CIS suspended premium processing for H-1B extensions from May 26, 2015 to July 27, 2015. http://www.uscis.gov/archive/archive-news/uscis-temporarily-suspends-premium-processing-extension-stay-h-1b-petitions, and update per AILA Doc. No. 15051970 (Posted 5/26/15). Extensions include not only your client’s already currently employed H-1Bs but also any newly hired H-1B from a prior H-1B employer. Requesting employment only to the balance of this latter H-1B’s current term is still an “extension” in the eyes of the CIS. See, e.g., the language of the I-797 approval notice refers to “extension” and see the choices on form I-129 Part 2:

Item Number 2. Basis for Classification:

New employment

Continuation of previous approved employment without change with the same employer

Change in previous employment (with same employer)

New concurrent employment

Change of employer (the choice directed by the instructions to the form)

Amended petition

Item Number 4. Requested Action(s pertinent to H-1B):

Consular notification

Change status and extend stay

Extend stay (seemingly the only pertinent option when porting)

Amend stay

See also INS Issues Qs & As on AC21 (November 21, 2000), AILA Doc No. 00112901 dated November 29, 2000 Q12 in which INS [now CIS] treats porting H-1B as an “extension”.

Thus, an employer hiring an H-1B from another employer will have to rely upon AC21’s portability for work authorization to start any time sooner than the months of regular processing time to get an actual hard copy approval until premium processing is reinstated. Per AC21 the porting H-1B is authorized to accept new employment [note the term of employment may start later] as soon as the I-129 is filed in compliance with INA 214 (n), 8 USC §1184(n). So what do you do for I-9 verification when relying on AC21 for work authorization?

While no acceptable documents are readily apparent on the I-9’s lists of acceptable documents they become so with a little annotation. The CIS’ M-274 Handbook for Employers - Guidance for Completing Form I-9 gives these instructions re porting H-1Bs:

“An H-1B employee’s Form I-94/Form I-94A issued for employment with the previous employer, along with his or her foreign passport, would qualify as List A document. You should write ‘AC-21’ and enter the date you submitted Form I-129 to USCIS in the margin of Form I-9 next to Section 2.”

Please note, however, that despite the AC21 statute, the M-274 and various memoranda, Liaison Qs & As and such since AC21 , the start date for employment may be later than the filing date since the employment term cannot start sooner than the term in the lca and the I-129 petition’s requested term within it. CIS should be aware that the actual start date may be later. See AILA Verification Committee Advises on Work Authorization Under H-1B Portability AILA Doc No. 10102268 dated October 22, 2010 in which the Office of Chief Counsel at USCIS refers to beginning employment“as described in the petition”. Thus, a more accurate annotation might state “AC21 filed [date] for [start date]”, and have handy a copy of the I-797 receipt to prove filing date and the lca.

If an employer using E-Verify should get a tentative nonconfirmation, the H-1B can still start on the authorized date while seeking confirmation.

Reprinted with permission.

About The Author

Margaret C. Makar Margaret C. Makar has been practicing immigration law 100% since 1990 emphasizing business and employment based immigration and also serving individuals in their family immigration matters and naturalization. Her typical client is the Human Resources Department of a corporation. Visa work includes H-1B for professional workers (scientists, engineers, and more), TN and H-1B1 Free Trade, E visas, L for executives, managers and specialized knowledge employees, the labor certification process and "green card" applications. She also advises on I-9 employment verification compliance. Margaret writes the chapter on I-9 compliance in the Colorado Bar Association’s Employment Law Handbook. Her preceding professional experience in the government and corporate sectors has proven very beneficial in understanding and responding to corporate clients’ needs and effectively communicating with government agencies.

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