Businesses beware: USCIS is shaving time off of H-1B workers’ status
One of the government’s recent attacks on business immigration is the whittling away of the H-1B status validity period for certain employees. When an H-1B worker is changing job locations, and therefore requires an amended petition to be filed, U.S. Citizenship and Immigration Services is taking that opportunity to shorten the worker’s H-1B status—even where the worker already holds an approved petition for a longer period.
This change in longstanding policy is especially affecting companies whose foreign national employees often move around the country from one project to the next.
H-1B workers are eligible for a maximum six years in H-1B status (with some exceptions), which is typically granted in two three-year increments. However, USCIS has recently taken the position that H-1B workers are no longer eligible for their current duration of H-1B stay when they intend to provide services to a third-party for a shorter period of time.
When an H-1B worker needs to change work locations, the petitioning company must first file an H-1B amendment, reflecting the worker’s new location. When the change in work site is pursuant to a contract between the petitioner and the petitioner’s client (a third party), the contract (or “statement of work”) is typically submitted as supporting evidence with the H-1B filing. If the contract indicates that the work assignment is shorter than the worker’s current H-1B status, USCIS is now only approving the status until the contract’s end date.
These shortened validity periods have created new challenges with some odd results. By the time USCIS approves the H-1B petition and notifies the petitioner of the approval, the worker’s H-1B status is typically soon to expire within months or even weeks. There have also been instances where the H-1B worker’s status had already expired by the time the petitioner received the approval notice.
As a result of this trend, companies are bearing increased costs in legal and government filing fees because they must now file extensions of stay requests for their employees more frequently. In addition to financial costs, companies are more at risk of losing talent, either to a competitor whose business model is less reliant on the worker’s immigration status or because the employee must leave the country when his or her status expires earlier than anticipated.
Now more than ever, foreign national employees are on edge about their immigration status, and companies are increasingly going to the courts to resolve these issues. A lawsuit filed in 2018 that challenges USCIS for shortening the normal three-year validity period of H-1B status has now reached a federal appeals court. While the legal case may provide relief in the long-term, in the meantime, companies are encouraged to work with their BAL professional to consider strategies to overcome shortened H-1B approvals.
Melissa Salvador is an Associate Attorney in the Dallas, Tex. office of Berry Appleman & Leiden LLP.
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