E-Verify Nonconfirmations Issued for Some H-1B Portability Employees

Our office has received confirmation from AILA and from E-Verify that in certain cases, E-Verify would not verify employment authorization for an employee who is working for an employer under H-1B portability and where the employee previously held H-1B status but has since held an intervening status.

For example, an employee holds H-1B status but decides to switch to H-4 or F-1.  Then, while holding H-4 or F-1 status, for example, the foreign national is sponsored by  a new employer for an H-1B change of status.

Previously, E-Verify has issued employment authorization confirmation under the H-1B portability provisions for employees in similar situations where the new H-1B petition has been filed and pending but has not been approved yet.   However, recently, E-Verity has started issuing final nonconfirmations for employees working pursuant to H-1B portability who currently hold another status, such as H-4 or F-1.

The Law

The relevant statutory provision is INA §214(n):

(1) 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 such alien until the new petition is adjudicated. If the new petition is denied, such authorization shall cease.

(2) A nonimmigrant alien described in this paragraph is a nonimmigrant alien–  (A) who has been lawfully admitted into the United States; (B) on whose behalf an employer has filed nonfrivolous 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 United States before the filing of such petition.

E-Verify’s Justification

The justification for E-Verify’s denial to issue such employment authorization confirmation is based on interpretation of the statute and USCIS guidance.   E-Verify’s justification has been that, upon advice from the Office of Chief Counsel at USCIS, such employees should be issued a nonconfirmation because “the H-1B Portability Rule does not apply to a nonimmigrant who was in H-1B status at one time, but who is currently in another valid status and for whom a non-frivolous I-129 Petition to obtain H-1B status has been filed.”

Specifically, E-Verify states that:

USCIS guidance dated December 27, 2005, states that “porting under INA §214 does not require that the alien currently be in H-1B status as long as he or she is in a ‘period of stay authorized by the Attorney General.'” That statement serves to clarify the earlier section specifically referring to an “H-1B alien” and should be read in the context of the particular example given: an alien who was in H-1B status and is now in an authorized period of stay based on a timely filed extension of H-1B status petition on the alien’s behalf, and who then seeks to start working for a different H-1B employer upon that employer’s filing of a petition. This interpretation is consistent with USCIS guidance to the public on its website (Nonimmigrant Services, H-1B FAQs, page 61) which states:

Changing employers – An H-1B worker can change employers, but first the new employer must file a labor condition application and then file a new H-1B petition. If the worker is already an H-1B, he or she can then begin the employment as described in the petition without waiting for USCIS to approve the petition. This is called a “portability provision,” and it only applies to someone already in valid H-1B status.

Difference of Interpretation?

AILA has indicated that they would seek to argue the USCIS interpretation, as applied to E-Verify.  AILA’s argument is that the E-Verify protocol is inconsistent with the clear language of the statute.

Conclusion

This E-Verify position and the issuance of nonconfirmations to H-1B portability employees affects a relatively small portion of H-1B employees.   Again, only those who have had H-1B status, have changed to another status (such as H-4 or F-1) and subsequently seek to start working upon the filing of an H-1B change of status application are affected.   Normally, and well before the current E-Verify guidance was issued, we advise employers and employees in similar situation to first secure the H1-B approval (perhaps by filing under premium processing) before starting employment.  This USCIS position and E-Verify guidance validates our practice.