Question: I have filed an H-1B to change employers from my current H-1B employer to my new employer. I received an RFE asking for evidence of “Maintenance of Status.” What does this mean?
Answer: Great question. In order for H-1B portability to apply, you must show USCIS that you have maintained your H-1B status. Basically, you need to provide evidence showing USCIS that you remained employed by your H-1B employer up to the time USCIS received the H-1B requesting a change to your new employer. Generally, you would submit your last 3 months pay slips to USCIS along with the H-1B change of employer petition. If you’ve done this and if the pay slips were current as of the filing of the new petition you should be fine. However, occassionally USCIS will still request more evidence that you maintained your H-1B status. This evidence can include your W-2 statements and a copy of your Federal Income Tax Return.
Example 1: I filed a change of employer petition on June 1st for the beneficiary to change from Employer A to Employer B. The petition was received by USCIS on June 2nd. Along with that petition, I included the beneficiaries pay slips from Employer A from May 2009, April 2009 and March 2009. For good measure, I also included the beneficiary’s W-2 statements from 2008. This was a simple maintenance of status issue because the beneficiary had remained at Employer A right up to the filing of the H-1B petition. However, Example 2 contrasts this.
Example 2: Same facts as Example 1 except the employee was terminated from Employer A on April 1, 2009. This beneficiary was no longer maintaining status as of her termination date on April 1, 2009. In this case, the beneficiary is not maintaining status and must depart the U.S. after termination from her H-1B employer. If the gap between termination and the filing date is long and pay slips or unpaid leave evidence is not available to show maintenance of H-1B status, USCIS would likely deny the change of employer and approve the H-1B requiring the beneficiary to return to her home country to obtain H-1B stamping before beginning work for Employer B.
Note: H-1B portability enables you to “port” or change employers to a new employer AND begin working for the new employer upon FILING of the change of employer petition. In order to commencee employment upon filing of the new petition, however, three requirements must be met:
1. You must have been lawfully admitted to the U.S. (must have an unexpired passport and visa and be admissible and must provide USCIS with your I-94 and H-1B approval notice showing your lawfully admitted status);
2. The new petition must be “nonfrivolous” meaning that it must be a bona fide petition for a position which is available and for which you are qualified and eligible to fill;
3. the new petition was filed before the date of experation of the period of stay authorized.
If the above conditions are met and you continue to maintain status in the U.S. you may change employers and can start to work for the new employer as soon as the petition reaches USCIS (I recommend waiting for the receipt). However, if you are terminated, your H-1B relationship has ended with your employer and the employer is REQUIRED by law to notify USCIS of your termination and provide you with transportation back to your home country. This will seriously hinder your job search in the U.S., however, so line up that new job BEFORE your employer terminates you or BEFORE you tender your resignation. In this case, a little pre-planning and a backup employer can make a huge difference.
As of May 1, 2009, approximately 45,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.
Cite as “AILA InfoNet Doc. No. 09042065 (posted Apr. 27, 2009)”
April 27, 2009 H-1B Cap Count
On April 27, 2009 USCIS updated the count of H-1B petitions received and counted towards the H-1B cap on the USCIS website. As of April 27, 2009, approximately 45,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS continues to accept advanced degree petitions stating that experience has shown that not all petitions received are approvable.
April 9, 2009 - USCIS announced an updated number of filings for H-1B petitions for the fiscal year 2010 program. USCIS has received approximately 42,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.
USCIS is reporting that they have received only half of the petitions needed to fulfill the H-1B Cap of 65,000. USCIS has received nearly all of the 20,000 Cap exempt packets for individuals with a U.S. Master’s Degree. USCIS will continue to accept petitions until the Cap is reached.
Note to employers of H-1B employees. H-1B Compliance is on the rise.
