10/26/2007

The law requires that the H-1B professionals comply with the terms and conditions of Labor Condition Application and USCIS H-1B regulation, no matter whether the alien is in I-485 proceedings or not in I-485 proceedings. When such violation takes place after filing of I-485, the alien's permit to remain in the U.S. pending I-485 application will not be affected and remain intact. 

However, continuing employment with the H-1B employer based on the H-1B visa status will constitute an unauthorized employment. This can haunt at the time of adjudication of I-485 applications. More importantly, it will affect eligibility of 245(K) when such violation exceeded six months or longer. 

Most of these violations are caused by the H-1B employers. For instance, nowadays, corporations and businesses are frequently going through merger or acquisition. Some of the merger or acquisition is considered a successor-in-interest entity to the H-1B employer and the H-1B employee's H-1B status will not be affected. Others are not considered a successor-in-interest entity to the H-1B employer. 

When such H-1B employer, after acquisition or merger, fails to file H-1B transfer timely or subsequently, the H-1B professional loses the H-1B nonimmigrant status with no fault of his or her own. Possession and instant availability of EAD will save the new employer as well as the H-1B professional since such alien is allowed to work for any new employer without a valid H-1B nonimmigrant status, including the new employer after unqualified merger or acquisition. Same is true with the bankruptcies of the H-1B employer, particularly reorganization under the supervision of the bankruptcies court. 

Some employers violate the H-1B and LCA rules by reassigning the H-1B employees at a location outside of the metropolitan area of the current H-1B petition with or without knowledge of the H-1B and LCA rules. EAD in the file can act a savior in certain circumstances in that the employer is not bound by the H-1B/LCA rules once they use the H-1B employees' EAD as the basis of employment authorization rather than H-1B nonimmigrant status. 

What about a failure to pay the H-1B wages which is evidenced by the alien's federal income tax return, 1040, and W-2? The 485 adjudicators are thoroughly reviewing and analyzing the alien's 1040 and W-2 to determine whether the H-1B employers paid the H-1B employees the H-1B salaries since payment of less than H-1B salary constitutes a violation of the H-1B and LCA rules.