Immigration Issues:"They're Coming to America"It would be nice if immigrating to the U.S. was as easy as singing a song. Although it is a time consuming and detailed process, the United States still offers one of the world's most welcoming and liberal immigration policies.
One of the often used programs, particularly by employers, is the H-1B petition program. Several categories of employees are covered by this program and are able to work in the United States for up to three years. The remainder of this article focuses on issues concerning existing H-1B employees from the perspective of the employer's legal compliance. Although the information is still valuable for potential, or current, H-1B employees, it should not be relied upon by any individual or corporate entity, because circumstances and facts differ greatly between persons and companies. This is not intended to be legal advice relevant to your unique needs or an agreement to represent you or your company. Please share the facts of your case or circumstances with us to determine what course of action is best for you -- we'll be happy to help.
As mentioned above, the H-1B petition maximum is limited to three (3) years. Because of this limit, employers often apply for an extension for particularly valuable employees. An additional three (3) year extension can be granted, and, in very limited circumstances, extensions beyond the six (6) year limit are also possible.
Typically, H-1B status extends for the six year limit. The start time is the date the employee-alien actually entered the US (not the approved start date on the approval notice). If you, or your employee's date of entry is different from the date on the approval notice, be sure to document the date of entry. In determining the amount of time an employee-alien has spent under H-1B status, the cumulative time spent in the United States is added together for the preceding six years. This includes any time the employee-alien spent working for other employers. Interestingly, all H-1B employees are allowed to deduct any days spent outside the US from the H-1B limitation period. In other words, any time spent outside the US for an H-1B employee is added back into the unused time under the H-1B petition. Time outside of the US can be for any work or personal reason. Be sure to document this time spent outside the US Nevertheless, once the six year limitation is reached, the employee-alien must reside and by physically present out the US for one year preceding H-1B status extension.
There are exceptions to requiring an employee-alien to reside outside of the US for one year if the employee-alien has had H-1B status for six or more consecutive years. Chiefly, an exception should apply if the H-1B employee did not continually live in the US, but merely worked for a US employer (a) on a seasonal basis, or (b) for less than six total months (all time added together) per year. The employee-alien's company should supply copies of the employee-alien's tax returns, arrival and departure dates, and any other records of the employment abroad.
Extending
H-1B status may be coming more time consuming due to the number of applicants
and pressures in the processing. Your company, or the employee-alien,
should consider an H-1B extension through the use of an I-140. Although
immigrant visas, based upon employment status were issued rather quickly,
such is not the case today. The processing time required may be too great
for the employer or employee -- some sources estimating three to five
years. Ensure that you or your employee has an approved I-140. With this,
and other documentation, an extension may still be granted even if the
employee-alien's country of origin has met its per country visa limits
so long as the employee-alien otherwise qualifies for a H-1B extension.
If you are trying to extend an employee-alien's H-1B status, and their status has already expired (read: you've had too much work on your desk and didn't really get to this in time), then you must somehow justify the late application for extension. Check to see if any of the below factors apply to you: (a) is the length of the delay reasonable, (b) were there extraordinary circumstances beyond your control, (c) has any other rule been violated, (d) does the applicant still have nonimmigrant status, (e) is the applicant free from any formal removal proceedings. If the employee-alien stayed beyond the authorized period (shown on the I-94 form), then the employee-alien must submit a H-1B nonimmigrant visa application from abroad -- from his/her country of origin.
Often to a company's detriment, a H-1B status employee alien is overlooked for fear of extra costs and bookkeeping requirements. While paperwork certainly is required, our country's generous immigration policy is exemplified in the H-1B status portability between different employers. Generally, a new employee-alien with H-1B standing may begin working for a new employer upon filing the H-1B petition -- no longer must the employer and potential employee-alien wake for a determination on the petition. However, the employee-alien must have previously been granted H-1B status, must have lawfully entered the US and must only work in the employment as authorized on the H-1B petition. While employment may begin upon filing as mentioned above, the employer must file the petition before any expiration of the original time period or extension(s) granted.
Recruiting an H-1B employee-alien may be an effective way to strengthen your workforce, but what if you are approached by an applicant who states he or she was laid-off or terminated? Deciding to not consider this potential resource may be a poor decision. Generally, the "official" course of action when an employee-alien is terminated is for the H-1B status to immediately terminate along with the employment. No grace period, under the portability provisions above, exists. However, in practice, and unofficially, when a new employer properly files an H-1B extension for a recently laid-off or terminated employee-alien (no more than 30 days after separation from the former employer), a nunc pro tunc extension may be granted to the new employer/employee-alien. (See, 8 CFR §214.1(c)(4).) Because each circumstance is different, please contact us or another attorney to share the facts of your case.
The above
is just a small portion of the law and practice concerning immigration.
It is a form driven, formalized procedure to ensure the organized and
fair treatment of all who choose to enter and work in the United States.
We'll be happy to help you learn where you, or your company, may fit into
the immigration process. Please contact us by telephone or e-mail. © (2007) Brittany & Brittany |