How our immigration system stifles career progression and economic growth
Well you have just been chosen in the H-1B cap lottery. You imagine beginning your new career and picture a bright future with your company. Your company hopes that you are a top performer and if so, has great plans for you. You then begin planning for the day when the company will agree to file a PERM application. You want to establish a priority date as soon as possible because you feel so unsettled in a non-immigrant status. You worry about starting a family, applying for a mortgage and just living a normal life.
You decide you are going to work hard, maybe 60 hours when your employer asks for 40. You are going to contribute ideas and processes that your Manager adopts. The company recognizes your performance and rewards you with a promotion and agrees to file for PERM. The first hurdle is how to overcome the issue that all your experience has been gained with the petitioning employer. Not to worry, your employer has promoted you to a position where the job duties are at least 50% different then the initial H-1B position. (More on this in a later post)
The issue then becomes how to draft a PERM job description that will stand the test of time. Some call this PERM longevity. With normal career progressions, company re-organizations, technological advances and change in market conditions ultimately job duties change. Keep in mind the PERM application is only valid for the position for which it was filed. If you are in one of the severely backlogged employment based visa categories, is this the position you want to stay in for over 10 years? Is this where the employer sees you progressing many years from now? Does the employer intend to file multiple PERM applications over the span of your career spending thousands of dollars? The Employer and the worker need to think these things through when planning the PERM filing.
Of course the Employer can file a PERM application for a position where they see you in the future IF you meet the minimum requirements now. However, many of these future positions require additional experience you don’t have. So for arguments sake the PERM is filed and approved and the I-140 is filed and approved. Now you look ahead to the long wait. Good news, after three years your employer is promoting you? Not so fast. If you are eligible to port under AC-21 (again for a later post), it may not be a problem. We are assuming here for arguments sake you are not leaving the original employer. If you are, then a new PERM is the correct strategy. Let’s assume you are working your way up the ladder of success in the company that filed the PERM.
What if you are not AC-21 eligible? If there is a substantial change in duties, the H-1B needs to be amended in order for you to accept the new position. Would an employer pass you up for a promotion because of the expense of an amendment? How many amendments will have to be filed before your priority date becomes current? Will the Employer have to file a new PERM application? How does all this affect when and whom an employer chooses for promotions.
The answer is yes if you are not eligible for AC -21 portability unless the Employer can confirm that the job in the original Form I-140, Petition for Alien Worker, remains a bona fide job offer that you intend to accept once your Form I 485, Application to Register Permanent Residence or Adjust Status, is approved.
So if ten years has gone by and your priority date is now current and you are about to file your I-485 and no new PERM application has been filed, it will be necessary for you to confirm that you are willing to accept the new position and the Employer needs to confirm that the offer of employment is a bona fide job offer. What does all this mean?
Without question, the safest alternative is to wait until you are AC-21 eligible before changing jobs. Most people don’t have that luxury. So what do you need to show with Supplement J? Is it enough to profess your intent and your employer’s intent by signing Supplement J? Comments by DHS in the Federal Register suggest that the Supplement J will assist USCIS in determining whether the employer is still viable and is still extending a bona fide job offer to the applicant. Again clearly the subject here is workers who remain with the original petitioning employer but over the course of time change jobs for any reason. The employer viability is hopefully not the issue for you. Is this a bona fide job offer since you have not worked in this position in the last seven years?
I think common sense has to prevail here and the question is whether the worker, if he was required, would assume the original position once the Application for Permanent Residence is approved and whether the Employer would be willing to move that worker to the position once the Application for Permanent Residence is approved. But what happens if the worker becomes AC-21 eligible prior to a decision on the Application? Can he port? Will the worker be required to assume the original position and for what period of time?
Seventeen years after the enactment of AC-21 Employers and workers continue to grapple with questions that place a drag on career advancement as well as create hardships to Employers as they develop their workforce.
The first thing to concern yourself with is that you do not abandon your lawful permanent resident status. Generally, the INS takes the position that if a person lives and works abroad, you have abandoned your residence.
Many people are under the mistaken belief that if they return to the United States every six months that they will continue to be considered lawful permanent residents. Many individuals have lost their status because they did not maintain sufficient ties to the United States to retain their status.
You should take certain steps to assure that your permanent residence status will not be lost. First, always file US tax returns as a resident. You may not actually pay a tax because of tax treaties and foreign tax credits. You may be able to arrange to keep certain benefits in the United States or have your contract indicate that you are an ex-pat and the position you are assuming is a temporary position. Even better if it indicates you will return to the United States at the end of the assignment.
If the employment is indefinite, maintain as many contacts to the US as possible. We always recommend that you apply for a Re-Entry Permit before traveling abroad. The Re-Entry Permit will preserve your lawful permanent resident status for a period of two years. An individual who has a valid re-entry permit will not be found to have abandoned his status based upon the length of time he or she was outside the United States providing you maintain a residence in the United States. Evidence of residence in addition to tax returns may be a driver’s license, library card, bank account, family remaining in the United States and property ownership.
If you will be outside of the US for more than two years, you must return to the US before the expiration of the Re-Entry Permit to make an application for a new one. You must be physically present in the U.S. when we file the application and you must be here to complete Biometrics. You can leave after filing and return for Biometrics but this may be expensive depending upon the location of your assignment,
You will need two photos, a copy of your alien card and a filing fee. (Note the photos now required by CIS are full face frontal view)
The second area of concern is the preservation of your residence for naturalization purposes. This concept is different than physical presence which is important in naturalization cases and preservation of lawful permanent resident status discussed above.
An individual must reside continuously in the United States for five years/three (if married to a USC) years in order to become a U.S. citizen. An absence from the U.S. for more than six months will break the continuity of your residence for citizenship purposes. This is so even if you are traveling with a re-entry permit. This means if you remain outside the US for an extended period of time you must wait four years and one day before you can file for Naturalization One thing you can do is return to the U.S. at least every six months (even if you have a re-entry permit).
The other thing you can do is to apply to preserve your residence for naturalization purposes. (Again, this in no way affects your physical presence. For naturalization, you must be physically present for at least one half of the required three/five years of residence)
In order to apply for extended absence benefits you must meet the following criterion:
- You must be physically present in the United States with no
absences for one year as a lawful permanent resident;
- You must be employed abroad with a US corporation or majority
owned subsidiary of a US corporation engaged in the development
of foreign trade or commerce;
- Your absence from the United States must be in furtherance of your overseas
Your request is filed on INS Form N-470 together with a detailed letter from your employer.
In the majority of cases, it is very difficult to leave for an extended period and maintain your eligibility to file for citizenship upon having your green card for five years. It may be best to focus on preserving and maintaining your permanent resident status.
Please feel free to ask us any questions as this is a very complicated area of the law and mistakes may be costly.