Portability: Freedom of Movement for Foreign National Employees

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1 REPRINTED International Educator NASFA: Association of International Educators Jan/Feb 2007 Portability: Freedom of Movement for Foreign National Employees By H. Ronald Klasko 1 This article will explore the concept of H-1B and adjustment portability from the point of view of the hiring institution. First for H-1B and then for adjustment of status applicants, we will explore both the issue of who is portable and the institutional policy issues involved in choosing to or declining to employ a portable alien. H-1B Portability What is H-1B portability? H-1B is an employer-specific temporary professional worker visa status which allows a foreign national (such as a professor, researcher or systems analyst) to work only for the H-1B petitioning employer. If a new employer wishes to employ the H-1B, the new employer must file a new petition. Until 2000, the new employer could not commence employment of the H-1B until the petition was approved. However, in 2000 the concept of H-1B portability was introduced into law. Under this concept, the new employer can commence employment of the H-1B employee as soon as the new H-1B petition is filed, as long as the employee had previously been granted H-1B status with the same or any other employer. The foreign national can be employed under portability until a decision is made on the new H-1B petition. Assuming the new H-1B petition is approved, the employment can continue under the approved petition. If it is not approved, the employment must end. 1 H. Ronald Klasko is the Managing Partner of Klasko, Rulon, Stock & Seltzer, LLP, the only immigration law firm global partner of NAFSA. With offices in New York and Philadelphia, Ron and his firm were chosen by clients and peers as one of the top six immigration firms in the country and the strongest in the country in representing clients in the university research and medical sectors. He is a former National President of the American Immigration Lawyers Association and served for 3 years as the bar association s General Counsel. He has been Adjunct Professor of Immigration Law at Villanova University Law School and is a frequent lecturer on immigration law subjects. Mr. Klasko is selected annually for inclusion in Best Lawyers in America. Mr. Klasko is the recipient of the AILA Founders Award, bestowed upon the individual who has had the most positive impact on immigration law. He is a member of NAFSA and a frequent speaker at NAFSA conferences. His practice emphasizes representation of universities, hospitals and research institutions and their students, scholars, staff and employees.

2 Questions regarding H-1B portability? 1) Can a foreign national in a status other than H-1B take advantage of portability? The foreign national must either presently be in H-1B status or previously have been in H-1B status. For example, if an H-1B changed status to F-1 student and now wishes to change back to H-1B, she is portable. 2) Must the foreign national presently be in legal status to take advantage of portability? The short answer is no, but this is a complicated area. If the foreign national has engaged in unauthorized employment, he is not eligible for portability. However, if his approved status as indicated on Form I-797 or I-94 has not expired, he is portable even if he is out of status and even if the status cannot be extended. For example, if the previous employer obtained a three year approved H-1B status for a professor but the employment relationship ended after one year and the professor has been unemployed for the past six months, the professor is clearly out of status. Most likely, if a new university files an H-1B petition for the professor, the professor s status could not be extended; and he would have to leave the country to obtain a new H-1B visa. Nevertheless, the university could commence the professor s employment upon the filing of the H-1B petition until the date of the petition approval, since the professor is portable. The reason is that portability applies if he is in a period of stay authorized by the Attorney General. In this situation, the period of stay authorized by the Attorney General does not expire until the expiration of the previous H-1B approval notice. 3) Can a portable foreign national travel and return with portability? Yes, under some circumstances. She must have an unexpired H-1B travel visa in her passport. If she does, she can travel with that visa (even though issued based upon a petition from a different employer) and present the receipt notice for the H-1B petition filed by the new university at the port of entry. 4) Can an H-4 spouse port? Although there is a good legal argument that could be made that an H-4 spouse of an H-1B should be eligible to port, thus far the United States Citizenship and Immigration Services (USCIS) position is that an H-4 spouse cannot take advantage of portability, if he wishes to obtain his own H-1B working visa. 5) Can an H-1B port from a cap-exempt institution to a cap-subject employer? This issue comes up frequently with H-1Bs who have been employed only by a university or other institution that is exempt from the H-1B quota. If the employee now wishes to accept an offer of employment at a private employer subject to the H-1B cap, the start date of the H-1B approval notice of the new employer may not be for many months or a year or longer until H-1B numbers are available. Can the employee work for the new employer, at least until the new petition is approved? This is an area of some controversy. Although some attorneys believe that portability is not available in this circumstance, the author believes that portability does apply since all elements of the portability law are satisfied. USCIS has not rendered an opinion on this subject, which is not surprising since USCIS never actually adjudicates the issue of portability. Klasko, Rulon, Stock & Seltzer, LLP Page 2 of 5

