Understanding the Neufeld Memo: Key Insights on H-1B Portability

The USCIS memorandum from May 30, 2008, known as the “Neufeld Memo,” provides guidance on processing H-1B petitions and other immigration applications under the American Competitiveness in the Twenty-First Century Act (AC21). Here’s an explanation of the key points:

1. Purpose and Scope:

The memo clarifies how to handle H-1B petitions and related immigration applications under AC21 and the American Competitiveness and Workforce Improvement Act (ACWIA).
It focuses on H-1B extensions, concurrent employment, portability (changing jobs), and I-140 and I-485 applications.

2. Key Provisions Explained:

A. H-1B Extensions (AC21 §106(a) and §104(c)):

AC21 §106(a): Allows one-year extensions beyond the 6-year H-1B limit if:
1. A labor certification or I-140 petition has been pending for at least 365 days.
2. The labor certification is unexpired and was filed at least 365 days before the end of the 6th year.
3. The extension request is otherwise approvable.
AC21 §104(c): Grants three-year H-1B extensions for workers affected by per-country visa limitations if:
- The worker is the beneficiary of an approved I-140 petition.
- An immigrant visa is unavailable due to per-country limits.

B. H-1B Portability (AC21 §105 and INA §214(n)):

H-1B workers can change employers and start working immediately if:

They were lawfully admitted to the U.S.
The new employer files a nonfrivolous H-1B petition before the current status expires.
They haven’t worked without authorization before filing the new petition.

Successive Portability (Bridge Petitions):
- Multiple H-1B portability petitions can be filed while others are pending, creating a “bridge” of status.
- If any petition in the bridge is denied, it breaks the chain, impacting all subsequent petitions.

C. I-140 and I-485 Portability (AC21 §106(c)):

If an I-140 immigrant petition is approved and the I-485 adjustment of status has been pending for 180 days or more, the worker can change jobs or employers if the new job is in the same or similar occupational classification.
This provision allows workers to switch jobs without restarting the green card process.
However, if the I-140 is not approvable, portability does not apply.

D. H-1B Cap-Exemptions and Concurrent Employment:

Cap-Exemptions: Certain employers (e.g., universities, nonprofit research organizations) can hire H-1B workers without being subject to the annual H-1B cap.
Concurrent Employment: H-1B holders working for a cap-exempt employer can also work for a cap-subject employer without being counted against the cap, as long as they maintain their cap-exempt job.

E. H-1B Whistleblower Protections:

H-1B workers who report Labor Condition Application (LCA) violations by their employer are protected from retaliation.
If the worker loses status due to employer retaliation, USCIS may consider this an “extraordinary circumstance” and allow them to find new employment without affecting their immigration status.

3. Practical Implications:

H-1B Portability: Allows changing employers quickly without waiting for USCIS approval. This flexibility supports career advancement.
Extensions Beyond 6 Years: Beneficial for those with pending green card applications, especially from countries with long visa backlogs.
Job Mobility: I-140 portability under AC21 §106(c) gives workers freedom to switch jobs while their green card application is pending.
Concurrent Employment: Offers the ability to work multiple H-1B jobs, maximizing employment opportunities.

4. Summary:

The Neufeld Memo provides comprehensive guidance on H-1B portability, extensions beyond six years, and job changes while maintaining status.
It empowers H-1B workers with more mobility and flexibility, while ensuring they maintain lawful status and work authorization.
The memo also protects whistleblowers and supports career growth by allowing workers to switch employers without restarting the green card process.

This guidance is crucial for H-1B employees and employers to understand the rules and benefits of H-1B portability and extensions, ensuring compliance and strategic career planning.

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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