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FLORIDA
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METRO (DC-MD-VA-NY) |
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US IMMIGRATION UPDATES
FEB 2000 |
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INS Recently Clarifies Status of H-1B Worker While on Leave |
By Vanessa S. Barcelona
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Maintaining
lawful status has become more imperative in the last two years,
with the demise of Section 245(i) of the INA. |
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Where someone in the past could lose their status and
still apply for adjustment of status to lawful permanent resident
with the payment of a $1000 fine and without leaving the U.S., the
expiration of 245(i) has left those in the same boat, with
exceptions for certain immediate relatives of U.S. citizens, with no
other recourse but to leave the U.S. and undergo consular processing
abroad, unless
a labor certification or immigrant visa petition had been filed on
their behalf by January 14, 1998.
With the advent of other immigration laws that bar a return to the
U.S. for 3, possibly 10, years if the applicant was in the U.S.
unlawfully for 180 days or more, it is clear why now, more than
ever, it is important especially for the employment-based adjustment
applicant, to maintain lawful status in the U.S. from entry to the
time the adjustment of status application is filed.
(Note that notwithstanding the expiration of 245(i), current
regulations will allow an employment-based applicant to file
adjustment of status in the U.S., despite a period or periods of
unlawful status following entry up to the filing of the adjustment
petition, as long as such periods in the aggregate do not equal 180
days or more.)
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For the H-1B worker, maintaining lawful status means not working for
any other company besides the H-1B petitioner. An H-1B worker can
have as many employers as they can handle, but each and every
employment must be approved by INS through the filing of a separate
H-1B visa petition by each and every employer. Also, the salary,
hours, and worksite location must be consistent with the information
filed with the INS. When a significant change results, the
regulations require that a new petition be filed to reflect those
changes. Given this, it is reasonable that the H-1B worker will be
apprehensive when changes -- such as a leave of absence, perhaps --
occur, whether voluntarily or involuntarily.
The INS, through its Business Services Branch Chief, Mr. Thomas W.
Simmons, recently responded to an inquiry on the same subject. His
response is significant, as it offers guidance into the manner in
which the INS will treat this issue when adjudicating
employment-based applications for changes/extensions of status
and/or employment-based applications for residency. According to Mr.
Simmons, "An employee who remains on a company's payroll and
utilizes any temporary leave status (sick leave, annual leave, leave
without pay connected to legitimate necessities, etc)....would be
considered to be maintaining status."
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It is hoped that the recent INS opinion given on the subject will
provide sufficient information for the H-1B worker, and will quell
possible fears of H-1B non-compliance. On the same token, it would
be unfortunate for the H-1B worker to be lulled into believing that
an indefinite period of non-pay still means maintenance of valid
H-1B status.
Such a situation is especially prevalent in the health care field,
where nurses, physical/ occupational therapists are employees of a
healthcare services provider while being placed in nursing homes and
hospitals with whom a contract for placement has been executed by
the H-1B employer.
Oftentimes, a contract runs out or a nursing home goes out of
business or for whatever reason, for a temporary period, the H-1B
employee must wait, without pay, until a new assignment is made.
This situation may possibly apply to H-1B computer professionals as
well, although current demands for IT services make such a period of
non-assignment, at this time, less likely. As indicated by the above
opinion, however, as long as the employee maintains his/her employee
status with the H-1B petitioner, it appears that INS will not deem a
temporary lapse as a violation of the employee's H-1B status.
However, note that many situations arise in the context of an
employment relationship and such situations may have to be dealt
with on a case by case basis. When in doubt, it is always best to
consult your attorney. It may very well be that should such a
situation arise, what is best for the H-1B worker to do is to look
for a new employer and have a new H-1B petition filed immediately on
such worker's behalf to reflect the change in the employer.
VANESSA S. BARCELONA is a partner with the law offices
of Barcelona & Pilarski, P.A. She obtained her law degree from the
University of Florida. She is a member of the American Immigration
Lawyers Association, the American Bar Association, and the Florida
Bar. Please send all e-mails to: vsbarcelona@earthlink.net
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