Motion to Reopen Success Story - USCIS Approves change of status filed after H1B employee's termination
Attorney Ekaterina Powell spearheaded this remarkable victory. Camille is a citizen of the Philippines. She came to the U.S. in August 2007 on a J-1 visa to train in the hospitality operations of a restaurant. The restaurant subsequently hired Camille to work for them under H-1B visa in the position of Human Resources Specialist. The employer did not follow the H-1B regulations, did not pay Camille the required wage for the position or overtime wages.
On September 28, 2010, the restaurant informed Camille that she is fired effective immediately. Camille has long been thinking about continuing her education and obtaining a Master’s Degree. She immediately started searching for good MBA programs at local schools. On Monday, October 4, 2010, Camille retained an attorney, collected all the necessary documents for Change of Status application which was filed on Tuesday, October 5, 2010.
USCIS denied Camille’s application for Change of Status because, in the opinion of the Service, Camille was not in a lawful status when she filed the Change of Status application because she was discharged from work on September 28, 2011 and was in violation of her status the next day.
Due to several reasons, Camille could not go back to the Philippines in order to apply for a student visa from there. Our office has filed a motion to reopen the case arguing that the denial decision should be overturned and Camille should be granted the F-1 status.
MOTION TO REOPEN THE CASE
In the motion to reopen, we argued that Camille continued to maintain her valid status when she filed the application on October 5, 2011. We presented evidence that there was no bona fide termination of Camille’s employment until February 8, 2011 when the employer notified USCIS. Additionally, and most importantly, we provided proof that Camille was an employee of the restaurant on the date of filing the application because her termination was not effective until October 19, 2010, the date the Separation Agreement between her and the employer became effective.
In addition, we argued that even if the period of previously authorized status had expired, Camille’s circumstances warrant the favorable exercise of discretion to grant the applicant the change of status to F-1 student. The lack of notice given to Camille regarding her discharge from work, Camille’s good faith and expeditious efforts to find an appropriate school program supported the favorable exercise of the Service’s discretion in granting the Change of Status.
There has not been a bona fide termination of Camille’s employment until February 8, 2011 when the employer notified USCIS. In order to determine whether Camille was in a valid nonimmigrant status, we need to determine the date the employment relationship between her and the H-1B employer terminated.
U.S. employers who hire temporary H-1B nonimmigrants are required by law to notify the Service that an H-1B employee no longer works for the employer so that the petition is canceled. 8 Code of Federal Regulations (“CFR”) 214.2(h)(11)(i)(A). The regulations similarly require the employer to provide the employee with payment for transportation home under the circumstances in 8 CFR 214.2(h)(4)(iii)(E)). Upon the Service’s receipt of an employer’s request to withdraw an H-1B petition, the revocation of the approval of such petition is automatic. 8 CFR sec. 214.2(h)(11)(ii).
Therefore, notification to USCIS is fundamental to ending an H-1B employer’s obligations. The notice triggers USCIS’s ability to revoke the H-1B petition, thereby invalidating the employee’s H-1B status. See 8 CFR sec. 214.2(h)(11)(iii)(A)(1).
USCIS regulations do not provide for the automatic revocation of an H-1B petition when the employee leaves his/her employer. The petition remains valid until its expiration date or its revocation by the employer. This means that the employer remains liable for payment of back wages to the employee up to the point of the petition’s expiration or revocation.
An employee may not be considered properly terminated unless the employer follows the regulations and notifies USCIS that the employment relationship has been terminated so that the I-129 petition is canceled and provides the employee with payment for transportation home. See Amtel Group Florida, Inc. v. Yongmahapakorn, ARB case no. 04-087, ALJ case no. 2004-LCA-006 (Sept. 29, 2006).
Under Amtel, a bona fide termination requires 1) notice to the employee; 2) notice to USCIS that employer has terminated the employment relationship and withdrawing the petition; and 3) employer providing the employee with payment for transportation home.
Therefore, notification of USCIS and payment for return transportation abroad are essential components of evidencing bona fide termination of employment.
In Camille’s case, the employer has not notified USCIS until February 8, 2011 that it is withdrawing the H-1B petition for the beneficiary. Therefore, there has not been a bona fide termination of Camille’s H-1B employment up until February 8, 2011.
Camille was an employee of the Restaurant on the date of filing the application for a change of status on October 5, 2010 because the Separation Agreement became effective only on October 19, 2010
Additionally, Camille signed the Separation Agreement and General Release of All Claims with her employer on October 11, 2010. The Separation Agreement itself became effective on October 19, 2010. The separation agreement serves as additional proof that Camille was an employee of the company when she filed the application for a change of status on October 5, 2010.
