Clarification on Revocation of H-1B Status and Non-immigrant Status
February 24th, 2009 by Brian D. Zuccaro
AILA has received a number of comments on the recent VSC Practice Pointer on H-1B Status and Non-immigrant status (AILA Doc. No. 09021960), and would like to address member concerns.
In the January 21, 2009 VSC liaison minutes (AILA Doc. No. 09012768), VSC discussed the impact of a revocation of an H-1B petition on H-1B portability. VSC indicated that in order to be eligible to “port” to a new H-1B employer, the new petition must be filed before the old petition is revoked or withdrawn by the old employer. VSC did not state that the H-1B non-immigrant had to be currently maintaining status with the old employer to be eligible for portability, nor did VSC indicate that that it would not exercise discretion allowed under 8 C.F.R. § 214.1(c)(4) in favor of an extension of status.
From AILA InfoNet Doc. No. 09022076
Note that VSC does not adjudicate portability. Eligibility for H-1B portability is defined at INA § 214(n) as follows:
- The foreign national was lawfully admitted
- the new petition is “non-frivolous”
- the new petition was filed before the date of expiration of period of authorized stay
- subsequent to lawful admission, the foreign national has not been employed without authorization
If an H-1B non-immigrant meets the above-mentioned criteria, s/he would be eligible to work pursuant to H-1B portability even if s/he was not eligible for an extension or change of status. So, for example, an H-1B non immigrant is terminated from her H-1B employer on January 15th. In order to avoid monetary penalties, her H-1B employer requests revocation of the petition that same day, and it is automatically revoked under 8 C.F.R. § 214.2(h)(11)(ii). Two months later, the alien finds a new employer who files a new, non-frivolous H-1B petition on her behalf. Since 1) she was lawfully admitted; 2) the new petition is non-frivolous; 3) her I-94 has not expired and she has not worked without authorization, she is eligible to start working under INA § 214(n). However, she may not be eligible to extend her H-1B without a favorable exercise of discretion under 8 C.F.R. § 214.1(c)(4).
This does not mean she is not authorized to work under H-1B portability. What it means is that she may work “until the new petition is adjudicated.” Upon the approval of the petition, authorization to accept employment pursuant to H-1B portability terminates, and, if the USCIS declines to favorably exercise discretion under 8 C.F.R. § 214.1(c)(4) to “forgive” the failure to maintain status and to grant an extension of stay, she instead will need to depart the U.S. and either obtain an H-1B visa at a U.S. consulate, or, if she already has a valid H-1B visa from her former employer, she will simply need to depart the U.S. and, upon re-entry, present her old visa with the new I-797 and continue working.
From AILA InfoNet Doc. No. 09022076
