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Transcript: Working Outside USA While in Green Card or H-1 Process

April 17, 2012

Hello, everyone.  This is Rajiv S. Khanna for immigration.com, the Law Offices of Rajiv S. Khanna, P.C.

I have in front of me a couple of questions from two different people.  They’re related so I thought I would club them together.  The basic idea is this:

Can I, as an H-1 holder or as Green Card pending status individual, work outside USA instead of being inside USA?

I am just going to do a quick talk on the implications of a person working outside USA while he or she is an H-1 or a Green Card applicant.

The first question relates to somebody who has an EB-3 Green Card pending.  As you know, that’s a decade-long wait.  So, people have to make some plans about their lives.

So this gentleman says, actually, he’s one of our clients, both myself and my wife are working on EAD and traveling on Advanced Parole.  So they have got an I-485 pending but they are EB-3.  He is the primary.  She is the dependent.  The wife wants to move to India for longer than one year and is planning to come back before her EAD gets expired. 

First of all, is this okay?   Yes, of course.  As long your Advanced Parole is alive, EAD doesn’t matter if you are working outside USA with I-485 pending.  Only thing we care about is your Advanced Parole or your H-1 visa.  Under the circumstances, I would recommend Advanced Parole.  Keep it active.  Keep it alive.  For a derivative, there is absolutely no problem if they are working outside USA.  If you are the primary applicant for an I-485, things could be a little different.  Now, what happens is that there’s a decision tree. 

You can have two situations.  One, you are still working for your Green Card sponsoring employer, but you’re working outside USA.  The second situation is you’re working outside USA for somebody other than your sponsoring employer.  What happens then?  There is nothing illegal about it.  Both of these situations are allowed.  But there is a common sense rule here.  The government could say, “Why is it if you have a permanent job in USA, your sponsoring employer can get the job done without you?”  Now, there could be many reasons for this.  One of the reasons could be the nature of the job is such that could be done anywhere for the time being.  So the employer is willing to accommodate you.  But, whatever the reasons are, be prepared to be sensitive to that question.  Is there really a job?  They can ask you that.  The idea is that you could be working from anywhere.  That is not the main issue here.  The most important thing here is that there should be a good explanation that you have a job in USA that is ready and open for you. 

One of the issues here is keep in mind that certain technologies don’t allow people from outside USA to work.  Most people don’t know that.  I think there is some restriction, for example, on encryption technology.  I think certain encryption technology is considered weapons grade.  Just look into that.

Otherwise, just ordinary commercial jobs, ordinary software development, ordinary financial consulting, can be done from anywhere.  That is not an issue.  Remember whether or not you have proper work authorization in USA.  This is very important to also keep in mind.  For example, if you are working from, for example, India, it is not required that you have proper work authorization in USA.  I don’t care if you have an EAD.  That’s perfectly legal.  You are working on Indian soil, not on American soil.  I don’t care if you have an EAD.  I don’t care if you have an H-1.  And that will bring me to my next question in a minute or two.

It also does not matter whether you come to USA periodically or not, as long as the job is alive and well and waiting for you, you should be okay.  For the primary and the derivative.  For the derivative, it is absolutely no problem.  Her job is not implicated at all.  She can work from anywhere.  But, for the primary applicant, this idea that job is still there and waiting has to be kept in mind.  And don’t make things up, guys.  We’ve to be truthful about this.

The same situation for H-1 people.  I’ve got people who go to India or go to their home countries and get stuck in long, long adversarial processes that go on to three months, four months, five months, six months.  What should they do?  If you can get your job outsourced and you can work from your home country while the H-1 process is going on, it’s absolutely no problem.  You can continue working.  Now there can be tax aspects that you’ve got to figure out with your CPA’s.  How you do you get paid?  Where do you pay taxes?  Things like that.  But those are tax issues and they can be figured out.  People do it all the time.  In fact, our own office has a couple of employees from other countries.   I don’t think that’s a problem.  That can be worked out.

The more important question--What is the impact on my H-1?

For example, I am outside USA for more than one year.  What happens to your H-1 is that, after one year outside USA, you can reset the clock and have six years of H-1 all over again, or you can go with something like a remainder option.  It’s called the remainder option.  I’ll explain the rule in a minute.  The idea here is this.  If you are outside USA for more than one year, you get six years of H-1 back, but then you are subject to the H-1 quota.  If you’re outside, good news is six years back.  Bad news is quota.  If you don’t want to be subject to the quota, you have to give up your right to six years of H-1 and take whatever is remaining in your H-1 six years initially.  That’s called the remainder option.  Those are the choices you have.  There is nothing wrong in working outside USA.

