DOL Provides Additional Guidance on Processing RIR Conversion Requests

As previously reported in Immigration Newswire, the Department of Labor hasextended the deadline by which traditional labor certifications can be convirtedto Reduction in Recruitment (RIR). Now all pre-PERM labor certifications can beconverted to RIR.

The Department of Labor issued additional guidance on how RIR conversionrequests should be processed. Following are highlights from the DOL guidance:

1.) Backlog Elimination Centers (BECs) will not delay recruitment on applicationsto await RIR conversion requests.

When an employer decides to convert a pending, traditional labor certification toRIR, that employer must conduct good faith recruitment for the position beforesubmitting the conversion request. If, during the time the employer is engagingin recruitment efforts in preparation to file a conversion request, the BEC beginsto process the application by beginning supervised recruitment, then anyadvertising conducted by the employer in preparation for RIR will be lost.However, DOL has stated that if an RIR conversion request is submitted to theDOL with a postmark or express courier shipping date that is before the date thatDOL places a job order, DOL will accept and process the RIR request and cancelthe job order.

In the past, when local DOL offices were processing labor certifications, beforecreation of the BECs, some local DOL offices would comply with an employer'srequest to delay supervised recruitment so that the employer could submit anRIR conversion request. BECs will not follow this procedure, in an effort toeliminate the backlog of applications as quickly as possible. Therefore, employerswho prepare for RIR conversion by conducting good faith recruitment risk havingto duplicate those recruitment efforts under the supervision of the DOL.

However, DOL has promised that beginning in November, the BECs will bepuglishing processing dates for tradutional applications showing by month andyear what filing dates they are working on. This will help employers to knowwhen they can expect to receive recruitment instructions on their pendingtraditional cases and inform the decision as to whether or not to pursue an RIRconversion request. Currently they are working on applications from April 2001and do not expect to advance the date for some time due to the volume ofapplications filed then.

2.) Supporting documentation required for RIR conversion request:

a.) Written request for conversion

b.) Documentation demonstrating pattern of good faith recruitment within 6months preceding date conversion request is received by the BEC, and that U.S.workers were rejected only for lawful, job-related reasons. Must includedescription of recruitment process used & results of recruitment process.

c.) Contact information regarding the application, including e-mail addresswhere reply to the RIR conversion request can be sent.

3.) RIR conversion requests should be sent to the Backlog Elimination Centerwhere the labor certification is pending.The employer should have been notified of the BEC to which the application wassent via a 45-day letter which includes the BEC address.

4.) RIR conversion request will not change priority date.Unlike a request for conversion of a pre-PERM case to PERM processing, therequest to convert a traditional labor certification to RIR processing cannot resultin any change to the priority date, whether the RIR conversion request isapproved or denied.

5.) Employer must use 100% of the current prevailing wage for the RIR.When traditional labor certifications were filed, the Department of Labor allowedemployers to pay the beneficiary only 95% of the prevailing wage. However,under current DOL rules, employers are obligated to pay 100% of the prevailingwage. When an employer requests conversion to RIR, the recruitment must bedone at 100% of the current prevailing wage, not 95% of the prevailing wage andnot the prevailing wage that was in effect whent he labor certification wasoriginally filed.

How Long Do My Consular Processing Documents Remain Valid?

As you are undoubtedly aware, priority dates retrogressed last year in theemployment-based immigrant visa categories. Retrogression caught differentpeople in different stages of applying for permanent residency. For many of ourclients who were in the process of applying for immigrant visas using ConsularProcessing, their applications had already been submitted to the U.S. consulateabroad or to the National Visa Center when visa numbers retrogressed.Depending on the country in which these individuals were applying forimmigrant visas, their applications may have included original documents suchas birth certificates, police clearance certificates, etc.

For all individuals who had already submitted their consular processingapplications when retrogression occurred, the question arises as to how long theirsupporting documents will remain valid for. The Department of State ForeignAffairs Manual provides conclusive guidance on this matter. It states at 9 FAM42.65 N3,

Supporting documents that are subject to change are valid for one year.This time limitation applies to Form OF-230, Parts I and II (Application forImmigrant Visa and Alien Registration), medical examinations and policecertificates from any country visited or inhabited subsequent to the previousclearances. It does not apply to a birth certificate or a third country clearance orpolice certificates from an area to which the alien has not returned since itsissuance. The affidavit of support must be submitted within six months of itssignature by the supporting relative, however, it remains valid indefinitely.However, because the affidavit of support is based on the Federal PovertyGuidelines in effect at the time of the visa issuance, it may need to be updated.

Does AC21 Limit Availability Of Post-6th Year H-1B Status To Those Currently Maintaining H-1B Status?

