Abandonment of LPR (Green Card) Status (Part II)

In Part I, we touched upon principles and concerns surrounding the issue of abandonment as it generally relates to travel abroad and maintaining Legal Permanent Resident (LPR) or “Green Card” status.

Here, in Part II, we will briefly examine an unpublished Board of Immigration Appeals (BIA) decision in Saleh Mohammed Otaifah, A055 775 988 (BIA Jan. 26, 2015) as an example of how some of the principles discussed in Part I were applied by an Immigration Judge (IJ) and by the BIA to an interesting set of facts.

Under the facts of the decision, the LPR, Otaifah, is a native citizen of Yemen. Otaifah married and came to the U.S. based on derivative status to his wife – a child of a U.S. citizen.

Otaifah, unable to initially find work in the U.S., returned to Yemen, then came back to the U.S. where he found work for a period of time. However, Otaifah quit his U.S. job and returned to Yemen in July 2003. It was during this last trip to Yemen that Otaifah was arrested and jailed in 2004. 

Otaifah was subsequently acquitted of the charges in Yemen and released from jail. Sometime after his release, Otaifah returned to the U.S. in December 2010. Removal proceedings were thus initiated based on Otaifah’s extended absence (July 2003 – December 2010) from the United States.

At issue before the IJ during the removal hearing was whether Otaifah “intended to abandon his status or … his intent to actually reside in the United States” by virtue of his time abroad in Yemen viewed in light of other evidence regarding Otaifah’s comparative ties to the U.S. and Yemen. The IJ noted since Otaifah was in Yemen for over a year; “The Government is aided by the statutory presumption of abandonment of status by departure for more than one year.”

The IJ found Otaifah was arrested in 2004 and was freed from incarceration around September 2007. The IJ recognized the arrest and jailing for the period between 2004 and 2007 as an unforeseen event excusing Otaifah’s absence for this portion of his last stay in Yemen.

During the removal proceeding, Otaifah testified when he last departed for Yemen in July 2003, he intended to stay 7-8 months, then return. He maintained his failure to return was the result of being taken into custody in 2004 and so precluded from entering the U.S. until his release in December 2010. Therefore, a discrepancy in the evidence existed as to whether Otaifah was released in 2007 versus 2010. 

Nevertheless, the IJ decided Otaifah was freed from incarceration in 2007 and able to return to the U.S. during the period from September 2007 and December 2010. The IJ considered the multiple years between 2007 and 2010 an unexplained absence because Otaifah was free and able to return to the U.S., but did not do so.

Based on his finding, the IJ treated Otaifah’s unexplained absence from 2007 to 2010 as “a permanent resident status adopted but then abandoned by departure for an unexplained, lengthy period of time, well more than a year” and held Otaifah “in fact abandoned his lawful permanent resident status in the United States.” 

In so finding, the IJ considered evidence of Otaifah’s ties to the U.S. during the relevant time period(s) as indicia of his intent (or lack thereof) to maintain permanent residence in the U.S. including: Otaifah did not have a U.S. bank account; he had not paid U.S. taxes; he was estranged from his wife; Otaifah had a child who remained in Yemen; Otaifah was not close to his father-in- law; and, Otaifah had no property in the U.S., but property, a store, work, and land in Yemen. 

The IJ found relevant Otaifah’s first two stays in the U. S. were short (2-3 months). Otaifah was unable to find work during the first stay, and during the second – he found work but apparently quit after a short period of time. The IJ further noted Otaifah last flew to Yemen with no return air ticket to the United States.

The IJ was especially concerned Otaifah “came to the United States, left, came to the United States and left, he never appeared to have fully established himself in the United States; rather, it appeared that he was visiting the United States and returning to a domicile in Yemen.”

Consequently, the IJ ordered Otaifah’s removal to Yemen.  

Otaifah thereafter appealed the IJ’s order. On appeal, the BIA narrowly focused on the evidentiary inconsistency regarding Otaifah’s release date. Specifically, the IJ based his finding Otaifah was released in September 2007 on a prison release form dated 09/07, yet in the body of the form it states he was released in 2010.

Since Otaifah claimed he was released in 2010 – the BIA held the government (despite the presumption of abandonment) did not meet its burden to establish Otaifah, who was in Yemen between 2003 and 2010, intended to abandon his status as a lawful permanent resident. The BIA remanded for clarification as to the actual date on which Otaifah was released from prison in Yemen and thereby free to return to the United States.         

