E-Verify issues TNC’s on some H-1B Portability Cases
AILA has recently confirmed that that on certain H-1B cases, E-Verify is not authorizing employees who are working for an employer under H-1B portability regulations, specifically when the employee previously held H-1B status, but has since held a different interim status such as H-4 or F-1 student visa.
E-Verify has previously issued employment authorization confirmation for these cases under the H-1B portability provisions for employers in similar situations when a new H-1B petition has been filed and pending – but has not been approved yet. However, recently, E-Verify has changed course and has been issuing final nonconfirmations for employees working pursuant to H-1B portability who currently hold status in other visa classifications.
What does the Law have to say on this?
We reference INA Section 214(n) which states:
- A nonimmigrant alien described in paragraph (2) who was previously issued a visa or otherwise provided nonimmigrant status under Section 101 (a)(15)(H)(i)(b) is authorized to accept new employment upon the filing by the prospective employer of a new petition on behalf of such nonimmigrant as provided under subsection (a). Employment authorization shall continue for the alien until the new petition is adjudicated. If the new petition is denied, such authorization shall cease;
- A nonimmigrant alien described in this paragraph is a nonimmigrant alien – (A) who has been lawfully admitted into the USA; (b) on whose behalf an employer has filed a non-frivolous petition for new employment before the date of expiration of the period of stay authorized by the Attorney General; and (C) who, subsequent to such lawful admission, has not been employed without authorization in the USA before the filing of such petition.
What is E-Verify’s Position?
E-Verify bases it denial justification on the interpretation of the statute and guidance from USCIS, and thee Office of Chief Counsel at USCIS stating that such employees should be issued a nonconfirmation because “The H-1B portability rule does not apply to a nonimmigrant who weres in H-1B status at one time, but who are currently in another valid status and for whom a non-frivolous I-129 Petition to obtain H-1B status has been filed.”