2009-Cognizant recently agreed to pay $509,000 in back wages as a result of a Department of Labor (DOL) investigation into its prevailing wage practices. Cognizant bellieves that it complied with prevailing wage requirements but agreed to pay the wages due to pressure from DOL. See the Silicon India article at:
2008-Eleven managers of affiliated companies were arrested on serious charges of mail fraud and conspiracy based on fraudulently prepared and submitted Labor Conditions Applications. In this case, the managers completed all LCAs for the lower prevailing wage work location of Iowa while workers were placed at positions throughout the United States. As an example, the prevailing wage for a Level I Software Engineer (Applications) in Des Moines, IA is $54,538 while the same position in Orange County, CA requires a prevailing wage of $61,776. Therefore, the employee was being paid $7238 below the required wage. Multiply this number by hundreds (or thousands) of employees and you’ll see the company’s motivation.
http://www.itbusinessedge.com/cm/community/news/sou/blog/11-arrested-in-h-1b-fraud-sweep/?cs=30493
2007-Patni paid $2.4 million in back wages for shortages to H-1B employees.
http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9023964
Fines, indictments and debarrment from filing future H-1Bs is at stake. How does a company become and remain compliant?
1. Do a complete audit of all of company LCAs. Make certain the work location reported on the LCA is the work location where the beneficiary is assigned. Make certain the wage reported is the proper prevailing wage required of the position. (compare with the job description) In some cases, you could be under reporting the prevailing wage by selecting a Level I wage for a position which requires a much more experienced individual. LCA compliance assistance is available at http://www.dol.gov/compliance/
2. Prepare new H-1B petitions to correct any LCA deficiencies for material changes in job duties, salary or corrections in geographical wok locations.
3. Expect an audit.
4. Pray that you can complete all of this before you are audited.
5. Set up internal systems for tracking geographical and job duty changes so that you remain compliant.
6. Call an attorney experienced in compliance and H-1B issues for advice. This is a potentially costly area for companies and the managers who participate in the immigration program. Is your company next? You should not try to navigate this alone.
Don’t get excited too quickly if you receive an H-1B receipt notice this week. USCIS has announced that they accidentally issued some receipt notices for H-1B Cap counted cases. The receipt notice would normally be the indicator of acceptance under the H-1B Cap. In this case, however, the receipt notices will be recinded and those cases which received receipts in error will be placed in the H-1B Cap lottery.
Last night I dropped off 224 H-1B packets at the courier for filing at the Vermont and California Service Center. Today, all of the packets have been delivered and the wait begins for the H-1B Cap “Lottery.” My guess is that 127,000 petitions were submitted this year. Let’s see how close I come to the actual number submitted.
The next several postings will include updates on how many petitions are submitted to USCIS under the H-1B Cap and how many of our petitions were accepted under the Cap so please check back for updates.
“I’m on H-1B and have just been terminated from my job. What do I do?”
Losing a job is a turning point for anyone. For the H-1B holder, however, the consequences are severe and immediate. As soon as you are informed of your termination there are steps you must take to secure your benefits and, perhaps, your future H-1B employment. As an H-1B employee your status in the United States is tied to your employment. The day you are terminated you are not considered to be maintaining lawful status in the
You must file a change of employer petition as soon as possible.
When terminated from your employment you are not maintaining lawful status in the
Reminder: Do not begin working for your new employer until you confirm that your H-1B change of employer petition has reached USCIS. The safest way to confirm this is to wait for the receipt notice issued by the
Your employer must pay for your transportation home.
If you wish to depart the
Returning home does not necessarily subject you again to the H-1B Cap.
It is important to note that departing the
There are alternatives to termination.
Finally, if you have a good relationship with your employer, but tough economic times are forcing them to terminate employees, consider applying for and negotiating a period of unpaid leave. You will need to put your request in writing and request a written response from your employer. This unpaid leave period will provide you with the time needed to seek new employment and to have the new employer prepare your H-1B petition. In addition, the written correspondence between you and your employer may serve as the evidence needed to show that you have maintained status in the
The economic downturn in the