As discussed in Part I, the government must prove intent to abandon LPR status in the United States. The above case illustrates the interplay between factors relevant to finding intent including the length of time and frequency one spends abroad, the nature of those visits, the presumption of abandonment for absences in excess of a year, the importance of documentary evidence demonstrating strong and fixed ties to the U.S., and the importance of accurately documenting the temporary purpose of the trip abroad, or how an unexpected occurrence impeded return within a year. 

Sharma Law Offices, a highly rated immigration law firm, remains available to consult on matters affecting travel and status

Abandonment of LPR (Green Card) Status (Part I)

Maintaining Legal Permanent Resident (LPR) status requires intent to permanently reside in the United States. Accordingly, an LPR is subject to a removal order from an Immigration Judge if found to have “abandoned” intent to live in the U.S. permanently.

The issue of abandonment often arises when an LPR travels abroad. Although the LPR’s intent is controlling – the length of time and frequency one spends abroad are factors weighed by Customs and Border Protection (CBP) to readmit LPRs at the port of entry, and by Immigration Judges to determine whether the LPR abandoned intent to maintain permanent residence in the United States.     

As to length of time, absences in excess of 6 months may give rise to a presumption of   abandonment. Absences from the U.S. for a year or more are likely to face the greatest amount of scrutiny because, for one, the Permanent Resident Card or “green card” becomes technically invalid if the LPR is abroad for over a year. In these instances, the LPR may face a greater burden to overcome the presumption of abandonment than for those staying abroad for less protracted timeframes.

As to frequency, a LPR’s intent to maintain permanent residency may come into question if, for example, the individual lives abroad and routinely returns to the U.S. once every 5 months. Without more, an Immigration Judge may very well consider such person to have abandoned LPR status despite keeping stays outside the U.S. under 6 months.

There are certainly legitimate reasons for LPRs to remain abroad for long periods of time. To care for infirm or elderly relatives is one example. In such instances, presenting evidence to CBP at the port of entry demonstrating strong and fixed ties to the U.S. is important indicia of intent to maintain permanent residence and that the stay abroad was indeed for a temporary purpose.

Such evidence may include filing of income tax returns, family members in the U.S., property ownership, bank accounts, insurance, U.S. Driver’s license, and business affiliations. Things like returning to the U.S. on a one way ticket versus a round trip ticket may also be considered.

In addition, obtaining a reentry permit (valid for 2 years) if one knows ahead of time the stay abroad will exceed a year, or applying at a U.S. Consulate abroad for a SB-1 Returning Resident Visa in instances where the LPR is kept away longer than a year due to unforeseen circumstances, are potential preemptive options to consider. In either case, the LPR should be prepared to document the reasons for leaving the U.S., the temporary nature for the stay abroad, and the cause for not returning within a year.

As often the case, travel abroad raises many issues to consider. Having a plan in place to avoid unintentionally abandoning LPR status deserves consideration. Sharma Law Offices, a highly rated Atlanta immigration law firm, is experienced in these matters and is available for a consultation.

In Part II, we will discuss the unpublished Board of Immigration Appeals decision in Saleh Mohammed Otaifah, A055 775 988 (BIA Jan. 26, 2015) which is an example of how some of the principles discussed herein were applied by an Immigration Judge and the Board of Immigration Appeals.

What Is a Public Charge?

Determination that a person is a “public charge,” under U.S. immigration law has been used as grounds for inadmissibility and deportation of immigrants for many years, although deportations on public charge grounds are very rare because the standards are very strict. U.S. immigration officials use the term “public charge” in reference to a person who is considered primarily dependent on the government for assistance, specifically cash assistance in order to maintain an income or provide for institutionalization for long-term care.

Although an individual who is likely at any time to become a public charge is inadmissible to the United States and ineligible to become a legal permanent resident, receiving public benefits does not automatically make an individual a public charge.

The following is a list of cash assistance for income maintenance, which can be considered by immigration officials, and disqualify an immigrant, when determining whether an immigrant will be a public charge:

  • Supplemental Security Income;
  • Temporary Assistance for Needy Families (TANF);
  • State and local cash benefit programs that are for the purpose of income maintenance (often called “General Assistance” but which may exist under other names);
  • Long-term care benefits under Medicaid.

However, there are several other program which provide various assistance, and are not considered as a cash benefit for income maintenance purposes, such as:

  • All government health center programs;
  • Educational benefits (including Head Start);
  • Prenatal care;
  • Food Stamps;
  • WIC;
  • Child care assistance;
  • Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP);
  • Job training programs.

