Dated: January 29,
2001
MEMORANDUM FOR
ALL REGIONAL DIRECTORS DEPUTY ASSOCIATE COMMISSIONER, IMMIGRATION SERVICES
DIRECTOR, OFFICER DEVELOPMENT TRAINING FACILITY, GLYNCO DIRECTOR, OFFICER
DEVELOPMENT TRAINING FACILITY, ARTESIA
FROM:
Michael A. Pearson Executive Associate Commissioner Office of Field Operations
SUBJECT:
Interim Guidance for Processing H-1B Applicants for Admission as Affected by
the American Competitiveness in the Twenty-first Century Act of 2000, Public
Law 106-313
On October 17, 2000, President Clinton signed into law the “American
Competitiveness in the Twenty-first Century Act of 2000 (AC21).” The new
law not only increases the H-1B Petitioner Fee and the numerical limitation on
H-1B visas, but also modifies the manner in which they will be processed.
All provisions in AC21, with the exception of a fee increase, were effective
upon enactment. This memorandum is being issued to provide interim guidance to
Ports-of-Entry (POEs) when processing H-1B applicants
for admission. While these guidelines were developed to clarify in the new
class=GramE>law that affect the Inspections Program, it is anticipated
that further guidance will be disseminated once the Immigration and
Naturalization Service (INS) regulations have been drafted.
Visa portability
Visa portability provisions in AC21 allow a nonimmigrant alien previously
issued an H-1B visa or otherwise accorded H-1B status to begin working for a
new H-1B employer as soon as the new employer files a “nonfrivolous”
H-1B petition for the alien.
A “nonfrivolous”
petition is one that is not without basis in law or fact. Forthcoming
regulations will further clarify this standard. Since portability provisions
apply to H-1B petitions filed “before, on, or after” the date of
enactment, all aliens who meet the requirements may benefit the provisions
effective immediately.
The portability provisions described in AC21
relieve the alien from the need to await approval notification from the INS
before commencing new H-1B employment. In order to be eligible for the visa
portability provisions:
(1) the alien must
have been lawfully admitted into the
style=’font-size:10pt;font-family:Arial;color:#003366′>United States
style=’font-size:10pt;font-family:Arial;color:#003366′>;
(2) an employer must
have filed a nonfrivolous petition for new employment
before the date of expiration of the period of stay authorized; and
(3) the alien must
not have accepted unauthorized employment subsequent to his/her admission and
before the filing of the new petition.
An H-1B applicant for admission who is no
longer working for the original petitioner is admissible at a POE, pursuant to
portability in AC21, as long as certain conditions listed below are met. If
these conditions are met, the H-1B applicant is admissible to the validity date
of the previous H-1B petition, plus ten days. H-4 applicants for admission, who
are dependants of H-1B aliens employed pursuant to visa portability provisions,
must meet these same requirements.
The applicant is otherwise admissible.
The applicant, unless exempt under 8 CFR
212.1, is in possession of a valid, unexpired passport and visa (including a
valid, unexpired visa endorsed with the name of the original petitioner).
The applicant establishes to the satisfaction
of the inspecting officer that he or she was previously admitted as an H-1B or
the otherwise accorded H-1B status. If a visa exempt applicant is not in
possession of the previously issued Form I-94, Arrival/Departure Record, or a
copy of the previously issued I-94, the applicant may present a copy of the
Form I-797, Notice of Action, with the original petition’s validity dates.
The applicant presents evidence that new
petition was filed timely with the
style=’font-size:10pt;font-family:Arial;color:#003366′>Service
style=’font-size:10pt;font-family:Arial;color:#003366′>
style=’font-size:10pt;font-family:Arial;color:#003366′>Center
style=’font-size:10pt;font-family:Arial;color:#003366′>, in the form of a
dated filing receipt, Form I-797, or other credible evidence of timely filing
that is validated through a CLAIMS query. In order to be a timely filing, the
petition must have been filed prior to the expiration of the H-1B”s
previous period of admission. It must be emphasized that the burden of proof
remains with the alien to prove that he or she is admissible as an H-1B and
eligible for a visa portability provisions described in AC21.
No evidence of an I-129, Petition for
Nonimmigrant Worker, filed by the current employer. If the H-1B applicant has
changed employers, but is not in possession of Form I-797 and query of CLAIMS
shows no evidence that a new petition has been filed, the applicant is not
admissible in H-1B status and should be processed accordingly. Generally, an
alien who lacks evidence of a pending petition should not be processed as an
expedited removal, unless there is evidence of fraud or misrepresentation.
The original petition has expired.
If the original petition has expired, the
applicant is not admissible in H-1B status, unless the applicant presents
evidence that a new petition has been approved. Generally, an alien whose
petition has expired should not be processed as an expedited removal, unless
there is evidence fraud or misrepresentation.
Extensions of stay
The AC21 provides for the extension of H-1B
status in cases where an alien”s immigrant visa
petition or adjustment of status application is pending due to the per country
limitation on visas or to a lengthy adjudication process[1].
Therefore, it is possible that an H-1B alien may exhaust the 6-year limit of
stay[2] defined in Section 214(g)(4) of the Immigration and Nationality Act,
yet remain in status due to the extension of stay provisions described in AC21.
As long as an alien in these circumstances remains in status with extension(s),
the alien would not accrue unlawful presence.
NOTE: In accordance with previously issued policy
relating to dual intent, if the H-1B applicant has an immigrant visa petition
pending, and has otherwise remained in status, he or she may be readmitted into
the United States
style=’font-size:10pt;font-family:Arial;color:#003366′> in H-1B status,
provided he or she is reentering within the authorized period of stay. An H-1B
alien who has an adjustment of status application pending is not required to
present an I-512, Advance Parole Authorization, after travel outside of the
style=’font-size:10pt;font-family:Arial;color:#003366′>United States
style=’font-size:10pt;font-family:Arial;color:#003366′>. For further
clarification regarding dual intent, refer to
Day=”14″ Month=”3″>March
14, 2000, policy memorandum subject AFM Update: Dual Intent Follow-up
Guidance: H-1 and L-1; Pending Applicants for Adjustment of Status, validity of
non-immigrant status, and the elimination of the advance parole requirement.
Questions regarding this memorandum may be
directed to either Assistant Chief Inspector Maureen Dugan at 202-305-9242 or
Beverly Matthews at 202-305-9245.
[1] The AC21 defines lengthy as more than 365
days since the filing of a labor certification or petition on the
class=SpellE>alien”s behalf.
[2] Petitions for Department of Defense
projects may be extended to 10 years.