changes was a provision that allowed employees in the U.S. to extend their H-1B status if they had a pending LPR application that had been pending for more than a year. This means that an H-1B employee could now remain in the U.S. and continue working for their employer while their adjustment of status application is pending. AC21, however, achieved this in two ways.

Section 106(a) of AC21 requires that USCIS to grant an H-1B extension in one year increments if the employer filed a labor certification with the Department of Labor, the first step in filing the I-140, or the I-140 was filed at least 365 days prior to the exhaustion of the employee’s H-1B status. Section 104(c) of AC21 requires USCIS to grant an H-1B extension in up to three year increments if the H-1B employee has an approved I-140, but, because of the per country limitations, the I-140 is not current.

Clearly, a better option for an employer is to have the approved I-140 and request the three year extension of the employee’s H-1B. Otherwise, by the time USCIS grants the extension under §106 each year, the employer will have to file another application for the next year in time for it to be approved so that the employee does not lose their H-1B status.

On June 11, 2008, USCIS announced that it would be accepting applications for premium processing for I-140’s. This means that for an extra $1,000, USCIS will review the I-140 within 15 days. To be eligible, the I-140 must be filed on behalf of an H-1B who’s status will be expiring within 60 days and who has not had a labor certification or I-140 filed within 365 days of the H-1B expiring. By getting this I-140 approved before the expiration of the employee’s H-1B, the employee becomes eligible for §104(c)’s three year extensions.

While it is always preferable to start the adjustment of status process well before 365 days prior to the H-1B expiring, there are now options for employees to remain in the U.S. while their I-140 is pending if the proper paperwork was not filed in that time frame. If you have any questions on how the H-1B program works or employment based adjustment of status, please contact Kollman & Saucier,P.A.

Kollman & Saucier, P.A., The Business Law Building, 1823 York Road, Timonium, MD 21093 Phone: 410-727-4300
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USCIS Makes it Easier for H-1B’s to Stay in the U.S.by Ken C. Gauvey

USCIS Makes it Easier for H-1B’s to Stay in the U.S.
by Ken C. Gauvey