Eligible non-citizens can use all of the services listed above without fear that use of these services will be considered evidence of public charge status. It should also be noted that the totality of the circumstances are taken into account when the USCIS is deciding whether an immigrant is likely to become a public charge. These factors may include the alien’s age, health, family status, assets, financial status, resources, education and skills. No single factor will disqualify an immigrant from becoming a lawful permanent residence, as discretion is used, but the longer an alien has received cash income-maintenance benefits in the past, as well as the greater the amount of benefits, the stronger the implication that the alien is likely to become a public charge.

Modernizing PERM on DOL’s Agenda

In November 2014, the White House released a Presidential Memorandum directing agency heads to make recommendations for improving the U.S. immigration system. In tandem with the release of President Obama’s November 21, 2014 Memorandum, Department of Homeland Security Secretary Jeh Johnson also issued a Memorandum dated November 20, 2014, instructing the U.S. Citizenship and Immigration Services and U.S. Immigration and Customs Enforcement implement new policies and regulations designed to “support our country’s high-skilled businesses and workers by better enabling U.S. businesses to hire and retain highly skilled foreign-born workers while providing these workers with increased flexibility to make natural advancements with their current employers or seek similar opportunities elsewhere.” 

In addition to the above documents, the U.S. Department of Labor (DoL) contemporaneously released a Fact Sheet wherein the DoL acknowledges it has not comprehensively examined or modified the permanent labor certification requirements and process (PERM) since its inception ten years ago. As a result, the existing PERM regulatory structure may not align with evolved industry recruitment methods resulting from advances in technology and information dissemination.

Upon such recognition, DoL announced its intent (in the Fact Sheet) to initiate a review of the PERM program and seek stakeholder input on points such as: identifying occupational shortages and surpluses; modernization of recruitment requirements to test the labor market; clarifying the employer’s obligations regarding PERM positions and U.S. workers; case processing timeframes; the possibility of premium processing; and, the feasibility for efficiently addressing nonmaterial errors.

More recently, the DoL published modernization of the PERM process as part of its regulatory agenda. Therein, DoL noticed engagement in rulemaking to consider options to administer the PERM program in a manner more responsive to changes in the national workforce, to further align the program design with the objectives of the immigration system and needs of workers and employers, and to enhance the integrity of the labor certification process.   

Although much too early to celebrate, those familiar with the PERM application process should at least welcome the fact modernization of the PERM regulations is on DoL’s present agenda and is consistent with the thrust of the November 2014 memoranda by President Obama and Secretary Johnson. Sharma Law Offices will continue to monitor and report on material events relevant to DoL’s efforts in this regard.  

DHS Permits Part-Time F-2 and M-2 Study and Removes DSO Cap

In our May 29, 2015 article H-4 EAD for Certain Dependent Spouses Now in Effect, we reported on the Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS) new rule allowing certain H-4 dependent spouses of H-1B employees to apply for employment authorization. A stated purpose of the new H-4 EAD provision is to increase U.S. global competiveness for highly skilled workers through amelioration of disincentives, economic burdens, and personal stresses of H-1B employees and their families.

Effective May 29, 2015, the DHS also amended its regulations under the Student and Exchange Visitor Program (SEVP) to expand opportunities for spouses and children of international students to engage in a course of study. Similar to the H-4 EAD provisions mentioned above, enhancing U.S. global competitiveness for the best and brightest international students (highly skilled workers in the case of the H-4 EAD) is a basis for the May 29, 2015 SEVP amendments.

Essentially, under prior regulations, F-2 and M-2 spouses of academic or vocational students with F-1 or M-1 status were prohibited from engaging in “full time” academic or vocational studies. F-2 and M-2 children could only engage in full time study if the study was in an elementary or secondary (K-12) school.

Now, per the amended SEVP regulation, F-2 and M-2 spouses and children can enroll in less than a “full course” of study in a SEVP certified school. Less than a full course of study is typically considered study less than the 12 credit hours defining a full time course load. Full time elementary and secondary study for F-2 and M-2 children is still allowed.

In addition, under the old rule, SEVP certified schools were permitted to nominate a maximum of 10 designated school officials (DSOs) to act as liaisons between the school and the SEVP in order to ensure compliance with laws regulating international students. Now, SEVP certified schools are allowed to nominate as many DSOs deemed necessary to adequately provide services such as recommendations, record keeping, and reporting with respect to F and/or M students enrolled at the school. Again, one reason for lifting the 10 DSO cap is increased flexibility ultimately resulting in enhanced attractiveness for international students to study in the United States.  

