USCIS announced that effective June 29, 2009, it will resume Premium Processing Service for Form I-140, Immigrant Petition for Alien Worker, in accordance with 8 CFR 103.2(f)(2). 

USCIS will accept Premium Processing requests for Form I-140 Immigrant Petition for Alien Worker, involving EB-1 Aliens with Extraordinary Ability, EB-1 Outstanding Professors and Researchers, EB-2 Members of Professions with Advanced Degrees or Exceptional Ability not seeking a National Interest Waiver, EB-3 Professionals, EB-3 Skilled Workers, and EB-3 Workers other than Skilled Workers and Professionals. 

Premium Processing Service is still not available for Form I-140, Immigrant Petition for Alien Worker, involving EB-1 Multinational Executives and Managers and EB-2 Members of Professions with Advanced Degrees or Exceptional Ability seeking a National Interest Waiver.

Under the Premium Processing Service, USCIS guarantees petitioners that, for a $1,000 processing fee, it will issue either an approval notice, or where appropriate, a notice of intent to deny, a request for evidence or open an investigation for fraud or misrepresentation, within 15 calendar days of receipt.  If the petition is not processed within 15 calendar days, USCIS will refund the $1,000 fee and continue to process the request as part of the Premium Processing Service.  

This is certainly great news for applicants who wish to lock-in their priority date with an I-140 approval, or use an I-140 approval (and visa number unavailability) as a the basis for a 3 year post-6th year H1B extension.

We will provide additional updates on the resumption of I-140 premium processing as it becomes available.

On Wednesday March 11, 2009, our law firm conducted a Webinar for non-immigrant and immigrant employees who have been laid off or think they may get laid off.  The topic of conversation was the impact a layoff would have an on employee’s immigration status.  The following are questions submitted by the Webinar participants.  We felt that providing our responses in a written format would be helpful to our Webinar participants, as well as to others who did not attend the Webinar.  Our answers should not be construed as legal advice since everyone’s case is different and details that may be missing in a question can impact the advice that is given. 

Q: I am here on an H1B and have gone though the process of getting a green card. In the meantime, I’m marrying an American citizen, should I continue to try and obtain a green card through work? 

A: That is a difficult question to answer without knowing more about where you are in the employment-based residency process.  However, we can tell you that the process of obtaining permanent residency through marriage to a U.S. citizen (as long as it’s a legitimate relationship) is usually much faster than obtaining residency through employment.  If you are in the beginning stages of your employment-based process, or if you are subject to per-country visa backlogs, you might be better off having your U.S. citizen spouse sponsor you for permanent residency. 

Q: What is the exact process to apply for an H1B transfer to another employer? (Cost/timing/exact steps, potential problems that the change to B1 status may cause, etc) 

A:  The company that wants to hire the H-1B employee will have to file a new H-1B application.  However, the case will not be subject to the H-1B cap.  Once the case is filed, the employee has the option of beginning work for the new employer while the case is pending.  Currently, an H-1B application takes between 4-6 months to process.  This can be expedited to within 15 days if the employer premium processes the case by paying an extra $1000 to the USCIS.  Attorney fees will vary, but the USCIS filing fee is $2320 for employers with more than 25 employees and $1570 for employers with less than 25 employees.   

If an H-1B employee has changed their status to B-1, the new employer can file for a change of status back to H-1B or file the case as a ‘consular processing’ case.  In the former situation, the employee could not work until the H-1B is approved.  In the latter, the employee would have to return to their home country upon approval of the H-1B application, obtain an H-1B visa (if they don’t have a valid H-1B visa stamp already) and return with the new approval notice in order to get back into valid H-1B status.  We recommend this approach since people on B-1 visitor should have the intention to returning to their home country, and returning to their home country to visa process should satisfy that requirement. 

Q: You mentioned H1B status expiring if you are terminated. If your H1B is valid till 2013,  can you go for a time as a Canadian visitor, then once finding a new job apply for a change of employer on the H1B and utilize the remaining eligibility? 

A: If you are a Canadian, you can return to Canada and re-enter as a visitor after termination. This would allow you to look for a job but you could not work.  Once you find a job, and if your new employer would like to sponsor you for H-1B status, you could obtain it (if otherwise eligible for H-1B status) for the remaining period of validity.  A person is generally allowed to hold H-1B status for up to six (6) years.  There are some exceptions to this six (6) year limitation.  

Q: On the topic of the TN, how can one qualify for the “Management Consultant” category? Can it apply to a position with a U.S. consulting firm? 