Bear in mind these principals.  If a primary applicant, make sure there’s a job available.  If a derivative on an I-485, work from anywhere.  No problem.  If on H-1, you can outsource the job.  You can work from anywhere in the world.  Doesn’t matter where you are.  The only thing is, at some point, if it’s more than one year outside USA, you have to make a choice of either a remainder or resetting the clock and being subject to the quota.

I hope that explains things adequately, guys.  As always, it’s good talking with you.  I will speak with you folks soon.

6 May 2015: We are noticing a VERY disturbing trend: USCIS seems to have reverted back to the position (or are in the process of reverting back) that priority date will be lost if the I-140 is revoked, even if revoked by the employer, not USCIS.

Hello, everyone.  This is Rajiv S. Khanna for immigration.com, the Law Offices of Rajiv S. Khanna, P.C.

I am very pleased to report this morning that I saw a news report from USCIS Nebraska Service Center teleconference on April  12, 2012, that clarified you can carry forward the Priority Date from one I-140 approval to another 1-140 approval for another employer, even if the old employer revokes the I-140.  USCIS has flip-flopped on this issue several times.

Let me first bring you to the news.  Right here it says.  If you look at the question number two.  The answer is, both centers adhere to retaining the earlier priority date, unless the I-140 was revoked for fraud or willful misrepresentation.  So the idea here is this:  even if you go from Employer A to Employer B, and Employer A revokes the I-140 approval, the Priority Date is yours to carry forward to any employer you like--B,C,D,E--unless the employer A’s I- 140 was revoked for fraud or misrepresentation.

The history of this interpretation is strange.  A few years ago, this was the position.  USCIS always said you can carry the Priority Date forward.  A couple of years ago, they started saying, “No, you cannot.”  We had several cases in which they raised this issue, so anybody who has had this issue decided against them can actually go back and file a motion to reopen/reconsider.  I advise you to think about this very carefully.  You could actually go back and ask USCIS for the Priority Date to be carried forward if they had earlier denied it.  There’s  a whole lot of people who went through this.  File a motion to reconsider.  Then USCIS started saying, “Well, you cannot do it.”  

Now they are back to their old, very good interpretation, which is in line with Congressional intention for AC-21, where Congress wanted to create room for people to leave their jobs and move on to other jobs because Green Cards were taking so long.  So Congress said, “We’ll put in AC-21.”  That will make it easier for employees to change jobs without losing their Green Card benefits.

This is excellent news, folks.  Once again, I am summarizing it for you.  You can carry your Priority Date forward, even if the old I-140 is revoked, unless the I-140 is revoked for some fraud or some willful misinterpretation.

One more thing I wanted to add.  This is not good for H-1.  Don’t think that if the I-140 is revoked, you can still use it for H-1 extensions.  You cannot.  If you want H-1 extensions beyond six years, you’ve got to have something else going.  You cannot rely on the revoked I-140.

That’s all I have to say on this issue.  I will speak with you folks soon.

Thank you for listening.

Transcript: Employment Authorization (EAD) for H-4 Holders Proposed

I was asked to comment about the proposed rule that would allow certain H-4 holders to get employment authorization. What I have opened on the screen is the current status as of December 16, 2012. This rule is currently being reviewed by the Office of Management and Budget’s sub-office OIRA, which is the Office of Information and Regulatory Affairs. The idea is that under Executive Order 12866--I am not giving you too many details just trying to keep it to the minimal--regulations before they move forward beyond a certain point, they need to be reviewed by the White House. It is not something that President Obama does himself, of course--you all know that--it is people who are experts in federal regulation within the White House under the office of OMB—OIRA. They are the people who are charged with the responsibility of making sure the regulations are sound in terms of policy, in terms of time, cost, compliance, etc.

I want to point out a few things. If you look at this, it says current action is NPRM (Notice of Proposal Rule Making). That means once this is okayed by the OMB, a Notice of Proposed Rule Making will be put out in the Federal Register. If you look at this right here, it doesn’t have a FR (Federal Register) citation right now, because it has not yet been published. So once it is approved and NPRM (Notice of Proposed Rule Making) would be published in the Federal Register, which basically means the government will formally notify everybody that we intend to make a rule and if you have any comments about that, let us have them. There is a lot of variation in regulations and how they are made. Let me get to that in a second.

