Recently, the CIS has started making inquiries of pending adjustment of status applicants about their H1B status. The law provides that an employment based AOS applicant may have up to 180 days of status violations since their last entry prior to application and remain eligible to adjust status. While the filing of an AOS application cuts off continuing status violations, if the AOS applicant works without authorization after filing, however, that counts toward the total 180 days of status violations permitted. Once the applicant exceeds a total of 180 days of status violations, the applicant becomes statutorily ineligible to adjust status.

One of the issues that CIS has focused on recently is whether H1B holders who changed job sites maintained lawful status. A labor condition application (LCA) is generally valid only for the job site named. If the new job site is within "normal commuting distance" (generally defined as 35 miles) of the original job site, the LCA can remain valid. If the new site is beyond that distance, or if there is a significant change in the terms and conditions of employment, then a new LCA is required.

In a case decided in federal court some years ago (CDI Information Services, Inc. v. Reno, 101 F. Supp. 2d 546, 549 (E.D. Mich. 2000), the court dealt with this issue. In that case, the court held that the beneficiary:

"failed to maintain his status previously accorded because he engaged in unauthorized employment in a state other than ... the one stated on the LCA."

The sole basis for this finding was that the H1B beneficiary worked at a job site for which the employer had not received a certified LCA.

In that employers are required by law to provide H1B employees with copies of all certified LCAs bearing on their employment, it will be difficult for an employee to claim that he or she had no knowledge of the employer's failure. Employees are presumed to know that valid LCAs are a necessary component of valid H1B employment authorization. The absence of an LCA when the employee moves to a new job site should set off an alarm telling the employee to verify that the employer complied with the law.

Failure to exercise this kind of due diligence could result in the employee's subsequent application for adjustment of status being denied on the basis that the employee engaged in unauthorized employment.