Stern Elkind Curray & Alterman News and Updates
Wednesday, August 13, 2008
New developments in the area of H-1B visas
Extensions beyond six years
USCIS has made it clear that if an individual is attempting to extend his/her H-1B status beyond six years based on the filing of a labor certification, the labor certification will expire unless an I-140 form is filed. Generally speaking, the filing of a labor certification prior to the expiration of five years of H-1B status will allow an individual to extend his/her H-1B status beyond six years. If the labor certification is approved, an I-140 must be filed within 180 days. If an I-140 is not filed during this time period, the labor certification can no longer be used to extend H-1B status.
If the H-1B beneficiary did not file a labor certification application prior to the end of the fifth year of H-1B status, an extension beyond six years can still be obtained if he or she has an approved I-140 and cannot file for adjustment of status due to a backlog in visa numbers. USCIS has announced that it will expedite I-140 applications under these circumstances.
On a related note, in order for a beneficiary to be eligible for I-485 portability, the underlying I-140 must be approved in addition to demonstrating that the adjustment of status application has been pending for more than six months.
Official termination
There has been a lot of activity in the area of what constitutes an official termination of an H1-B employee. At the annual AILA Conference in Vancouver, at a joint panel with USCIS and DOL, the statement was made that an official termination will not occur until the following four events occur:
- The employee is notified;
- USCIS is notified;
- The employer has made an offer to pay the beneficiary's transportation to his/her home country; and
- The LCA has been withdrawn.
The requirement of withdrawing the LCA is a new development which is not supported by regulation or case law. In fact, there have been a number of recent cases on this point which do not mention the necessity of withdrawing the LCA. These cases also support our position that return transportation does not need to be paid. Rather, an offer to pay such transportation must be made to the employee. Our practice has always been to inform the employee that if he or she is leaving the United States on a permanent basis and can document his or her transportation costs, the employer will reimburse the H-1B beneficiary for those expenses. Recent case law supports this practice.
Our firm has revamped the way in which we assist employers in terminating H-1B status in order to be in full compliance with these developments.
USCIS has made it clear that if an individual is attempting to extend his/her H-1B status beyond six years based on the filing of a labor certification, the labor certification will expire unless an I-140 form is filed. Generally speaking, the filing of a labor certification prior to the expiration of five years of H-1B status will allow an individual to extend his/her H-1B status beyond six years. If the labor certification is approved, an I-140 must be filed within 180 days. If an I-140 is not filed during this time period, the labor certification can no longer be used to extend H-1B status.
If the H-1B beneficiary did not file a labor certification application prior to the end of the fifth year of H-1B status, an extension beyond six years can still be obtained if he or she has an approved I-140 and cannot file for adjustment of status due to a backlog in visa numbers. USCIS has announced that it will expedite I-140 applications under these circumstances.
On a related note, in order for a beneficiary to be eligible for I-485 portability, the underlying I-140 must be approved in addition to demonstrating that the adjustment of status application has been pending for more than six months.
Official termination
There has been a lot of activity in the area of what constitutes an official termination of an H1-B employee. At the annual AILA Conference in Vancouver, at a joint panel with USCIS and DOL, the statement was made that an official termination will not occur until the following four events occur:
- The employee is notified;
- USCIS is notified;
- The employer has made an offer to pay the beneficiary's transportation to his/her home country; and
- The LCA has been withdrawn.
The requirement of withdrawing the LCA is a new development which is not supported by regulation or case law. In fact, there have been a number of recent cases on this point which do not mention the necessity of withdrawing the LCA. These cases also support our position that return transportation does not need to be paid. Rather, an offer to pay such transportation must be made to the employee. Our practice has always been to inform the employee that if he or she is leaving the United States on a permanent basis and can document his or her transportation costs, the employer will reimburse the H-1B beneficiary for those expenses. Recent case law supports this practice.
Our firm has revamped the way in which we assist employers in terminating H-1B status in order to be in full compliance with these developments.
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