Camille’s circumstances warrant the favorable exercise of discretion to grant the applicant the change of status
In the motion, we also requested the Service to favorable exercise the discretion to grant Camille the change of status even if it is determined that her previously authorized status had expired.
8 CFR sec. 248.1(b) states that the Service may excuse failure to file before the period of previously authorized status expired where it is demonstrated at the time of filing that:
(1) The failure to file a timely application was due to extraordinary circumstances beyond the control of the applicant or petitioner, and the Service finds the delay commensurate with the circumstances;
(2) The alien has not otherwise violated his or her nonimmigrant status;
(3) The alien remains a bona fide nonimmigrant; and
(4) The alien is not the subject to removal proceedings.
Camille was discharged by her employer, The Restaurant, without receiving any prior notice. When Camille came to work on September 28, 2010, she was informed that The Restaurant was discharging her and that the discharge was effective immediately. Camille immediately started searching for good MBA programs at local schools and for an attorney to help her with the change of status application.
The delay in filing the application for a change of status was due to no fault on the part of the applicant. Camille made good faith efforts to file the application on time, but it was not possible to file it earlier due to the fact that the employer has not even given Camille a benefit of a one-day notice to consider her options.
All reasonable efforts have been made by Camille to comply with the terms of her authorized stay and file the petition timely. Therefore, the delay was due to extraordinary circumstances beyond the control of the applicant.
Despite all the arguments in support of the Change of Status, the motion to reopen was denied by USCIS. In the denial decision, the Service repeated that the applicant failed to maintain her valid status at the time of filing the application and that the applicant is ineligible for the classification sought. In addition, the adjudicator summarily chose not to exercise the discretion and did not address the extraordinary circumstances present in that case.
In the denial decision, the Service stated that the agreement between the parties covered only release of the employee’s claims, but not the termination of employment. In addition, USCIS stated that the fact that the employment relationship continues to exist for determination of wage obligations of the employer per the Department of Labor rules has no bearing on USCIS regulations. USCIS stated that the fact that the employer has not effectuated a "bona fide termination," by failing to notify USCIS about the employment termination does not mean that the applicant has continued to maintain a valid H-1B status after the termination date. Therefore, the Service stated, there is no evidence that the employer-employee relationship continues to exist after the termination date.
We disagreed with the decision of the Service in that case. The denial was based on the wrong application of the law to the facts of the case and contained erroneous information about the applicant.
Therefore, we have filed a Motion to Reopen the Case again addressing the deficiencies and inconsistencies in the Decision denying our Motion to Reopen.
NEW MOTION TO REOPEN
The Separation Agreement between the parties defines the employment relationship, including the termination of employment
In the new Motion, we have emphasized again that the Separation Agreement that Camille had with the employer controlled the employment relationship. The parties to the employment relationship may enter into a contract regarding their rights and obligations stemming from the employment relationship. The statutory presumption of at-will employment (Lab.C. § 2922) does not apply where parties have enforceable expectations concerning either the term of employment or the grounds or manner of termination: “The statute does not prevent the parties from agreeing to any limitation, otherwise lawful, on the employer’s termination rights.” See Guz v. Bechtel Nat’l, Inc. (2000) 24 C4th 317, 336, 100 CR2d 352, 364; see also Foley v. Interactive Data Corp. (1988) 47 C3d 654, 680, 254 CR 211, 225. Therefore, the agreement entered into by The Restaurant and Camille was a lawful exercise of the parties’ rights to describe their employment relationship and the separation terms.
In the denial decision, the adjudicator stated that the employer had properly terminated the applicant’s employment on September 28, 2010. The adjudicator stated that “[b]y accepting the termination, the applicant appears to have acknowledged that her H-1B status was also ceased from the date of termination.” However, this assertion is not correct.
In fact, Camille did not acknowledge that she was terminated on September 28, 2010. The evidence of this is the Separation Agreement that Camille signed on October 11, 2010 and that became effective on October 19, 2010. Therefore, the Agreement is controlling and not the Discharge Notice effectuated on September 28, 2010.
Before this agreement became effective, Camille did not accept her termination and was considering her rights and obligations as an employee and the options available to her to continue being employed. Therefore, before the Separation Agreement took effect, the employment relationship between The Restaurant and Camille had not ceased to exist.
No bona fide termination of employment until the Restaurant withdrew the H-1B petition
In the denial of the motion, USCIS stated that “bona fide” termination of employment date is for the purposes to calculate the employer’s wage obligations by the Department of Labor and has no bearing on USCIS regulations.
We disagreed with the Service’s interpretation of the regulations. Notification to USCIS is fundamental to ending an H-1B employer’s obligations. The notice triggers USCIS’s ability to revoke the H-1B petition, thereby invalidating the employee’s H-1B status. See 8 CFR sec. 214.2(h)(11)(iii)(A)(1).