Sharma Law Offices, a highly rated Atlanta Immigration Law Firm, actively monitors rule amendments – like those discussed above – which potentially expand rights afforded under prior regulations. We are, of course, available for consultation regarding applicability to your particular set of circumstances.

BIA decision on Priority Date Retention at Odds with Longstanding USCIS Policy

Recently, the Board of Immigration Appeals (BIA) issued a non-precedential decision – In re: Grace Estrellado – that merits attention because the result appears contrary to the U.S. Citizenship and Immigration Services’ (USCIS) policy regarding priority date retention.

More specifically, under past practice, USCIS allows a beneficiary of a new I-140 to retain the priority date from a previously approved I-140 petition after the first I-140 was withdrawn or revoked as a result of the beneficiary’s move to a new employer. An exception to this policy occurs when the original I-140 is revoked based on a government finding of fraud or willful misrepresentation. In another related scenario, USCIS allows for priority date retention occasioned by the beneficiary’s “upgrade” to a different employment based category (i.e., EB-3 to EB-2) than originally approved.

The ability to retain the priority date applicable to an earlier approved I-140 is significant because it enables the beneficiary to change positions or employers without prolonging the wait for a green card based on a later priority date applicable to more recently approved I-140 petition. In the case of an “upgrade”, EB-2 priority dates may become current sooner than the EB-3 category. Therefore, a beneficiary may obtain a green card more quickly if the priority date applicable to the previously approved I-140 (EB-3) ports to a subsequently approved 1-140 under the EB-2 classification.

Under the facts of In re: Grace Estrellado, the respondent, Grace Estrellado, was the beneficiary of an approved I-140 petition with a 2006 priority date. Ms. Estrellado subsequently obtained another job and was sponsored by the new employer for a green card. As a result, Estrellado became the beneficiary of a second approved I-140 with a 2011 priority date. Estrellado argued the 2006 priority date should apply to the new I-140 and enable her to immediately adjust status because the old priority date had since become current. However, the Immigration Judge, and the BIA on appeal, determined Estrellado was not eligible to retain the 2006 priority date because the first I-140 had been withdrawn by the earlier employer and its approval thereafter revoked. In so holding, BIA appeared to strictly apply regulations stating revoked petitions do not confer priority dates totally apart from the context of longstanding USCIS interpretation and policy allowing for (in the absence of fraud or willful misrepresentation) priority date retention in instances where the predecessor I-140 had been revoked by operation of changing employers.

It is important to emphasize In re: Grace Estrellado is a non-precedential BIA decision and, as such, is only binding as to the four corners of that particular case. Nevertheless, the holding – that the beneficiary may not utilize the priority date from her original I-140 petition because her prior employer withdrew the I-140 and its approval was thereafter revoked by USCIS – appears to ignore (or affords no weight) to prior government practice to the contrary.

The above case illustrates past government practice is not a guarantee and is – at times – subject to piecemeal and seemingly inconsistent interpretations. At Sharma Law Offices, we strive to keep current with respect to such contingencies, and likewise advise consultation with an experienced immigration attorney prior to a changing one’s employment status.

H-4 EAD for Certain Dependent Spouses Now in Effect

Effective May 26, 2015, the Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS), under its new final rule, began accepting applications for employment authorization for certain H-4 dependent spouses of H-1B employees who seek employment-based lawful permanent resident (LPR) status. The USCIS has accordingly amended its Instructions for I-765, Application for Employment Authorization, and corresponding I-765 application form (revision date February 13, 2015), to incorporate the new regulation.

Under prior regulations, H-4 spouses were not eligible for employment authorization. Now,  under the new rule, H-4 spouses are eligible for employment authorization documents (EADs) if the H-1B employee is the principal beneficiary of an approved Immigrant Petition for Alien Worker (I-140) or the H-1B employee received an extension beyond the six year H-1B maximum via a Permanent Labor Certification Application (PERM) filed at least 365 days prior to expiration of the 6 year limitation or if the H-1B’s preference category does not require a PERM, and he or she filed a currently pending I-140 at least 365 days prior to the 6 year expiration date.     

