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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.)

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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