MORE OF THE SAME – THE OBAMA IMMIGRATION LEGACY – SKILLED LABOR REGULATION TO EASE JOB PORTABILITY WITH NOT A MOMENT TO SPARE.

The final version of the long-awaited U.S. Department of Homeland Security (DHS) regulation, “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers,” was recently promulgated and it is due to take effect on January 17, 2017.

The rule updates and amends current regulations and guidance concerning employment-based visa programs to better enable U.S. employers to sponsor and retain highly-skilled nonimmigrant workers and provide greater stability and job flexibility for those workers. The rule also clarifies several agency guidance memoranda, judicial determinations and procedures and seeks to provide consistency among agency adjudications.

The new regulation is quite comprehensive and addresses numerous areas of skilled worker visa nuances. However, the key provisions that employers and foreign workers may be interested in are discussed below.

1. Retention of Approved Immigrant Visa (I-140) Petitions. The new regulations clarify that an approved I-140 Immigrant Petition for intending immigrant worker – a petition submitted by an employer documenting an offer of permanent employment – may no longer be automatically revoked based upon a request to withdraw by the petitioning employer. Nor can it be automatically revoked based on the termination of the employer’s business 180 days after either the I-140’s approval or the filing of an associated I-485 application for adjustment of status. However, the new regulations clarify that the intending immigrant worker cannot retain the I-140 approval if DHS revokes the petition approval for fraud, material misrepresentation, invalidation or revocation of the underlying labor certification, or material error.

2. Retention of Priority Dates. An individual’s “priority date” determines his or her place in the line for an immigrant visa number. The intending immigrant worker retains the priority date associated with an I-140 petition approval as long as DHS does not revoke the petition approval for fraud, material misrepresentation, invalidation or revocation of the underlying labor certification, or for a material error. In other words, the intending immigrant worker retains his/her priority date as soon as the petition is approved.

3. Job Portability. The new regulations clarify the portability provisions of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), which permits an adjustment of status applicant to change jobs or employers without the need for a new labor certification or I-140 petition if the application for adjustment of status has been pending for 180 days or more and the new offer of employment is in the “same or similar occupational classification” as the position listed in the original approval immigrant visa petition. The new regulations require the adjustment of status applicant to submit a supplementary form (Form I-485 supplement J) and any supporting material and credible documentary evidence that sets forth the new position description and evidence to demonstrate that the new employment offer constitute a position that is in a “same or similar occupational classification”. The new regulations clarify that the applicant may either submit the supplement affirmatively or in response to a request (RFE) from the U.S. Citizenship and Immigration Services (USCIS).

4. Nonimmigrant Grace Periods. The new regulations have established two different grace periods for certain nonimmigrant workers.

When the nonimmigrant foreign worker’s employment ends, the nonimmigrant foreign worker (and his or her dependents) are eligible for a one time single grace period of up to 60 days or until the existing validity period end, whichever is shorter. This applies to individuals in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN status. The nonimmigrant may benefit from the 60 day grace period multiple times; however, the nonimmigrant foreign worker may only