In a news alert on May 20, 2015, NewsAlert! H-4 EAD FAQ’s released, we announced the USCIS updated its webpage with eligibility requirements, filing guidance, and frequently asked questions (FAQs) with respect to its new H-4 employment authorization rule. Here, we will provide an overview of some of the more effectual aspects of USCIS’ FAQs/guidance as follows:

  • Filing for an H-4 EAD is not a one time opportunity. One may file after May 26, 2015, and may file to renew as long as eligible;
  • There is no cap on the number of I-765 (H-4 EAD) applications;
  • 90 days is the expected processing time for H-4 EAD applications;
  • Presently, H-4 EAD applications are only accepted in paper form (i.e., no electronic filing) and premium processing is not available;
  • In order to apply, one must be currently in valid H-4 status. An individual outside the U.S. cannot be in H-4 status. Therefore, one must be physically present in the U.S. to apply for an H-4 EAD;
  • If approved, the H-4 EAD expiration date will generally match the H-4 status expiration date;
  • Initial H-1B and H-4 petitions/applications may be filed concurrently with an initial H-4 EAD application – however, the 90 day clock for the H-4 EAD application will not begin until a decision on the underlying H-1B and H-4 applications;
  • H-1B and H-4 extension of stay applications (I-539 Application to Extend/Change Nonimmigrant Status) may be filed concurrently with an H-4 EAD application – however, if a previously filed I-539 is pending – USCIS recommends waiting until the pending I-539 is decided until filing an H-4 EAD application in the first instance;
  • Both the H-4 EAD applicant spouse and the H-1B spouse must maintain status for H-4 EAD eligibility – therefore, absent extensions of stay, H-4 spouses are not initially eligible for an EAD if USCIS revoked the H-1B’s I-140 petition;
  • It is not necessary for the H-1B spouse’s approved I-140 to have been filed by his or her current employer in order for the H-4 spouse to be eligible for employment authorization;
  • USCIS retains discretion to revoke an H-4 EAD if the H-1B spouse subsequently loses an approved I-140 or is otherwise no longer eligible for H-1B status;
  • The H-4 EAD authorized under the new rule is “unrestricted” and, as such – is not limited to a specific employer, allows self-employment and starting one’s own business, and the H-4 spouse and/or business may employ other people;
  • Travel abroad is permitted for an H-4 EAD applicant who is in valid H-4 status – but the applicant remains responsible for timely providing USCIS additional evidence or responding to notices associated with the application while out of the country;
  • If not in current valid H-4 status, such as when an H-4 EAD application and I-539 are filed concurrently requesting a change to H-4 status – travel abroad results in abandonment of the I-539 and therefore denial of the companion H-4 EAD application; and
  • An H-4 EAD is not a travel document – if traveling abroad, individuals need separate travel documents such as a passport and H-4 visa to return to the United States.

The above is a synopsis of some of the operative USCIS FAQs with respect to the newly implemented H-4 EAD regulation. We condense and summarize them here as a service to our readers. It is not intended as legal advice. The USCIS’ interpretations as to how it administers the new H-4 EAD rule and attendant application process may also evolve over time. We at Sharma Law Offices, LLC, stand ready to assist you with any questions you may have regarding your particular set of circumstances.

NewAlert! August 19, 2015 Deadline For Filing Amended H-1B Petitions

As reported in our previous blog Worksite Change Requires Amended H-1B Petition, the U.S. Citizenship and Immigration Services (USCIS) on May 21, 2015 rendered written guidance on when to file an amended H-1B petition based on its interpretation of the Simeio Solutions holding. 

To recap, in Simeio Solutions, the AAO determined a geographic change in an H-1B employee’s worksite location constituted a material change and required both a new Labor Condition Application (LCA) and an amended Form I-129 or H-1B petition.

Under the facts in Simeio, the H-1B employee moved from the worksite identified on the original LCA and H-1B petition to two different worksites each located in different Metropolitan Statistical Areas (MSAs) than originally listed. The AAO emphasized the prevailing wage delineated in the employee beneficiary’s original filings were tied to the geographic area of employment. One reason changing the employee’s authorized place of employment effectuated a material change was because the beneficiary’s salary reflected in the original filings was based on a prevailing wage less than applicable to the new worksites. Accordingly, the AAO determined the H-1B petitioner was required to “immediately notify USCIS and file an amended or new H-1B petition, along with a corresponding LCA certified by DOL, with both documents indicating the relevant change.” 