If the Service claims that the interpretations of the Department of Labor’s regulations and relevant case law regarding the termination of employment relationship do not bear any evidentiary value on USCIS determinations, then there seems to be a clear contradiction between the agencies’ interpretations of the regulations leading to absurd results.
Accordingly, following such logic, while an employer has to abide by the rules in 20 CFR pertaining to DOL’s regulations and will not be considered to have terminated the employee until the H-1B petition is revoked, the H-1B employee’s employment relationship is considered terminated upon discharge from work. However, employment relationship is two-sided. It cannot terminate for one party and continue for another.
USCIS regulations do not provide for automatic revocation of an H-1B petition when the employee leaves his/her employer. Therefore, the date when the employer’s obligations to the employee end should be taken into account when determining the date the employment relationship for both parties is terminated.
Camille’s circumstances warrant the favorable exercise of discretion
The Service summarily denied the counsel’s assertions that the extraordinary circumstances of this case warrant a favorable exercise of discretion granting the applicant F-1 status. USCIS did not even address the circumstances of this case. This is abuse of discretion by the Service to summarily assume that Camille is not eligible for a change of status without consideration of the extraordinary circumstances presented.
In the denial, USCIS stated that Camille’s abrupt termination had no bearing on the decision. However, under regulations in 8 CFR 214.1(c)(4) and 8 CFR 248.1(b), an alien may be granted an extension of stay or change of nonimmigrant status notwithstanding the alien’s inability to maintain status, if the alien can show that the inability to maintain status was excusable.
Therefore, Camille’s abrupt discharge should have been given consideration. In addition, in June 2008 liaison with AILA, Vermont Service Center noted that it “seeks to be reasonable in its approach to late filed petitions which are the result of the alien’s abrupt departure from the previous H-1B employment.” VSC noted stated that “[c]onsideration will be given to documentation which establishes that the alien made a good faith effort to secure new employment upon termination from the previous employment.” See id.
It is abuse of discretion when USCIS fails to follow its own regulations, or where USCIS decision is inconsistent with the agency's own precedent. See Shanti, Inc. v. Reno, 36 F. Supp.2d 1151, 1162 (D. Minn. 1999). The Service in this case abused the discretion by disregarding the compelling extraordinary circumstances in this case and Camille’s abrupt termination.
The application for a change of status was filed within a week. Given the circumstances, the delay in filing the application was reasonable.
In addition, Camille has been benched by her employer, which means that the employer improperly terminated her and failed to pay the required wages until the H-1B petition was revoked on February 18, 2011.
Camille filed the WH-4 complaint with the Department of Labor on May 5, 2011 asserting multiple violations by the employer, including benching. 8 CFR sec. 248.1(b) permits change of status despite the failure to maintain status if that failure was not the H-1B employee’s fault.
Camille is eligible for the classification sought
In the denial, USCIS states that it is not persuasive that the applicant genuinely wishes to pursue a non-related MBA after ten years working in the U.S. and right after her employment termination. The Service’s assertions were conclusory, not supported by the facts of the case, and were plainly erroneous.
First of all, USCIS clearly ignored the facts of the case stating that Camille has been working in the U.S. for the last 10 years. Camille arrived to the U.S. in August 2007 as a trainee and started working as an H-1B employee in October 2008. Before August 2007, Camille was working in Manila, Philippines.
In addition, USCIS claims that Camille’s education and experience are unrelated to managerial science and, thus, the conclusion that Camille’s pursuit of an MBA degree is not bona fide. However, this assumption is not correct. Camille has spent 6 years working in the areas of Sales Management and Director of Sales. With only a degree in Psychology, Camille cannot pursue higher level management positions in the Philippines as most businesses there require applicants to possess formal graduate education in the areas of management or business administration. With the Motion, we attached the Letter from the General Manager of one of the hotels in the Philippines acknowledging that the MBA degree from a U.S. university would significantly enhance Camille’s career opportunities and that he would be pleased to offer Camille employment as a top level manager at the hotel after she completes her MBA program.
Most importantly, the adjudicator did not bring up the concerns about Camille’s ineligibility for F-1 classification in the RFE issued in this case. According to 8 CFR103.2(b)(8)(ii), if the initial evidence does not demonstrate eligibility, USCIS may request that the missing initial evidence be submitted within a specified period of time. Since USCIS chose to send a request for evidence, the Service should have requested evidence supporting Camille’s eligibility for the classification sought in the RFE if there were any concerns regarding the issue. Therefore, USCIS abused their discretion by not requesting the documents and denying the application based on ineligibility for F-1 status.
