Recent H-1B Developments
Date Posted: 5/2/2007 2:08:26 PM
CIS has promulgated several memos over the past couple of years that are significant to the H-1B category and provide some very important interpretive guidance. A quick review of some of the more significant memos in this area of immigration law is briefly surmised below.
A memo dated December 5, 2006, from Michael Aytes, ASDC, clarified that time spent in H-4 status does not count against the 6-year limitation on stay in the United States, and that individuals can seek extensions beyond the 6-year minimum if qualified to do so, in some circumstance allowed by AC21, even if the alien is not currently in H-1B status. For example, an alien is entitled to a seventh year in H-1B status if the labor certification filed on his/her behalf is more than a year old. Even if that individual has used up their 6-years in H-1B status and currently hold F-2 status, that individual can apply for the 7th year H-1B extension.
A memo dated June 6, 2006, from Michael Aytes, ASDC, discusses the exemptions from the H-1B numerical cap often used by universities and research institutions, and explains that some third party petitioners qualify for the exemption if the alien is employed at a qualifying institution by a third-party employer if such employment furthers the essential purpose of the qualifying institution.
A memo dated May 2, 2006, from Michael Aytes, ASDC, discusses the H-1B cap allotment of 20,000 visas for individuals with master’s or higher degrees from US institution of higher education. It warns that the master’s degree must be one where there is required an underlying bachelor’s degree. The doctor of chiropractic medicine is specifically given as an example of a nonqualifying category.
A memo dated December 27, 2005, from Michael Aytes, ASDC, discusses some practical aspects of seeking a seventh year in H-1B status, such as when such application can be filed. It also discusses the circumstance when an alien can seek a three year extension beyond the 6-year limit.
A memo dated October 21, 2005, from Michael Aytes, ASDC, clarified that any days spent outside of the United States during the validity period of an H-1B petition will not be counted toward the six year maximum period of stay in the United States, provided that the alien is able to submit documentary evidence establishing periods spent outside the US borders.
An opinion letter by Efren Hernandez, Chief, Business and Trade Services Branch, dated July 16, 2004, indicates that there is not an abandonment of an application for change of nonimmigrant status from F-1 to H-1B even though the alien travels outside the USA so long as the H-1B petition is approved prior to travel. Although this is an opinion letter and not always considered binding on CIS, it is important because aliens need to travel while waiting for the beginning of their H-1B status and there was concern that the change of nonimmigrant status would be considered abandoned if an alien travels while still in F-1 status.
A memo posted on May 1, 2003 by USCIS regarding AC21 interpretation provides guidance including the appropriate documentation needed for extensions of H-1B status beyond the sixth year when a labor certification or EB immigrant petition was filed more than a year previously.
An opinion letter by Efren Hernandez, Chief, Business and Trade Services Branch, dated April 24 2002, indicates that an alien can use a labor certification or EB immigrant petition of another or previous employer if filed more than a year previously as the basis for seeking an H-1B extension for a seventh year.
An opinion letter by Efren Hernandez, Chief, Business and Trade Services Branch, dated April 24 2002, indicates that an unrevoked H-1B petition remains valid for employment even where there is interim employment with another employer pursuant to H-1B status.
A memo dated January 29, 2001, from Michael Pearson, EASC, provides direction to INS (now DHS) regarding H-1B travel abroad while an H-1B petition for a new employer is pending. The circumstance arises when an H-1B visa holder in the United States applies for an H-1B extension to extend status through another employer. While that application is pending for the new employer, the alien in H-1B status can travel outside the United States so long as he/she has an H-1B visa in their passport that is valid for the duration of their trip and they have not worked without authorization.
A memo posted May 26, 2000, from Michael Cronin, AAC, provides guidance concerning the interplay between work authorization (EAD), advance parole and H-1B status for applicants for permanent resident status. In particular, the memo states that obtaining an EAD does not necessarily violate H-1B status unless the applicant uses the EAD to leave the H-1B employer to engage in employment for a separate employer. It also clarifies that use of advance parole when entering the United States does not affect H-1B employment authorization or the right to extend H-1B status.
Mark S. Davidson is a partner in the Chicago-based law firm of Davidson & Schiller, where he practices immigration law. He can be contacted via telephone at (312) 499-9000; or email: msd@dsimmlaw.com. For updates on U.S. immigration law, please visit our website at www.davidsonschiller.com.
*The information provided is general information and should not be viewed as provision of legal advice regarding any individual’s situation. This document is not intended as a substitution for consultation with an attorney.
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