Congress passed the American Competitiveness in the Twenty First Century Act(hereinafter, “AC21”) in October 2000, after the high tech boom of the 1990s andbefore September 11, 2001. AC21 reflects the openness to immigration duringthose years, and we are now left with its benefits. Unfortunately, no regulationshave ever been implemented to interpret AC21’s provisions. All we have asguidance are administrative memoranda leaked from USCIS, which are notbinding authority. One of many unresolved questions about AC21 is whethersections 104(c) or 106(a) permit an alien to obtain a 7th or subsequent year of H-1B status when he is currently either outside the United States or in a status otherthan H-1B.

Section 104(c) of AC21 states that it permits a post-6th year H-1B “extension” inthree year increments where certain conditions are met. It states:

Notwithstanding section 214(g)(4) of the Immigration and Nationality Act (8U.S.C. 1184(g)(4)), any alien who--

(1) is the beneficiary of a petition filed under section 204(a) of that Act for apreference status under paragraph (1), (2), or (3) of section 203(b) of that Act;and

(2) is eligible to be granted that status but for application of the per countrylimitations applicable to immigrants under those paragraphs,may apply for, and the Attorney General may grant, an extension of suchnonimmigrant status until the alien's application for adjustment of status hasbeen processed and a decision made thereon.

[Emphasis added]. USCIS has interpreted this to mean that H-1B status can beextended past the 6th year in three year increments, where (1) an I-140 petitionhas been approved on the beneficiary's behalf; and (2) the beneficiary is unable toobtain permanent residence because a visa number is unavailable.

USCIS has never addressed in any memoranda whether AC21 § 104(c) appliesonly to those currently in the United States maintaining H-1B status; or whetherthere are cases where people who are outside the U.S. or in the U.S. in a statusother than H-1B can obtain a post-6th year H-1B. AC21 § 104(c) is ambiguous inthis regard because the term “extension” has multiple meanings in immigrationlaw. On the one hand, an “extension” can refer to an “extension of stay.”Immigration regulations found at 8 C.F.R. § 214.1(c)(4) govern extensions of stay,and make it clear that, with certain exceptions, an “extension” is only availablewhere the applicant is in the U.S. maintaining his status, and files the request forextension of stay prior to expiration of his previously authorized status. If theword “extension” in AC21 104(c) refers to an “extension of stay,” then it ispossible to infer that 104(c) only applies to those who are currently in the U.S.and who are maintaining H-1B status.

On the other hand, the word “extension” in AC21 § 104(c) could also refer to an“extension of visa petition validity.” 8 C.F.R. § 214.2(h)(14) states that Form I-129, which is filed to request an extension of H-1B status, can be usedsimultaneously to request extension of visa petition validity. 8 C.F.R. §214.2(h)(15)(i) goes on to clarify, “Even though the requests to extend thepetition and the alien’s stay are combined on the petition, the director shall makea separate determination on each.” Thus, an alien who wishes to apply for bothan extension of stay and an extension of visa petition validity at the same timemust be physically present in the U.S. and maintaining H-1B status in order toreceive both. However, an H-1B petition extension could be filed for an alien who(1) was previously granted H-1B status; (2) that previous H-1B petition has notyet expired; but (3) the alien is not physically present in the United States.

For example, say Company A filed an H-1B petition for Mr. Smith on October 1,2003, and it was approved with validity dates of 10/1/03-10/1/06. Also assumethat 10/1/06 will mark the end of Mr. Smith’s 6th year in H-1B status. However,Company A has filed an I-140 petition on Mr. Smith’s behalf which has beenapproved, and Company A has no intention of revoking that approved petition.Before Company A files the H-1B petition requesting extension of Mr. Smith’sstatus, Mr. Smith is called away to a family emergency abroad. Thus Company Afiles the H-1B petition requesting a three-year extension of Mr. Smith’s statusbased on AC21 104(c), and also requesting that notification of the petitionapproval be sent to the U.S. Consulate in Mr. Smith’s home country. The petitionis filed prior to expiration of Mr. Smith’s previous H-1B and requests “extensionof visa petition validity;” however, it does not request an “extension of stay” forMr. Smith because Mr. Smith is not currently in the United States. If the word“extension” in AC21 § 104(c) refers to “extension of stay,” it means that § 104(c)allows 3-year H-1B extensions only for those physically present in the U.S. andmaintaining H-1B status. But if “extension” refers to “extension of visa petitionvalidity,” then 104(c) can be used by aliens in Mr. Smith’s situation. The termused in § 104(c) is “extension of such nonimmigrant status,” which uses neitherof the terms of art used in USCIS regulations and could feasibly mean either one.

While AC21 104(c) arguably applies to aliens who are outside the U.S., it does notappear to apply to aliens who are in the U.S. in a status other than H-1B. An alienin another status does not have an H-1B petition to extend; nor would he berequesting an “extension of stay” under 8 C.F.R. § 214.1. Instead, he would berequesting a “change of status” under 8 C.F.R. § 248.

