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 apply one time per authorized nonimmigrant validity period. Although the nonimmigrant is not authorized for employment during this grace period, this provision appears to provide greater flexibility in cases of sudden termination of employment. Of course, the grace period is only a valuable concept if the nonimmigrant foreign worker can quickly find a new job.
In addition to the foregoing, the new regulations clarify that E-1, E-2, E-3, L-1 and TN nonimmigrants (and their dependents) are eligible for a 10 day grace period, which is presently only available to H-1B workers. The nonimmigrant worker would have 10 days before the petition validity period (or other authorized validity period) and 10 days after the end of the validity period. It is likely that this ten (10) day grace period will manifest itself on the electronic I-94 Arrival/Departure Records of the nonimmigrant foreign workers after the regulation goes into effect.
The nonimmigrant worker during either the 10-day or 60-day grace period may apply for and be granted an extension of stay or change of status. The nonimmigrant worker may also start employment under H-1B portability provision. While remaining in the U.S. and without having to return to his/her Home County or to a third county for visa processing.
5. H-1B Extensions Beyond the Sixth Year. The new regulations confirm DHS’s current practice that grants H-1B status beyond the six-year maximum period of stay under AC21 but also provides some additional clarifications.
The DHS confirms, in the new regulation, that the H-1B nonimmigrant worker is eligible for an exemption from the six-year limit if the individual has previously held H-1B status and is otherwise eligible for an H-1B approval. The new regulations clarify individual is not required to physically be in the United States in H-1B status. Also, the new regulations clarify that the H-1B nonimmigrant worker may rely on any current I-140 approval and qualifying I-140 petition to get the extension beyond the sixth year.
To remain eligible for an extension, the foreign worker must apply for an adjustment of status or an immigrant visa within one year of the date an immigrant visa is authorized for issuance.
6. Portability for H-1B Workers. A nonimmigrant foreign worker can have successive H-1B Change of Employer petitions filed on his or her behalf. The worker may continue to maintain his/her work authorized status as long as each H-1B portability petition separately meets the requirements for H-1B classification and request for an extension of stay.
7. H-1B Cap Exemption. Under current policy, H-1B nonimmigrant workers are exempt from the cap based on their employment with: (1) institutions of higher education, (2) a nonprofit entity related to or affiliated with such an institution, or (3) a governmental or nonprofit research organization.
DHS has further expanded the definition for a nonprofit entity related to or affiliated with an institution of higher education to allow nonprofit entities to be exempt from the cap on the basis of having a written “affiliation agreement” with such an institution. In order to qualify the new regulations clarify that the written agreement needs to establish: (1) an active working relationship between the nonprofit entity and the institution for the purposes of research or education and (2) that one of the nonprofit entity’s fundamental activities directly contribute to the research or education that is provided by the academic institution.
DHS has also expanded the definition of “governmental research organization” in the new regulations by including federal, state, and local government research entities.
8. Eligibility for Employment Authorization in Compelling Circumstances. In the new regulations DHS allows certain beneficiaries of approved I-140 petitions (and their dependents) to apply for a one-year period of employment authorization (in very limited circumstances). Eligible beneficiaries are limited to: (1) nonimmigrants in E-3, H-1B, H-1B1, L-1, or O-1 status (which includes any individuals in any applicable grace period); and (2) beneficiaries of an approved I-140 petition who cannot obtain an immigrant visa number due to per-country limitations. The beneficiaries must demonstrate “compelling circumstances” that justify the grant of employment authorization. At this juncture, the new regulations do not define “compelling circumstances” but circumstances, when the agency may consider granting employment authorization, may be serious illness or disability, an employer dispute or retaliation, substantial harm to the applicant and family, or a significant disruption to the employer.
The new regulation clarify that the foregoing circumstances enumerated are not exhaustive.
The new regulations go on to point out that the beneficiary may seek renewals of the employment authorization in one-year increments if (1) he or she continues to face compelling circumstances and establishes that an immigrant visa number is unavailable based on the Final Action Date of the visa bulletin in effect on the date the renewal application is filed; or (2) the difference between his or her priority date and the Final Action Date is one year or less.
9. Employment Authorization Document Processing. In a much awaited regulatory subsection, the new regulation will grant an automatic extension of the Employment Authorization Document (EAD) for up to 180 days as long as the renewal application is based on the same employment authorization category as the existing EAD, the renewal application was timely filed prior to the expiration of the existing EAD, and the individual’s underlying eligibility for employment authorization continues beyond the EAD expiration. The extension is available only to certain foreign nationals, including adjustment of status applicants and individuals filing for renewal of their Optional Practical Training based upon a degree in a Science, Technology, Engineering, or Math (STEM) field. This provision does not apply to H-4, L-2, or E nonimmigrant spouses seeking an EAD renewal.
In the new regulations, the DHS also eliminated the provisions that mandate adjudication of an EAD application within a 90 day period and the section of the regulations that authorizes an interim EAD where adjudication takes more than the prescribed 90 days.
Of course, and to the best of our knowledge, this has never been granted anyway.
Finally, DHS also advised that the agency will adopt a filing policy that will permit individuals to file an EAD renewal application up to 180 days before the current EAD expires.
For more information, or to speak to one of the immigration and nationality lawyers or attorneys at the Nachman, Phulwani Zimovcak (NPZ) Law Group, P.C., please feel free to e-mail us at info@visaserve.com or to call us at 201-670-0006 (x107).