Zero Tolerance And Portability - Are You In Status?

A fair amount has been written about the changing nature of the "maintenance of status" issue following the attacks of September 11 and in the wake of a severe economic downturn. Truth be told, no one knows what the ultimate disposition of this issue will be either from a broad policy standpoint or from a case-by-case adjudication. We have shifting policy priorities, shifting focal points of attention; and now a proposal to move the entire immigration apparatus to a new agency. How do we advise clients with respect to hiring recently laid off foreign nationals in H-1B status?

The most conservative advice seems to require a "just say no" approach to portability when a layoff has occurred. A petition can be filed, but requiring the person to leave the US to obtain an H-1B visa may be the safest solution. Of course leaving the US in the current environment may also pose some problems for the employee and all the considerations of increased security checks, delays and denials should be explored with the clients.

Let's briefly review the background influences and policy discussions on this issue.

In March 2002, the INS granted visa waivers to four Pakistani crewmen from a tanker in Norfolk, Virginia. The visa waivers were granted without supervisory approval. All four crewmen disappeared after obtaining their visa waivers. On April 9, 2002, INS Commissioner, James Ziglar, testified before the House Judiciary Committee that as a result of the incident in Norfolk, he "reassign[ed] the supervising officer, pending an investigation, and instituted a zero-tolerance policy on failure to follow policy from headquarters." He stated that: "Effective immediately, I am implementing a zero-tolerance policy with regard to INS employees who fail to abide by headquarters-issued policy and field guidance."

The term "zero tolerance" found it’s way into other aspects of INS statements. On April 17, 2002, the Vermont Service Center ("VSC") told representatives from the American Immigration Lawyers Association that "the INS has begun to institute a zero tolerance policy." The VSC explained that "[t]his means that if people are out of status, adjudicators will not be exercising discretion to consider the status violation de minimis and approve the benefit being sought. There is tremendous pressure being brought to bear by the Administration, the Congress, and the INS itself to ensure that the present state of the law is being followed precisely." AILA, Practice Advisory, 4/30/02. Although the Central Office of INS has backpeddled on this statement, the impact of these pronouncements throughout the adjudications ranks is proving to be significant.

We are already seeing an impact in the H-1B portability area, especially with increased issuances of Requests for Evidence.

INS and Related Statements

On June 19, 2001, a memorandum written by Michael Cronin, Acting Executive Associate Commissioner, attempted to clarify the proper considerations for H1-B portability benefits. Cronin references a prospective statement of policy concerning a reasonable period of time an H-1B employee may take between leaving one employer and beginning work for a new employer. He says "a reasonable period of time such as 60 days" is expected to be proposed by the Service. However, this 60 day grace period has never been included officially in a statement of Service policies. Statements from regional service centers, after September 11, as explained below tend to show that 60 days is generally considered too long.

One other interesting aspect of the Cronin memo should dispel the myth of a 10 day grace period. The 10 days is only referenced in terms of applicants re-entering the US after a portability case has been filed. The memo points out that "[t]he nonimmigrant applicant is admissible to the validity date of the previously approved petition, plus 10 days." This admissibility reference applies to the Service’s January 29, 2001 memo concerning the four prerequisites an H-1B applicant "who is no longer working for the original petitioner" must have in order to be considered admissible at a port of entry. For reference purposes, these four prerequisites are:

1. that the applicant is otherwise admissible;
2. that the applicant, unless exempt, is in possession of a valid, unexpired passport and visa (including a valid, unexpired visa endorsed with the name of the original petitioner);
3. that the applicant was previously admitted as an H-1B or 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; and
4. that an H-1B petition was timely filed on behalf of the applicant, before expiration of the validity dates of the applicant’s previously authorized period of stay. This evidence shall be in the form of a copy of a dated Form I-797 receipt notice reflecting that a new petition has been filed, or other credible evidence of timely filing that is validated through a CLAIMS query.

On November 6, 2001, the Nebraska Service Center answered questions from AILA concerning various immigration policies. When asked about a laid off H-1B worker between H-1B employers, the NSC specifically stated that 30 days before filing for the new job "would be considered a significant break in status." The NSC also made it clear that it interpreted the regulations concerned to provide that "such incidents MAY be excused in the discretion of the Service, however does not mandate such use of discretion." The example the NSC gave of a situation where the circumstances are not extraordinary [see 8 C.F.R. 214.1(c)(4)] involved an H-1B employee being laid off by their H-1B employer.

On December 4, 2001, the California Service Center explained to AILA representatives that a strict reading of H-1B regulations concerning "an employer’s notification of termination of an H-1B worker was necessary. The CSC stated that they "cannot honor a request to not revoke a petition when the H-1B worker is no longer employed."

One can argue that the laid off H-1B worker can receive benefits under the theory of portability. Indeed, the petitioning employer can employ the ported individual up until a denial is received on the petition extension. Given the current backlogs at many service centers, this may take between 3 and 5 months. One can also argue that the laid off worker's time out of status should be considered "extraordinary circumstances" and therefore should be forgiven. However, with notions of "zero tolerance" swirling through an examiners mind, the most conservative approach for practitioners may be to avoid H-1B portability when there is doubt as to the employee's maintenance of status at his/her previous employer. Zero tolerance has not traditionally been the modus operendi of the INS. We hope that a more reasoned policy will emerge.

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