If AC21 § 104(c) is ambiguous, § 106(a) and (b) are far worse. AC21 § 106(a) and(b), as amended by the 21st Century Department of Justice AppropriationsAuthorization Act, state:

(a) The limitation contained in section 214(g)(4) of the Immigration andNationality Act (8 U.S.C. 1184(g)(4)) with respect to the duration of authorizedstay shall not apply to any nonimmigrant alien previously issued a visa orotherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) ofsuch Act (8 U.S.C.1101(a)(15)(H)(i)(b)), if 365 days or more have elapsed sincethe filing of any of the following:

(1) Any application for labor certification under section 212(a)(5)(A) of such Act(8 U.S.C. 1182(a)(5)(A)), in a case in which certification is required or used by thealien to obtain status under section 203(b) of such Act (8 U.S.C. 1153(b)).

(2) A petition described in section 204(b) of such Act (3 U. S.C. 1154(b)) to accordthe alien a status under section 203(b) of such Act.”(b) EXTENSION OF H–1B WORKER STATUS.—The Attorney General shallextend the stay of an alien who qualifies for an exemption under subsection (a)in one-year increments until such time as a final decision is made—(1) to deny the application described in subsection (a)(1), or, in a case in whichsuch application is granted, to deny a petition described in subsection (a)(2) filedon behalf of the alien pursuant to such grant;(2) to deny the petition described in subsection (a)(2); or(3) to grant or deny the alien’s application for an immigrant visa or foradjustment of status to that of an alien lawfully admitted for permanentresidence.

[Emphasis added.] In short, § 106(a) and (b) permit an indefinite number of one-year extensions of H-1B status past the traditional six-year maximum, whereeither a labor certification or I-140 were filed on the beneficiary’s behalf at least365 days ago. What is unclear is whether 7th- and subsequent year H-1Bs areavailable for aliens currently either outside the U.S., in the U.S. in anothernonimmigrant status, or in the U.S. but out of status.

Section 106(a), taken by itself, seems to make 7th- and subsequent year H-1Bsavailable regardless of whether filed as an extension of stay, change of status, orrequest for new or continued employment for someone abroad. It simply waivesapplication of INA § 214(g)(4) to anyone who had a labor certification or I-140filed on his behalf at least 365 days ago. INA § 214(g)(4) is the section of the Actlimiting H-1B status to a maximum of six years. It states:

In the case of a nonimmigrant described in section 101(a)(15)(H)(i)(b), the periodof authorized admission as such a nonimmigrant may not exceed 6 years.

If INA § 214(g) doesn’t apply, then aliens are permitted indefinite H-1B status.However, AC21 § 106(b) appears to limit this waiver. It states that suchextensions of H-1B status shall only be granted in one-year increments (ratherthan the three-year extensions normally permitted for H-1Bs). But § 106(b) doesmore than this: it says an “extension of stay” shall be granted to those who qualifyunder § 106(a)’s requirements. Unlike AC21 § 104(c), § 106(b) actually uses theterm of art “extension of stay,” from which the inference can be drawn that thealien is required to be in the United States and in H-1B status in order to reap thebenefits of AC21 § 106(a). However, it is not at all clear how §§ 106(a) and (b) areto be read together. The meanings of the two subsections conflict with each other.Subsection (a) states it applies to, “any nonimmigrant alien previously issued avisa or otherwise provided nonimmigrant status under section101(a)(15)(H)(i)(b).” This is a broad group of individuals including thosecurrently in the U.S. in another nonimmigrant status; those out of status; andthose abroad. But subsection (b) says § 106(a) applies only to those requesting an“extension of stay.” This is a narrow group of people including only thosecurrently in the U.S. in H-1B status requesting extension of stay. In effect,subsection (b) says that subsection (a) says something that it doesn’t; hence, theambiguity.

Our office’s experience in filing H-1B petitions indicates that USCIS decisions onthis issue are anything but consistent. In a recent case, one of our clients appliedfor an 8th year extension under § 106(a) while the beneficiary was outside theU.S. USCIS issued a Request for Additional Evidence (RFE) on the case. The RFEstated that it in order to take advantage of § 106, the beneficiary is required to bein the U.S. and maintaining H-1B status. However, in another recent case,adjudicated by the same service center, the H-1B beneficiary had already been inH-1B status for 8 years based on AC21 § 106(a) extensions, but had changedstatus to H-4 as his wife’s dependent because he was temporarily out of work.However, the same company re-hired him a few months later and filed a new H-1B petition invoking AC21 § 106(a) and requesting a 9th year in H-1B status. Thepetition was immediately approved without RFE. It is unclear whether USCIS, oreven individual service centers have taken a firm stance on whether they willgrant AC21 § 106(a) extensions for beneficiaries who are outside the U.S. or in theU.S. in another status, or even in the U.S. and out of status. However, in caseswhere options are limited, it is worth the argument that AC21 §§ 104(c) and106(a) permit post-6th year H-1B status even for those who are not currently inthe U.S. or are not currently maintaining H-1B status.

