DOS Clarifies H-1B Filing Requirements Following a Restructuring

R 250131Z JAN 02
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
POUCH BELGRADE
POUCH DUSHANBE
POUCH LAHORE

UNCLAS STATE 014668


VISAS
E.O. 12958: N/A
TAGS: CVIS
SUBJECT: Removal of New Petition Requirement for Certain H1-B Applicants

1. Summary: This cable provides guidance for consular officers regarding P.L. 106-396 that amends INA 214(c) by adding a new paragraph (10) pertaining to H1-B applicants who under certain circumstances need not be in possession of a new petition. End summary.

2. Section 401 of P.L.-106-396 ("Visa Waiver Permanent Program Act"), enacted in October 30, 2000, amended INA 214(c) to eliminate the requirement that H-1B applicants be in possession of a new petition if certain changes in the structure of the petitioning company occur after approval of the original petition. A new petition is no longer required when the petitioning company has been restructured including, but not limited to, by merger, acquisition or consolidation.

3. The new entity, however, must maintain the same interests and obligations of the original petitioning employer. Also, the terms and conditions of the applicant's employment at the new corporation must remain the same as those of the original petitioning employer.

4. Consular officers, therefore, must not require a new petition in these cases. Rather, they should request that the applicant provide appropriate corporate documents evidencing the restructure, which might include items such as contracts and other legal instruments containing a description the restructure, corporate literature or copies of documents filed with the government of the state of incorporation.

5. Questions regarding the application of the above in individual cases should be addressed to CA/VO/L/A.
POWELL