The May 21, 2015, USCIS Guidance expounds upon the Simeio Solutions decision and instructs when to file an amended H-1B petition after a change in worksite location.

Importantly, the Guidance applies retroactively and requires amended H-1B petitions for employees changing worksite locations before May 21 and also for relocations at or before the Simeio Solutions decision dated April 9, 2015. The USCIS allows 90 days from the May 21 Guidance, or until August19, 2015, to “file amended petitions for H-1B employees who changed their place of employment to an MSA or area of intended employment requiring coverage by a new or different LCA than that submitted with the original H-1B petition.”

Under the Guidance, the H-1B employee does not need to wait for a final decision and can immediately begin work at the new location once the amended H-1B petition is filed. Moreover, if the amended petition is denied, the H-1B employee may return to the worksite covered by the original petition as long as the H-1B employee is able to maintain status at the original worksite. The petitioning employer and beneficiary employee may both be subject to adverse action if an amended H-1B petition is not filed for an H-1B employee who relocates to a worksite outside the MSA by August 19, 2015.

The USCIS Guidance also provides for instances when an amended H-1B petition is not required, that is: 1) when the geographic move is “within the same MSA or area of intended employment”; 2) when the geographic move is for short-term placements up to 30 days (or 60 days in particular situations); or, 3) when the employee is only traveling to certain types of non-worksite locations such as for seminars or on a casual short term basis where the primary job site remains intact.   

Please feel free to contact the Sharma Law Offices regarding any issues raised by the content of this blog as it relates to your particular set of circumstances, or for assistance with other H-1B matters of concern.

NewsAlert! H-4 EAD FAQ’s released

We are delighted to announce that few minutes back the U.S. Citizenship & Immigration Services (USCIS) updated their webpage with information on Employment Authorization for Certain H-4 Dependent Spouses. This webpage includes eligibility requirements, filing guidance and answers some of the frequently asked questions (FAQs)

We are in the process of reviewing the information provided by the USCIS and will shortly post detailed information for our clients.

Employer Responsibility for Terminating H-1B Employees (Update)

In our February 9, 2014 blog Employer Responsibility for Terminating H-1B Employees, we discussed an employer’s responsibility for ending the employer/employee relationship of H-1B employees. In that blog, we explained an employer must effect a bona fide termination of an H-1B employee’s employment in order to avoid back wage liability. At the time of the blog, the leading decision on this subject was the Department of Labor, Administrative Review Board’s (ARB) holding in Amtel Group of Fla., v. Yongmahapakorn. In Amtel Group of Fla., the ARB panel of administrative law judges set forth three requirements to effect a bona fide termination of H-1B employment and end an employer’s obligation to pay wages promised under the terminated employee’s Labor Conditional Application (LCA): (1) expressly terminate the employment relationship with the H-1B employee; (2) notify the United States Citizenship and Immigration Services (USCIS) of the termination so that the I-129 petition may be cancelled, and; (3) provide the terminated H-1B employee the reasonable cost of return transportation to his or her home country.

Subsequent to our February 2014 blog, the ARB issued another important decision in Batyrbekov, v. Barclays Capital. In Barclays Capital, the ARB panel addressed a situation where a terminated H-1B employee sought back wages on the theory his former H-1B employer did not effectuate a bona fide termination under the three-part test set forth in the Amtel Group of Fla. decision. More specifically, the employer in Barclays neglected to notify USCIS of the H-1B employee’s termination and did not initially pay for the employee’s travel home. However, under the facts of the Barclays case, the terminated employee’s H-1B employment status was transferred (or “ported”) to another employer via an approved H-1B “change of employer” petition. The ARB in Barclays found the three-part test in Amtel does not govern a situation where a new employer obtains USCIS approval to hire the terminated H-1B employee after the previous employer has given clear notice of termination to the H-1B employee.

Thus, to synthesize the two ARB decisions: (1) the Amtel three-part definition of bona fide termination does not strictly apply to cases with multiple H-1B employers; and, (2) in cases involving multiple H-1B employers, back wage liability may cease if the employer expressly notifies the H-1B employee of termination and the employee thereafter secures USCIS approval for a change of employer.

The above is a synopsis of the Amtel and Barclays ultimate conclusions which were, in turn, based upon the totality of many facts underlying each decision. Each individual H-1B termination will present a unique set of circumstances that may require detailed legal analysis by an experienced attorney. Despite the ruling in Barclays Capital, we still recommend H-1B employers to abide by the three-part definition laid out in Amtel.