AILA has received a number of comments in response to a recent practice advisory, "H-1Bee Sting: How the Current Economy Effects Foreign National Employees." The Practice Advisory offers what some consider to be an overly cautious perspective on the employer's responsibilities, not all of which are mandated by the law. Let me offer this elaboration of the practice pointers made in the article.

Return Transportation of Terminated H-1B Employee

The employer's return transportation responsibility under 8 CFR §214.2(h)(4)(iii)(E) is unclear. The INS has not enforced the regulation and does not, itself, appear to clearly understand what is required. [For lack of enforcement arising from INS General Counsel's opinion that Congress had failed to give INS adequate enforcement authority, see 70 Interp. Rel. 1171, Sept. 3, 1993]. As late as July 26, 1999, the Service remained unwilling to consider the transportation commitment between an employer and H-1B employee as anything other than a "private contractual issue between the petitioner and the beneficiary" [See, letter from Thomas Simmons, Branch Chief for the INS Business and Trade Services Branch, reproduced at 76 Interp. Rel. No. 28, Appdx. II]. When a terminated employee secures new employment, for example, it would seem clear that any responsibility of the employer for return transportation would cease.

Continuation of Compensation Following Layoff

This area also has suffered from lack of clarity by the implementing agencies. The Department of Labor-in its Interim Final Regulations (IFR) covering the Labor Condition Attestation, at 65 Fed Reg. 80171-seemed to provide that notice to the INS, following termination, was a condition necessary for a lawful termination of employment to occur, and absent such a notice, the duty to compensate the H-1B beneficiary continued. This position was criticized by AILA in its comment on the IFR. In a DOL/AILA Liaison meeting of January 16, 2001, the DOL backed away from its IFR position, agreeing that the employer's duty to compensate ends where the employment relationship ends, as evidenced, for example, by a letter of termination (see liaison minutes on InfoNet: AILA Doc. No. 01012501). As recent as March 27, 2001, Efren Hernandez, III, Director of the INS's Business and Trade Services Branch, stated, "While Service regulations do not currently require that an employer notify the Service and revoke the [H-1B] petition upon termination of the alien, many employers do, and this is the ideal practice in this situation." 78 Interp. Rel. 616 April 2, 2001. It would seem that the focus of counsel's attention ought to be on documenting the actual termination of employment, versus ensuring that the INS is notified or that the H-1B petition is revoked.

The 10-Day Myth

The Service's position on the existence of a grace period for laid off H-1B workers has not been markedly clarified by its conflicting communications on the subject. Compare INS's reported statements to Wired News, which may be viewed on the Internet at: www.wired.com/news/politics/0,1283,42439,00.html ("Yes, there is a grace period"); with the exchange of correspondence between Efren Hernandez, III and New York City attorney Wendi S. Lazar reported at 78 Interp. Rel. 608, April 2, 2001 ("We don't care what Wired thinks that we said, no, there isn't a grace period"). And the most recent pronouncement on the subject contained in the Service's letter of June 19, 2001, (reproduced at 78 Interp. Rel. 1109, July 2, 2001) ("No, there isn't a grace period, but we really should have one and will propose, oh, probably about 60 days, OK?")

Hiring of Laid-Off H-1B Workers

The statutory requirements specified for an individual to be "ported" to a new H-1B employer are:

1. That the nonimmigrant has been lawfully admitted to the United States;

2. That the nonimmigrant has been previously accorded H-1B status;

3. A nonfrivolous petition for new employment have been filed before the end of their period of an authorized stay; and

4. The nonimmigrant has not been employed without authorization between the time of his lawful admission to the United States and the filing of the nonfrivolous petition.

Whether these employees have received any form of severance from their previous employer, these rules do not seem to prohibit a laid-off employee from porting to work with a new employer, nor do they seem to require that the alien even be in an H-1B status at the time the new H-1B petition is filed.

________________

Courtesy of Howard "Sam" Myers, Chair of AILA's Publications Committee. Text also can be found on InfoNet: AILA Doc. No. 01122690.