A:  To qualify for as a Management Consultant, you must be a Canadian citizen, have a job offer in a Management Consultant position, and have at least 5 years of consulting experience or at least a Bachelor’s degree in that field.  You can obtain more information on the TN visa at this link:  http://bashyamspiro.com/default.aspx?tabid=141.  TN status can now be issued for an initial period of up to 3 years. 

Q: Regarding an H-1B “gap”, if USCIS does not excuse the gap, does there need to be a new approval? Is this new approval subject to the annual cap? Or is it considered within the additional cap allocated for purposes such as this?  

A:  If the USCIS does not excuse the ‘gap’ between the termination date and your filing of a new H-1B transfer application, the USCIS can still approve the case.  If approved, you would have to leave the U.S. and return with a valid H-1B visa and your new approval notice to get back into valid H-1B status for your new employer.  The case will not be subject to the H-1B cap. 

Q: I am graduating soon (MBA) and will get an OPT which has a maximum of 3 months of unemployment time, after which I have to leave the US and go to Canada. Now, can I come back as a visitor and continue to look for jobs?  

A:  Yes. As a visitor, you can look for jobs if you have a professional background.  However, you cannot work. 

Q: What do I tell potential employers regarding my status, particularly when they aren’t willing to sponsor me? Can I say that they always hire me on a TN? I didn’t find a specific category for MBA’s under TN, but I was wondering if either Computer Systems Analyst (since I have an engineering degree) or Management consultant would work? 

A:  If you are a Canadian citizen, you can qualify for TN status if the employer is going to hire you in a position that is listed under NAFTA.  You can find a list of NAFTA positions and requirements at this link:  http://bashyamspiro.com/default.aspx?tabid=141.  

Q: Also, as a Canadian, what are my options once my OPT runs out?  Can I never reenter US labor force, until someone files an H1B (I believe that happens only on April 1^st) which means, I have to find someone who will file on April 1^st and wait for a few months to start working? Finally, can I legally look for a job, recruit or interview while on visitor status? 

A:  Yes, you can look for a job as a visitor but you cannot work.  As a Canadian, you would have to have an employer sponsor you for H-1B or TN status.  If you are a person of ‘extraordinary ability’ by being nationally or internationally known in your field, an employer could also sponsor you for O-1 status.  The O-1 and TN statuses are not subject to numerical limitations. 

Q: I have a TN status, but will be laid off. However I have a marriage-based green card case pending. Do the same rules for the employer-based process apply to me? Or can I stay and work with my EAD? 

A:  If you have a case pending based on marriage to a U.S. citizen, the same rules do not apply to you.  You can actually remain in the U.S. and work with your Employment Authorization Document (EAD) if you find another job. 

Q: My husband is on TD status and is currently a full time student since he is not allowed to work. Can he accept US paid –internships as a part of his college program? 

A:  It is unlikely since he is not in F-1 student status.  Regardless, we recommend that he speak with his International Student Office to get advice on this issue. 

Q: If I return to Canada and come back into the US as a visitor, how do I explain not having a Canadian address? My family had troubles coming in on TN when we told immigration officers that our house in Canada had been sold. 

A:  Unless you have evidence of your ties to Canada, you may have a problem entering the U.S. as a visitor.  Just tell the officer exactly what the situation is, and depending on the officer you may be allowed to enter the U.S. as a visitor.   

Q: If my H-1B I-94 expires in 2 years but I get laid off now, how long can my family and I stay in the US? We are Canadian. 

A:  The USCIS has a no ‘grace period’ rule for people in H-1B status when they are laid off.  Therefore, you cannot legally stay in the U.S. once you have been terminated from your job. 

Q: What is the approval rate of TN visas given the current economy? 

A:  So far, our office has not seen a direct impact between the economy and approval of TN status for our clients.   

Q: If you apply for a TN and they do not approve it at the border, can you still enter as a visitor? 

A:  That depends on the officer you are speaking with and the reason you need to enter the U.S. as a visitor.  In this situation, the officer might not believe that you are truly entering as a visitor and will not work.  

Q: Will/can they deny your reentry as a visitor if you leave and reenter immediately? 

A:  Any application for entry can be denied even in the best of circumstances.  So far, however, we have not seen this to be a big issue.  Just tell the truth to the officer on why you need to be in the U.S. as a visitor, how you have the intention of returning to your home country, and in most cases they will let you through. 

Q: If the application for E2 renewal is in process but the I-94 has expired during that time, do the I-94 penalties apply from date of expiration of visa/I-94 or from the date of the denial of renewal? 