But I want to point out this abstract to you. What does it say? It says we are going to allow those H-4 holders to get work authorizations whose husbands have crossed over six years of their H-1 and now they are in extended H-1 beyond six years, either three-year period or one-year period. These two periods are referred to as Section 104C and 106A. These two periods depend upon when the labor certification was filed. If the labor certification was filed a year ago, anyone who is on H-1 six-year term can get their H-1 extended on a year-to-year basis. So that year-to-year extension is tied in with your labor certification date. So, first anniversary of the labor certification allows one-year extension.

The second method of getting H-1 extension, which is the three-year method, is if your I-140 is approved regardless of when your labor certification was filed. So, if you are in any of these two categories and exceeded your H-1 and you’ve now extended your H-1 beyond six years, your spouse would be then entitled to get work authorization. I think it is very fair and, as the abstract notes, this is to encourage professionals with high-demand skills to remain in the country. Think about it. Somebody who is on H-1 has been here for six years--they have done everything by the book, they have done it legally--there is no reason for them to have to wait any longer for their spouses to work. It is just highly unfair, and we have been pointing this out--not only us but the entire set of stakeholders, the community, lawyers, agencies that are involved, non-profits that are involved in the process. It’s been pointed out to the government that people who have been waiting for their legal immigration for years--I mean typically what is the life-span—let’s just take for example, India or China. You enter USA typically on a student visa. You do your Master’s for a couple of years or your Ph.D. and your Ph.D. sometimes for five or six years. Then you get into H-1 six years after that. You will get this benefit. So that’s like 15 years for many of you, but definitely no less than six years.

If, on the other hand, government were to legalize folks who are here illegally. I am not saying they should not be legalized; I am saying that we’ve got to have some equity here and this is one step--very, very small step--towards equity. I personally feel like in L-2, H-1 visa holders, their spouses should be allowed to start working on the day they enter USA. Why is this distinction made between L-2 holders and H-4 holders? L-2 holders are allowed to work day one when they enter USA. There is no philosophical or policy difference between L-2 and H-4. In any case, we will take what we can get for the time being. At least this is a step in the right direction.

Now what happens after this process? Well, you know, some of my colleagues are predicting it could be as little less, as you know, three months or six months. I don’t think it is that simple, because remember typically what happens is first a notice of the rulemaking is provided or the rule itself can be provided as a proposed rule and then public is invited to comment for 30 to 60 days. Then the government goes back and analyzes those comments. This whole process can take a while. Then they can issue another revised version asking for more comments. Sometimes the comment period can be extended to 180 days. Then, on top of that, and during the Congressional review time, which is while the regulations are still not implemented, they are finalized. Congress can come back and overrule the regulations. It’s difficult for them to do that at this point of time, but you know all these things are still uncertain so by no means can we say that this is certain to be implemented and when it is certain to be implemented. But it appears that for the first time in the last four or five years, some formal acknowledgment has been made by the Obama Administration and some acknowledgment has been made that there is a set of legal professional workers in the United States who have been much ignored.

Feel free to send us emails through the Contact Us form on our website. Send us an email if something is unclear. I will be happy to address as much of it as I can.

I also wanted to add one thing as an afterthought. You do know that, of course, once you file your I-485 Adjustment of Status, your spouse on H-4 is entitled to their EAD. This is an addition to that right. So even if you are--obviously I think it is quite clear, but just in case it isn’t--even if you are not in the I-485 step of the process, you can still get employment authorization for your H-4 spouse if this rule were to be implemented. I just thought I will add that. Thanks.

I have received a couple of questions from a client and a member of the community.

First--What is the exact process?

Well, the process is quite variable. From here on, a lot of things can be done differently. In fact, the government can publish a rule without giving a notice and comment period, if they want, because if the rule is urgent enough or they want it to be implemented--or it is not necessary or useful to have notice and comment--it can be implemented without notice and comment. It is unlikely. So the process is actually quite amorphous. It can have many variations. It is very difficult to pinpoint exactly what is going to happen. But a lifetime once it moves out of the OMB is typically about 180 days or six months or so. Another great variable is how long does the agency think the notice and comment period should be kept open. Like I said, sometimes, it can be as much as 180 days.

An interesting question was asked--Does this have to go to the Senate or House for approval?

The answer is no. This is not a law--this is a regulation. Regulations are dealt with entirely on the side of the administration by the government. It does not go to the legislature. The only way the legislature can overrule it is if both the sides—the Senate as well as House of Representatives--passes a resolution overruling the regulation, and the President signs it. If the President doesn’t sign it, then I guess what they have to do is override his veto, which is very, very difficult--if I remember correctly with a two-third majority of the two houses--so that is very unlikely to happen. I guess that should also clarify things for you folks a little bit more. Keep the questions coming. I will answer them as quickly as I can.