Further Issues Surrounding the H-1B Legislation Passed in 2000 - Focus on Portability

It is difficult to believe that it has been almost six months since Congress passed changes to the H-1B visa category. These changes included a raise in the H-1B Cap; new portability provisions; extensions beyond the 6 year limitation and revisions to the amendment procedures for corporate reorganizations. What is even more difficult to fathom is the little bit of guidance that has been received from either the Department of State or the Immigration and Naturalization Service ("INS") on the actual implementation of these new laws.

While the agencies seem to be at a standstill many pressing issues have arisen. Some of the primary concerns are identified herein.

• Transfers from One Employer to Another – Portability. H-1B nonimmigrants may now change jobs upon the filing of a new petition by the new employer as long as the individual is in lawful status at the time of filing and has not engaged in any unauthorized employment since his or her last lawful admission. The Department of Labor has made it clear in its interim final regulations that were published in January of 2001 that an applicant may not port from one sponsor to another without an approved labor condition application in the filing with the INS. The INS has not issued official guidance on what is a receipt for purposes of a filing. Although common wisdom and practice suggest that evidence of a courier receipt from the INS will suffice. More practical problems have arisen with the portability provisions concerning family members outside who need to obtain a visa and visa issuance for the principal H-1B beneficiary him/herself. Numerous instances of individuals stopped at an Embassy or border crossing by INS and State Department personnel who are unfamiliar with the new provisions.

• Double Transfers - Who is the Real Employer under the Portability Provisions. Many foreign nationals are courting multiple employers and may have 2 – 4 different H-1B portability petitions in the works. Questions as to who the employer is and who incurs the H-1B responsibilities are arising often. Additionally it is taking so long for an H-1B petition to be approved – 4-6 months in some circumstances, that an employer may find itself attempting to port a prospective employee from a company where the individual still has not received the H-1B approval.

• Contractual Resolution to Transfers – Many employers who initially supported the portability provisions of the new law are now found suffering as money is spent to sponsor these individuals ($1110 per application) and the employee leaves after only a few months. While an individual employee may not be required to repay the filing fee for the H-1B, there may be a way through contract to protect the employer’s investment.

• Layoffs – Reductions in Force – The downturn in the US economy has also played a role in the life of H-1B visa holders. Many companies are laying off hundreds of workers including H-1B visa holders. The INS has said that it will take a relaxed approach to those who find themselves without employment. However, once the H-1B visa holder is terminated, he/she is considered to be out of status and is subject to removal proceedings. This makes it difficult for the H-1B visa holder as well as other potential H-1B sponsors who may want to use the portability provisions to transfer the foreign worker to its payroll.

These and other issues need to be addressed by the INS and the State Department as soon as possible. The change in the Administration has left many positions at the agencies yet to be filled. We do not expect concise guidance within the next few months. The best we can do is make inquiries and educated guesses.