Due to changes in our industry, my hours are being modified and I am considering a leave of absence. I understand that it may be necessary to change or refile my current H-1B case. How do I know whether or not such filing is necessary? If the company conducts layoffs, will the H-1B workers necessarily be the first to go?

This is perhaps one of our most Frequently Asked Questions! The answer is complex, but we'll give it a shot. As always, please remember that, by necessity, we are speaking in generalizations; if your attorney disagrees, believe him/her instead of us, provided he/she can show you why our comments don't apply in your situation. We are even including specific legal citations in this FAQ since many, many attorneys seem to think our opinions on this subject are incorrect...hopefully, they will read the cases we cite and confirm that our position on this is indeed accurate.

First of all, let's talk about what DEFINES the rules. In order of preference and reliability, the following items define what the government's position is on a legal matter:

1. Laws, drafted by Congress, and signed by the President
2. Agency rules and regulations, written by and implemented by the specific government agency
3. Judicial decisions ranging from lower administrative courts to the U.S. Supreme Court (which, can, along with certain other federal court decisions, invalidate an existing law or regulation (#1 or #2)
4. Interpretive agency memos or opinions regarding issues not defined by regulation or law
5. Letters of response to AILA or individual companies or attorneys.

Obviously, the "clout" descends from one to five, and, more often than not, exact standards affecting the issues asked in the FAQ are not present. The situation then calls for intelligent, conservative interpretation of the regulations while balancing business reality. For example, I know attorneys who categorically tell ALL H-1Bs that ANY change is "material" and requires a new petition. This is simply untrue in many cases. Is the lawyer being greedy and simply generating an unnecessary fee? Maybe... Is the advice prudent and conservative? Maybe... Will a lawyer ever get in trouble for ignoring the financial cost to his client and selecting the most conservative path of procedure, even if it is legally unnecessary? Doubtful. It's easy to understand why so many firms would rather simply tell the client to refile at ANY change, when the alternative is the legal mumbo jumbo we are analyzing here!

Okay, so that's the order of the preference. Here's where we stand: while the law requires the filing of a new H-1B petition in cases involving a "material change in employment," nothing in the law or regulations really defines "material," so we are left with a mishmash of secondary sources. Since that is messy, let's deal with the last part of the question first: if layoffs come, do H-1B's necessarily go first?

The short answer: No. The Labor Condition Attestation sets forth the criteria for the prospective hiring of H-1B professionals, and it talks about PRIOR layoffs or conditions adversely affecting U.S. Workers. Under the provisions of the "American Competitiveness and Workforce Improvement Act of 1998" - the most recent H-1B legislation which, among other things, raised the annual cap - a new class of employer was defined: the "H-1B Dependent Employer," defined as a company with:

• 1-25 full time equivalent (FTE) employees in the U.S. and more than 7 H-1Bs
• 26-50 FTE employees in the U.S. and more than 12 H-1Bs
• More than 50 FTE employees in the U.S. and 15% or more of those are H-1B

For companies falling into this subdivision, the new law defines the layoff attestation as laying off a U.S. worker from a job that is essentially equivalent to the job for which the H-1B is sought. This means the same responsibilities, and to be "essentially equivalent," the U.S. employee must have had substantially the same equivalent qualifications and have been working in the same area of intended employment. This last point is really important:

Say company A loses a contract in New Orleans and must dismiss 10 U.S. workers via layoff; if a new opportunity elsewhere arises, they CAN staff it with H-1B professionals.

The benchmark set in Section 412 of the Act is that "the employer did not displace and will not displace a United States worker...employed by the employer within the period beginning 90 days before and ending 90 days after the date of the filing [of the H petition.]" This applies to the H-1B dependent employers ONLY, as does the provision which requires that the 5 year period prior to filing did not have any "willful failures or misrepresentations" involving the process. (There are a variety of other issues addressed in the law, all designed to punish employers who reduce opportunities for U.S. workers. However, for brevity's sake, I am focusing only on those most relevant to the issue at hand.)