A:  Unlawful presence for the 3 and 10 year bars will start accruing after the date of denial, or after 240 days if your extension has been pending that long. 

Q: When I-140 is approved and I-485 is pending, does that void the GC application as well?

A:  If you have an approved I-140 and your I-485 adjustment has been pending for over 180 days, the application can continue to be processed if you can find another job in the same or similar position to what was listed in your labor certification application.  This is called ‘porting’ under AC21. 

Q: My H1B approval notice has an I-94 on the form. Can we go by the date on this I-94 to determine our stay in the US?

A:  The expiration date on your I-94 will determine your stay in the U.S. as long as you are working in valid H-1B status.  If you are laid off or otherwise terminated from employment, you would be ‘out of status’ immediately upon termination or layoff. 

Q: What happens if I lose my job while I’m on EAD? 

A:  If you have an approved I-140 application and your I-485 adjustment has been pending for over 180 days, you can look for a new job and then work on EAD once you find one.  Your residency application can continue to be processed through the new employer. 

Q: I am going to the border to get a new TN visa myself, while my husband stays here in the US with my son (who is an American citizen). Should I take my husband’s passport with me to get his TD visa or does he have to be with me to get his new visa? 

A:  If you are extending your TN status, we recommend that your husband accompany you to the port-of-entry in this situation. 

Q: My Labor Certification and I-140 are approved and the I-485 is pending since Sept.2007, can I travel outside the country? 

A:  If you have a valid Advance Parole document (APD), you can travel outside the U.S. and return as long as you have not otherwise violated your status in the past. 

Q: I am on H1B and I’m a Canadian citizen, is it safe to leave by April 5^th? My I-94 expires in 2010 but my layoff termination date is April 5^th. 

A:  Yes, if you leave on the termination date, you would not be staying in the U.S. illegally. 

Q: How long can a person with a pending I-485 remain in the US unemployed or without a job? 

A:  If you have an employment based I-140 approved and I-485 pending for over 180 days, you can remain here until you find a job.  You must find a job in the same or similar position prior to final USCIS adjudication of your I-485 application. 

Q: If currently on TN visa, what is the best route to obtain a Green Card? Try to obtain an H1B then apply for a Green Card? 

A:  The TN is a single-intent status.  That means that you must have the intention of ultimately returning to your home country.  The H-1B is a dual-intent status, meaning that your intention to return home does not matter.  We therefore recommend that people switch from TN to H-1B before initiating the permanent residency process.  If you process a residency application while on TN status, you may have problems extending your status or may run into problems at the port-of-entry if an Immigration officer asks you questions relating to your pending residency application. 

Q: If you have a TN how long can you stay in the US before returning to Canada?  What are the options if I have a TN visa, and I’m terminated in February, but my I-94 expires in July? 

A:  There is no grace period after termination even if on TN status.  Therefore, you would legally have to return to Canada immediately. If you are employed, then you can remain here in TN status until the expiration date on your I-94 card.  Your TN status can also be extended if you wish to remain with your employer and continue working in the U.S. 

Q: What do I do now that I’ve been here for 2 weeks and I’m in the middle of the recruiting process with a company? It’s possible that I may get an offer within the next week.   Do I stay and go for the 2^nd interview or return home and come back for interview? 

A:  If you are in H-1B status, your new employer can file an H-1B transfer application for you even if there is a ‘gap’ in filing.  If the gap is short, the USCIS can excuse it at their discretion.  The longer the period between the termination date and the filing of another H-1B, the likelier it is that the USCIS will not excuse the gap and you would have to return to your home country and reenter with valid visa and your new approval notice to get back into H-1B status.   

U.S. Citizenship and Immigration Services (USCIS) will expand Premium Processing Service for designated Forms I-140 (Immigrant Petition for Alien Worker) to include alien beneficiaries who have reached, or are reaching, their limitation of stay in H-1B nonimmigrant status. Currently, only certain alien beneficiaries who are in H-1B nonimmigrant status at the time of filing may request premium processing for Form I-140.

Beginning March 2, 2009, USCIS will accept Form I-907 (Request for Premium Processing Service) for alien worker petitions filed on behalf of alien beneficiaries who, as of the date of filing the Form I-907:

• Are the beneficiary of a Form I-140 petition filed in a preference category that has been designated for premium processing service;
• Have reached the sixth-year statutory limitation of their H-1B stay, or will reach the end of their sixth year of H-1B stay within 60 days of filing;
• Are only eligible for a further H-1B extension under section 104(c) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21); and
• Are ineligible to extend their H-1B status under section 106(a) of AC21.