3 Institutional Policy Issues Portability is an option, not a requirement. Universities may choose to avail themselves of the portability benefits, or may choose to follow the traditional path of awaiting an H-1B approval notice before commencing employment of the new employee. The following are issues on which universities may wish to have policy as opposed to dealing with the issue on an ad-hoc basis each time it occurs: Should universities commence employment using portability? There are good reasons to take advantage of portability. Unless the university wishes to pay $1000 for 15 day or less premium processing, normal processing time for an H-1B petition is approximately four months. Furthermore, processing times vary, so that the commencement date of employment remains uncertain until the H-1B petition is approved. With portability, there is no need to wait and no uncertainty regarding the commencement date of employment. In addition, all of these benefits accrue without the payment of the $1000 premium processing fee. Why would a university not avail itself of portability and await approval of the H-1B petition? The downside of portability is that universities commence employment of the portable employee without knowing for certain that the H-1B petition will ever be approved. If it is not approved, the employment would need to be terminated. In addition, USCIS has never amended its I-9 regulation to provide an acceptable document for the portable alien (although USCIS has stated that employers may use receipt notices for I-9 purposes). The author is often called upon to advise institutions regarding policy in this area. I generally suggest commencing employment under portability unless there is some realistic chance of denial of the H-1B petition. This is rare for university H-1B petitions and can usually be determined at the time of filing. Should premium processing be used as an alternative to portability? Paying the government an extra $1000 to get adjudication within fifteen days or less generally eliminates the need to take advantage of portability. It is certainly a reasonable policy decision for a university to decide to incur the added expense in order to know for certain that the H-1B petition is approved before commencing employment. This may be an across-the-board policy, or a case-by-case policy, depending on the date of need for the employee s services, the level of the position and other issues. If the university opts to use premium processing instead of portability, either on an individual case or on all H-1B cases, there is also the issue of who pays the $1000 fee. This again is a matter of institutional policy that is better determined in advance rather then dealt with separately and differently in each case. The author believes that it is perfectly appropriate for either the employer or the employee to pay the premium processing fee. When can portability commence? Portability commences upon the filing of the H-1B petition. Technically, this occurs when the petition is received by USCIS -- presumably the day after it is sent if an overnight courier service is used. Although an employer might wish to commence employment based upon a courier delivery receipt, the author generally advises that the more prudent practice is to await USCIS Klasko, Rulon, Stock & Seltzer, LLP Page 3 of 5

4 receipt notice. Such a receipt notice provides an official document to be placed in the file. The problem is that such receipt notices may be delayed by two, three or more weeks, which has the unfortunate result of delaying the commencement of employment even though employment could properly begin under the language of the law. Adjustment of Status Portability What is adjustment of status portability? The process of applying for permanent residence can be a lengthy one. A professor or a scholar may wish to seek new employment during this process. What are the issues for the professor or scholar, and what are the issues for the potential hiring institution? The answers depend upon whether the foreign national is employer-sponsored or self-sponsored. If self-sponsored (extraordinary ability or national interest waiver) or if the employee is obtaining permanent residence through marriage, immigration lottery or other non-employer sponsored methods, there are no issues The employee can change employment in the middle of the process without affecting the ultimate approval of permanent residence. However, if the foreign national is employer-sponsored (outstanding researcher or labor certification application), the issue of whether the employee can leave his existing employer and, if so, when, is critical to the ultimate success of his permanent residence application. Although originally unclear, the answer is now relatively straightforward. The alien can leave the sponsoring employer 180 days after the filing of the I-485 application for permanent residence as long as the I-140 employer immigrant petition has been approved. The only other stipulation is that the new position offered to the employee -- whether with the same institution or with another institution, whether in the same geographical area or a different geographical area, whether at the same salary or a different salary -- is in the same or similar occupation. If so, the change of employment will have no impact on the grant of permanent residence. What are the institutional policy issues regarding hiring a foreign national under adjustment portability? Employing a foreign national who meets the criteria for being adjustment portable does not entail much risk to the hiring institution. The biggest issue is whether to have her commence employment with the employment authorization document that she was likely able to obtain during the adjustment of status process, or whether the hiring institution wishes to insist upon filing an H-1B petition on her behalf. The risk of commencing employment with the employment authorization document is that the foreign national will have no status if the adjustment of status is eventually denied. Some of the issues are within the control of the hiring institution, and some are not. The hiring institution can certainly review the documentation of the permanent residence application to make certain that the I-140 is approved, that the I-485 has been pending 180 days and that the position offered is in a same or similar occupation. Same or similar occupation is not presently a defined term, but clearly the position offered does not have to be exactly the same as the sponsored position. For example, a professor who will be teaching different courses is still a professor and would be portable. A biochemistry researcher who is doing different research but still in the area of biochemistry remains portable. The only risk, then, is the possible denial of the Klasko, Rulon, Stock & Seltzer, LLP Page 4 of 5

5 adjustment of status for reasons outside of the knowledge or control of the hiring institution, such as criminal grounds, previous immigration violations, fraud or misrepresentation issues, or other grounds of inadmissibility. For these reasons, institutions may wish to have a policy insisting upon H-1B status for adjustment portable aliens with H-1B status. Even if the adjustment of status is ultimately denied, the foreign national continues to have a status that allows him to work for the new employer. This decision can be less than straightforward if he is not presently in H-1B status. In such a situation, most likely he would have to leave the United States upon approval of the H-1B petition and return with an H-1B visa. Depending upon his history, country of nationality, countries he has traveled to, and technology to which he has had access, he may be subject to lengthy delays overseas while waiting for a security clearance prior to visa issuance. This can make the H-1B option untenable or impractical. What if the university wishes to hire a foreign national who has commenced the permanent residence process but who is not yet portable? If possible, the best policy is to wait until the prospective employee becomes portable. If this is not possible, the university may need to commence a permanent residence application on behalf of the newly-hired employee promptly because the previous application would be of no benefit. If it is possible to wait until he becomes portable, that may be in the best interest of both the employee and the institution. One very recent development is the availability of premium processing for employer-sponsored I-140 immigrant petitions. If the I-485 has been pending for 180 days and there has been a delay in the approval of the I-140, this may be an option for the employee. Conclusion The addition of portability into the immigration law in 2000 greatly enhanced the ability of employing institutions to hire foreign nationals who are presently under the sponsorship of a different employer. However, the decisions on whether to utilize portability are not always clear cut. As with most areas of immigration, it is beneficial for universities and research institutions to develop institutional policies on the various issues raised by portability both for H-1B employees and for adjustment of status applicants. Klasko, Rulon, Stock & Seltzer, LLP Page 5 of 5