There is one option that can assist many individuals in avoiding this murky areaof AC21. In October 2005, USCIS issued a memorandum clarifying its policy ongranting recapture of time spent outside the United States while in H-1B (or L-1)nonimmigrant status. The memo confirms that it is now USCIS policy to allow H-1B and L-1 status holders to recapture any time spent outside the United Stateswhile in status. In order to recapture time, one must provide documentaryevidence of each day spent outside the United States while in H-1B status.Examples of such documentation include, but are not limited to, flight ticketstubs, passport arrival/ departure stamps, receipts for purchases made abroad orcredit card statements showing purchases made abroad. If recapture is granted,an alien will be permitted to extend his stay or reenter the U.S. in H-1B status forexactly the number of days he spent outside of the U.S. during his period ofauthorized admission.

An H-1B beneficiary who is outside the U.S. or who is in the U.S. in anothernonimmigrant status; who has otherwise reached the end of his 6th year in H-1Bstatus; and who spent even a small amount of time outside the U.S. during thevalidity period of his H-1B can file an H-1B petition seeking to recapture thattime. If the recapture is granted, the beneficiary will be placed back in H-1Bstatus, which grants him time to then file another H-1B petition, this timerequesting an “extension of stay” and invoking AC21 § 104(c) or 106(a), as appropriate.

USCIS seems to be allowing aliens to recapture time spent outside the U.S. evenwhen they are well past the 6th year of H-1B status. In the case mentioned above,where our client applied for an 8th year extension, and USCIS refused to applyAC21 106(a) to his case because he was outside the U.S., USCIS ultimately didapprove the petition based on our alternative argument that he should be able torecapture time spent abroad. USCIS allowed him to accumulate time spentoutside the U.S. during the entire seven years he had previously spent in H-1Bstatus. While this is only one case, our experience suggests that it is possible torecapture any time spent outside the U.S. while in H-1B status, even when one iswell past the sixth year in H-1B status.

It should also be possible to combine a recapture request with a request for anAC21 § 104(c) or 106(a) request. The May 2005 Yates memo on AC21 containsthe following question and answer:

Question 1: When an alien would otherwise be eligible for an H-1B extension, isit necessary to first file a Form I-129 requesting an extension of time to allow thebeneficiary to complete or nearly complete the initial 6 years, and then file anadditional form I-129 requesting an extension of time beyond the 6 years?

Answer: No. Section 106(a) of AC21 allows an alien to obtain an extension ofstatus beyond the 6-year period, when:

A. 365 days or more have passed since the filing of any application for laborcertification, Form ETA 750, that is required or used by the alien to obtain statusas an EB immigrant, or

B. 365 days have passed since the filing of an EB immigrant petition.

Once these requirements have been met, the alien may be granted an extensionbeyond the 6-year maximum on or prior to the date the alien reaches the 6-yearmaximum. Such extensions may only be granted in one-year increments, but maybe requested on a single (combined) extension request for any remaining timeleft in the initial 6-year period. ...

Based on the Yates memo, it would appear that a request for an H-1B extensionunder AC21 can be combined with another request. It therefore makes sense tocombine a request for recapture with a request for extension of stay under AC21.In the event that USCIS refuses to combine the recapture request with an AC21extension because an alien is not currently in the United States or is not currentlymaintaining H-1B status, they should at the very least grant the recapturerequest, allowing another extension of stay to be filed immediately thereafter,invoking AC21.

DOL Administrative Review Board Addresses When H-1B Employers Are Liable for Back Wages

In a September 29, 2006 decision by the Administrative Review Board (which isthe highest Administrative court within the Department of Labor to hear LCAissues), DOL addressed the issue of when an employer is liable for back wages. Inthat case, an H-1B employer had terminated an H-1B employee by notifying herof her termination. However, because the employer never notified USCIS that theemployee had been terminated (as is required by 8 CFR 214.2(h)(11)(i)(A)), andbecause the employer failed to pay the cost of the H-1B employee's returntransportation abroad (as is required by 8 CFR 214.2(h)(4)(iii)), the employerhad not made a bona fide termination for immigration purposes, and wastherefore required to pay the employee back wages, at the prevailing wage rate,until the expiration date on the H-1B petition. In order to avoid such liability, H-1B employers should notify USCIS in writing whenever an H-1B employee isterminated, and should pay the cost of the employee's return transportation tohis or her last place of foreign residence.