Aliens who are abroad or who currently hold another non-immigrant status other than H-1B are also eligible for I-140 Premium Processing if the above-mentioned conditions are met. 

Section 104(c) of AC21 permits applicants to extend their stay in H-1B nonimmigrant status in increments of up to three years, provided they are the beneficiary of an approved Form I-140 and an immigrant visa is not immediately available. Section 106(a) of AC21 permits applicants to extend their stay in H-1B nonimmigrant status in increments of up to one year, provided the Form I-140 petition or underlying labor certification has been pending for at least 365 days. 

These are tough times.  The country is in a recession and some people are losing their jobs.  If a U.S. citizen or a Lawful Permanent Resident is laid off, they need to worry about paying their bills and finding another job.  When a non-immigrant worker is laid off, they have more than just a job and bills to worry about – they need to worry about their immigration status and ability to remain in the United States as well.  Over the past few weeks, our law firm has been asked various questions by our clients that relate to their immigration status and corporate obligations after a lay off.    

Q:        When does H-1B status expire in a layoff?  Is there a grace period after being laid off?   

Unfortunately, the United States Citizenship and Immigration Service (USCIS) has been pretty clear that there is no grace period for an H-1B employee who is terminated.  Clients have heard rumors about a ’10 day’ grace period and often ask us whether this applies to them.  A 10 day grace period exists after the expiration of the H-1B petition.  The date the petition expires can be found on the employee’s I-797 approval notice.  

We would like to point out that the 10 day grace period only applies after the complete fulfillment of a person’s H-1B status.  Again, it does not apply to an employee who is terminated prior to the fulfillment of their status.  For example, if a company decides not to extend a worker’s H-1B status and lets it run out, the worker should have a 10 day period after the expiration date to settle their affairs in the U.S. or to find another job.  That is because the H-1B worker was not terminated and worked until the end of their H-1B period of stay.  Workers in H-1B status should make sure to compare the expiration date of their I-94 with the expiration date of their I-797 petition.  Sometimes port-of-entry officers already add 10 days to the expiration date on the I-94. If that is the case, then the worker’s status ends on that date and there is no grace period.

Q:        Does an H-1B worker have any other options if laid off?

Yes, the worker can file for a change of status to B-1 business visitor.  This application should be filed prior to the lay off while the H-1B non-immigrant worker is still ‘in status’.  If approved, the B-1 status allows a person to remain in the U.S. to look for another job.  However, they cannot work while holding B-1 status.  If a person holding B-1 business visitor status finds a job, the new employer must file an H-1B application and it must be approved before the person can begin working again.  This H-1B petition will not be subject to the H-1B cap since the worker has previously been counted against the cap.

Q:        What if an H-1B worker is laid off but expects to have another job offer in a few weeks?

The H-1B worker is considered to be ‘out of status’ if there is a gap between termination of employment and the filing of another H-1B application with a new employer.   During the adjudication of the new H-1B application, a USCIS officer in his/her discretion can excuse the gap if 1) the gap is not too long; 2) the worker has not otherwise violated their status; 3) not-excusing the gap will cause extreme hardship to the worker; and 4) the worker is not in removal proceedings.  If the USCIS officer does not excuse the gap, they can still approve the H-1B petition but the worker must leave the U.S. and return with the new H-1B approval notice and valid H-1B visa to get back into status.

Our office has often asked the USCIS to excuse gaps in filing under these circumstances with success.  Just make sure that the new H-1B filing is very up-front and honest about the termination of the H-1B worker’s prior employment and the reason for the delay in filing the new H-1B application.

Q:        What happens to a pending labor certification after a layoff? 

A labor certification is employer specific and job specific and cannot be transferred to another employer.  Therefore, it would become null and void after a termination.  If, however, the employer has the honest intention of re-hiring the worker once his/her permanent residency application is ultimately approved and the worker has the intention of returning to work for the sponsoring employer, the labor certification will still be valid and will be processed by the Department of Labor.  If this intention by the employer and employee does not exist, the employee will have to re-start the labor certification with a new employer.

Q.        What happens to an approved I-140 Immigrant Petition for Alien Worker after a layoff?

Assuming that a worker only has an approved I-140 and no pending I-485 Adjustment of Status application, the I-140 would become null and void after a lay off.  If the sponsoring employer has the intention of re-hiring the worker after the ultimate approval of the permanent residency application, the I-140 petition can continue to be processed.  If this intention does not exist and the worker has to re-start the process with a new employer, the good news is that the worker can retain the original priority date from the old case for the new permanent residency application.