To me, perhaps the most key clause is in section 412(b)(1)(4)(B), where the term "located in the same area of employment" appears. It seems that this is the issue of most concern to our rehab clients, who are experiencing a dramatic change in work environment due to federal reimbursement changes.

From a legal standpoint, even H-1B "Dependent" employers, accordingly, are permitted to lay off American workers and H1Bs in the order they see fit, provided other labor law considerations are complied with. There is no requirement that all H-1Bs must be terminated prior to layoffs of U.S. workers. (Readers: please understand that we are not endorsing or criticizing the actions of employers who choose to terminate one group of workers over the other. The U.S. Department of Labor, in its mandate, seeks to protect U.S. workers. We are simply stating the technical legal response here, and it is up to each individual employer to make the difficult decisions regarding layoffs. Our key point is to demonstrate that the employer has the freedom to make the most sound business decision in the matter, whatever that may be.)

Okay, now that that's settled, let's get to the nitty gritty: under what circumstances in the change of an H-1B position is an amended petition REQUIRED? As I mentioned above, we have a "mishmash" of secondary sources which provide the ONLY guidance attorneys have in advising corporate clients on what exactly constitutes the "material change" necessitating a refiling. Here's what we've got, in no particular order:

• INS' Yvonne LaFleur, Chief of Nonimmigrant Branch at the Office of Adjudications, responds in a letter dated October 12, 1995 to an inquiry by Boston attorney Susan Cohen. A material change, says Ms. LaFleur, is a change which directly impacts on continued H-1B eligibility and such determination is made on a case-by-case basis. In that situation, a promotion to a higher position did not, according to Ms. LeFleur, require an amended H petition.
• Vol. 73, No. 35 September 16, 1996, Interpreter Releases, included the summary of a Policy Memorandum issued by INS, following up on an earlier 1992 memo. In the memo, the following is clearly stated:
  
  The mere transfer of the beneficiary to another work site in the same occupation does not require the filing of an amended petition, provided the initial petitioner remains the alien's employer and the supporting LCA remains valid. The process of filing an amended H "was not devised as an avenue to advise the Service of minor, immaterial changes in the conditions of the alien's employment which do not affect the alien's eligibility for the classification."

Think about this for a minute - they are saying that if the underlying H eligibility is not threatened, then we should:

"...apprise the Service of these minor, immaterial changes when applications for extensions of the beneficiary's status are filed..."

The memo discussed those clear situations which ARE material and require refilings: a new employer, a change in work site for a location for which there is not an approved LCA, when there is a company merger, and when the job changes. Clear as day to us.

So, if Company A hires Joe and we file their petition stating that Tampa will be the primary worksite but that there will be unanticipated outside assignments, and we have approved LCA's for those locations at the time we file the petition, Joe can move between those locations as the company's needs change, provided all prevailing wage and posting requirements for each LCA area are satisfied.

Ms. LeFleur issued yet another useful opinion in a letter dated April 29, 1996 to attorney E. Vance Winningham. The question: if Joe goes to work for company A, then gets a short term approval for Company B and moves to that job full time for 6-8 months, can he return to A afterwards? Every attorney we talk to tells clients that the prior petition is invalid and must be refiled....BALONEY! As Ms. LeFleur and others who have read the clear language of the law on this point have noted, an H-1B petition remains valid until revoked by the INS or the employer goes out of business or files a written withdrawal. The petition remains valid despite the approval of the new petition.

Let's go back further for something more authoritative: INS Executive Associate Commissioner Hogan wrote Operations CO 214h-C on October 22, 1992, after IMMACT 90 - our current version of the law - was well in effect. The bottom line (and I am paraphrasing, not quoting):

A new or amended petition is not needed when: (1) the person is transferred from one branch of a firm to another branch of the same firm...

Clear as day, right? Well, no. In 1994, Jackie Bednarz, Chief of NIV operations, released a letter saying that changing locations for the same employer requires an amended petition...however, subsequent INS and DOL comments indicated that if a new LCA is not needed, you don't need an amended petition. (If you are keeping score, our position has considerably more history in its favor.)