Request for Evidence
This was not our last correspondence with USCIS in this case. After the new Motion to Reopen was filed, USCIS issued the RFE asking to present the employment agreement between Camille and the Restaurant. This was an interesting turn in the adjudication. The fact that USCIS requested the employment contract could mean that USCIS recognizes situations where the termination of employment relationship, and thus the termination of the H-1B employee’s valid status, is governed by contractual agreements between the parties. From the language in the RFE, it is logical to infer that USCIS has actually taken into account the unique circumstances of this case and has departed from its contention that Camille’s valid status ended as of the date the employment ceased.
With the RFE response, we provided the Employment Offer Letter that the Restaurant gave Camille on October 1, 2008 to effectuate the start of her employment pursuant to the approved H-1B. In addition, we submitted the LCA and the H-1B petition signed by the Restaurant.
By signing the LCA and the H-1B petition, the Restaurant has agreed to comply with the H-1B regulations, including proper employee termination procedures (8 CFR 214.2(h)(11)(i)(A) and 8 CFR 214.2(h)(11)(ii)). By signing the Offer Letter on October 1, 2008, the employer has confirmed its offer of employment to Camille based on the approved H-1B petition.
Therefore, the combination of the Offer Letter and the approved H-1B shows that the Restaurant and Camille entered into an employment contract, by which the employer agreed to abide by the H-1B regulations pursuant to Camille’s status.
The law permits the parties to the employment relationship agree to any limitations, otherwise lawful, of the employment relationship. When an employer promulgates formal personnel policies and procedures disseminated to employees, a strong inference may arise that the employer intended workers to rely on these policies as terms and conditions of their employment, and that employee did reasonably so rely. See Guz v. Bechtel Nat. Inc., 24 Cal. 24th 317, 100.
The Restaurant had to comply with the LCA regulations and LCA posting requirement (20 CFR § 655 Subparts H & I), and, thus, the terms of the LCA and the employer’s attestations were known to all employees of The Restaurant and to Camille, specifically. Since Camille reasonably relied on these terms, there is an implied contract that the employer has to comply with the H-1B employee’s termination procedures.
A covenant of good faith and fair dealing is implied by law in all contracts. An application of this covenant necessitates the employer to refrain from behavior that tends to deprive the applicant from the benefits of the agreement. See Foley v. Interactive Data Corp. (1988) 47 C3d 654, 683-684, 254 CR 211, 227-228. Covenant of good faith and fair dealing means that the employer should not contravene the reasonable expectations of the employee as to the terms of the employment relationship that is controlled by the approved H-1B petition. The fact that the employer signed and filed the LCA and the H-1B petition means that the employer had agreed to abide by the proper H-1B employee termination procedures.
In Camille’s case, the employer had agreed to comply with the H-1B regulations by signing the LCA and H-1B petition. The employer, subsequent to the H-1B approval, offered Camille the position pursuant to the H-1B terms. Therefore, the parties have entered into an agreement that their relationship is governed by the applicable H-1B regulations, including proper employment termination.
Since the H-1B rules dictate that the employer has to send the notice terminating the employee to USCIS, the employer did not effectuate proper termination and, thus, did not terminate Camille on September 28, 2011 according to the employment agreement between them.
Accordingly, pursuant to the agreement between The Restaurant and Camille, and in compliance with the H-1B regulations, Camille was still an employee of the Restaurant when she filed her Application to Change Nonimmigrant Status to F-1.
CASE APPROVED!!! VICTORY AT LAST!!!
Less than two weeks after submission of the Response to the RFE, Camille received the Approval Notice in the mail. The case was finally over and Camille could continue her MBA program without worrying about her immigration status.
Current immigration regulations do not give terminated H-1B workers any grace period to file an application to switch to another employer or to change status. The H-1B status terminates as of the date the employment ceased. This leads to unfortunate results. Some employers take advantage of H-1B workers knowing that their status depends on continued employment. H-1B workers throughout the country are forced to tolerate hostile and abusive working conditions, discrimination in the work place, and underpayment of required wages in fear of being discharged and immediately lose lawful status. Not many employees decide to complain about the H-1B violations.
In an effort to preserve lawful status in the U.S., H-1B workers are trapped in the current state of the legislature completely relying on the good will of their employers.
Change in USCIS policies allowing for a grace period after termination of H-1B employment will not only afford the H-1B nonimmigrants the benefits of the legal protections against employment exploitation and retaliation, but will also decrease the unemployment rate and will improve the working conditions of U.S. workers who are adversely affected by H-1B employment violations.
Camille’s case is an example that even in difficult situations persistence and extraordinary circumstances can get the case approved. However, until there is a change in USCIS policies, we recommend our clients to plan ahead of possible termination and be prepared to act promptly. If you are an H-1B worker and you feel that you will likely be terminated or if you plan to quit your employment, immediately contact an immigration attorney. Attorneys from our office will be happy to review the circumstances of your particular case and advise you on the best course of action.