 Q:        What happens if an H-1B worker has an approved I-140 and their I-485 adjustment of status has been pending for over 180 days?

In this case, the worker would be covered under the American Competitiveness and Workforce Act (AC21).  The worker could ‘port’ to another employer and continue with their residency application as long as the new position is the ‘same or similar to’ the original position listed in the labor certification.  Currently, there are no USCIS regulations that define the ‘same or similar’ standard.  If the job duties are basically close to what the worker was doing before, the worker should be covered under AC21.

Q:        What obligations does a company have when laying off a worker in H-1B status?

A company must pay for the H-1B worker’s reasonable transportation costs back to their home country.  This means paying for a plane ticket only.  This obligation does not extend to the H-1B worker’s family members.   A company should also withdraw the worker’s H-1B status by sending a letter requesting a withdrawal to the USCIS.   In DOL vs. Help Foundation of Omaha Inc. (ALJ Case No. 2005-LCA-037, the Administrative Review Board found that an employer’s obligation to pay the H-1B worker’s wages continues even after termination of the worker unless a withdrawal request has been filed with the USCIS.  

Q:        Can an H-1B worker get unemployment benefits after a layoff?

Unemployment benefits are determined by state law.  To get unemployment benefits, a worker must be able to return to work.  If an H-1B worker is laid off, they no longer have legal work status in the United States.  Therefore, a laid off worker in H-1B status may have a problem getting unemployment benefits.  To determine whether or not a person is eligible to receive unemployment benefits, we recommend that laid off workers contact the local branch of the Department of Labor.  Additional information can be found at http://workforcesecurity.doleta.gov/unemploy/uifactsheet.asp.

There is no question that these are stressful times.  If a worker is laid off, they may have options.  It is strongly recommended that non-immigrant workers contact an attorney to discuss their immigration status if a layoff is imminent. 

© Bashyam Spiro LLP 2009.

The United States Citizenship and Immigration Service issued a Frequently Asked Questions (FAQ) memo yesterday that addressed a number of questions people have regarding filing I-140 and I-485 applications pursuant to the July Visa Bulletin No. 107.  Since the FAQ is helpful and informative, we have listed each question and answer below.

Q1: Will USCIS reject a concurrently filed EB I-140/I-485 case if it is lacking a required Labor Certification? 

USCIS announced that it will accept labor certification substitution requests in the context of Form I-140, Immigrant Petition for Alien Worker, filings it receives on Monday, July 16, 2007.  USCIS previously announced that it would reject all labor certification substitution requests filed on or after July 16, 2007.  The new DOL regulation that prohibits substitutions of an alien beneficiary on any application for permanent labor certification will go in effect July 17, 2007 and not July 16, 2007.

Effective July 2, 2007, USCIS is temporarily suspending the Premium Processing Service for Form I-140 Immigrant Petition for Alien Worker.  USCIS said that it anticipates a substantial increase in the number of petitioning employers that will file Form I-140 petitions requesting Premium Processing Service in the month of July.  This is due to pent up demand for preference visa categories for which visas will become available according to the Department of State July 2007 Visa Bulletin.  USCIS expects the volume to exceed their capacity to adjudicate these premium processing requests.  The premium processing suspension will last until August 1, 2007.  At that time USCIS will determine whether it has the capacity to resume the Premium Processing Service for I-140 petitions.  Stay tuned to www.bashyamspiro.com for additional information.

The United States Citizenship and Immigration Service (USCIS) is instituting new procedures for filing a Petition for Alien Worker (I-140) that requires an approved labor certification application.  These procedural changes are in response to the Department of Labor's (DOL) final rule on labor certifications published on May 17, 2007.

The new regulation will significantly impact the filing of Form I-140 petitions with USCIS because it:

* Prohibits substitution of alien beneficiaries on any permanent labor certification application after the application has been filed with the DOL.

* Establishes a 180-day time period within which a DOL-approved labor certification must be filed with the USCIS in support of a Form I-140 petition in order to remain valid.

* Requires that any labor certification approved by DOL prior to July 16, 2007 be filed with USCIS in support of a Form I-140 petition within 180 days after the effective date of the DOL final rule (July 16, 2007) in order for the certification to remain valid.

USCIS will continue to accept and adjudicate labor certification substitutions until the effective date of July 16, 2007.   

Please note that any I-140 petition that is filed outside of the labor certification effective dates outlined above will be rejected by the USCIS.

Also, the new DOL rules require that employers pay all attorney's fees and other costs associated with the labor certification process after the effective date of July 16, 2007.

Please stay tuned to www.bashyamspiro.com for additional updates.