And what about reduction of hours: INS defines full time employment as 35 hours, but does an H-1B have to be a full-time employee? Absolutely not. It doesn't say so anywhere in the regulations and we have had dozens of part time H petitions approved over the years. Yet, over and over again, we get emails from folks who have been advised that dropping to part time invalidates their H status...not so! Now, however, when is the reduction of hours "material?" Well, again, we are on our own, but a conservative benchmark is the 35 hours...if you are going from full time to part time in the eyes of the INS, the change is probably "material" and you'd better file an amended petition. But a cut from full time to, say, half time, is NOT the end of the world! You can file an amended petition and drop to part time until the approval comes in... which brings us to yet ANOTHER popular disagreement with our view:

Example: Joe is working for company A, which indicated in the filing that he would only be working in City One. Now, his position has been eliminated but they need him across the country for a position with the same employer in City Two. DOES HE HAVE TO WAIT TO GET THE APPROVAL OF THE AMENDED H BEFORE MOVING?

I guarantee that if you ask 10 immigration attorneys that question, they'll tell you "yes." We disagree, and here's why: pursuant to the regulations, a material change TRIGGERS the need for an amended petition. It is "post-change" by definition since the event which changes the nature of the H-1B position CAUSES the need for the refiling. There is no need to refile until the change has occurred. By filing the amended H petition on a timely basis - we do them within 10 days of the change - after the change in employment conditions, the employer is fully complying. Would the INS like to know about the change beforehand? Sure! Is it better to anticipate the change and do the filing as early as possible? Absolutely! Is it illegal for the employer to make a change in worksite - or any other "material change" necessitating refiling - prior to the approval of the change by the INS? We do not think so, and neither do the handful of INS officers I have discussed this with. Their position, and ours, is that the refiling is a "timely extension," just as when you file at the end of the current H status, and the employee can keep working for 240 days, even if the INS approval is delayed.

Remember: the process of filing an amended H "was not devised as an avenue to advise the Service of minor, immaterial changes in the conditions of the alien's employment which do not affect the alien's eligibility for the classification." For a minute, carry the logic of those attorneys who disagree with this to the logical extreme. Joe gets promoted from Physical Therapist to Facility Rehab Director and gets a $10,000 raise and change in job duties...is this "material?" You bet! So does INS expect the employer to keep Joe from the promotion until it approves the change? Of course not! The word "material" has been extrapolated to mean just about anything, but there is a difference between materiality as it creates the need for refiling and INS' fundamental understanding that if the person is STILL qualified to do what they do as an H-1B, the job can continue. We acknowledge to those who disagree with our view that our opinion is based on the interpretation of conflicting opinions, but we do believe there is more to support this view. In 9 years of making these recommendations, we have NEVER had a client considered out of status for transferring to a new location prior to receiving approval.

Whew! Aren't you glad you are not an immigration attorney? Others count sheep to sleep, we count pending provisions....

Last but not least: the proverbial "leave of absence"...when is it permitted? Prior DOL regulations indicated that if the benefit offered to the H-1B was the same as that offered to U.S. workers - say, for example, a three month maternity leave - then this was fine. However, you couldn't give involuntary leave - what the IT industry calls "benching" - and pretend it was a leave of absence. The new law's provisions state that:

The employee arriving on the H MUST be paid within 30 days of arrival in the U.S. or 60 days after a change to H-1B status for those already in the U.S.

Voluntary absences - traveling to India to spend a month or two with a sick aunt - is fine, provided it is documented as such.

Okay, folks, there you have it. For the record, please note that I will NOT get into a "chess match" with attorneys regarding these issues as, ultimately, without specific law, these are all opinions. I am simply telling you what has worked for us and our clients; your attorney may well disagree...whatever works for them works. A final thought: every INS enforcement proceeding my corporate clients have faced has been resolved via proof of good faith effort, and my clients have NEVER been fined or otherwise punished after investigation. The beneficiaries of these petitions have NEVER been considered out of status for proceeding as we have advised. Absent specific INS policy discounting the history of opinions expressed by the Service in the past, we will continue to do what works for our clients...