News Release from Jewell Stewart & Pratt – November 22, 2016
On November 18, 2016, the U.S. Department of Homeland Security (DHS) published a Final Rule, 81 FR 82398, effective January 17, 2017, that amends certain regulations governing employment-based immigrants and high-skilled non-immigrant workers. It is called, “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers.”
The new regulations or “final rules” create and amend regulations related to employment-based visa programs. They are intended to better enable U.S. employers retain high-skilled nonimmigrant workers through temporary and permanent sponsorship, and to provide job flexibility and certainty to foreign workers who have been in the United States for some time. It provides clarity and agency instructions regarding certain sections of the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) and the American Competitiveness in the Twenty-first Century Act of 2000 (AC21).
Extending H-1B status for workers being sponsored for Permanent Residency
Three-year extensions based on per country limitations
Consistent with AC21, DHS states in the final rule that an employer may extend an employee’s H-1B status beyond the six-year limit, on the basis of an approved I-140 filed on his or her behalf, so long as the employee is subject to a country-specific or worldwide immigrant visa limitation in accordance with his or her priority date (an employee’s placeholder for an immigrant visa number).
The determination for an employer’s eligibility to extend the employee’s H-1B status is based on a review of the Visa Bulletin in effect at the time the H-1B extension petition was filed. If the Visa Bulletin applicable at the time of filing shows the employee’s priority date is not “current,” i.e., he or she cannot apply for Permanent Residency (also called a “green card”), then the H-1B extension request may be granted for a period of up to three years. This rule allows employers to continue extending their employees’ H-1B statuses until the affected employees are able to complete the Permanent Residency process.
Extension petitions pursuant to this rule may be filed within six months of the requested H-1B start date, and the employer petitioning for the H-1B extension beyond the six-year limit is not required to be the same one that filed the underlying I-140 used to qualify for this exemption.
One-year extensions based on lengthy adjudication delays
The final rule confirms and clarifies the circumstances under which an H-1B nonimmigrant worker may be eligible for one-year increments of H-1B extensions beyond the general six-year H-1B limit when the H-1B worker is subject to lengthy adjudication delays in the permanent residence process. To qualify, the H-1B worker must have had an application for permanent labor certification (also known as a PERM application) filed with the Department of Labor or an immigrant visa petition (Form I-140) filed with USCIS on his or her behalf at least 365 days before the date the exemption would take effect (i.e., the requested extension start date), and not at least 365 days prior to the end of the six-year H-1B limit.
The final rule also includes the following provisions:
- One-year extensions are permitted until either the labor certification expires (a certified labor certification is only valid for 180 days, during which an I-140 must be filed otherwise it lapses) or a final decision is made to (1) deny the labor certification, (2) revoke or invalidate the labor certification, (3) deny the immigrant visa petition, (4) revoke approval of the immigrant visa petition, (5) grant or deny adjustment of status (Form I-485) or an immigrant visa (Form I-140), or (6) administratively close one of these applications.
- Extensions based on adjudication delays may be filed up to 180 days before the requested H-1B start date and can include any periods of time the H-1B worker spent outside the U.S. to be recaptured.
- An H-1B worker will not be eligible for an extension based on adjudication delays if he or she fails to apply for adjustment of status (Form I-485) or an immigrant visa within one year of the date an immigrant visa becoming available based on the relevant Final Action Date in the Visa Bulletin. This one-year clock resets when an immigrant visa is no longer available (i.e., if priority dates retrogress). Also, failure to timely file based on circumstances beyond the worker’s control may be excused at the discretion of USCIS.
- Each petition approval will provide the H-1B worker with a new expiration date for their H-1B admission. Only one petition may be used to support an extension and multiple petitions cannot be aggregated.
- The extensions are available to beneficiaries not currently in the U.S. at the time the H-1B petition is filed.
- Extensions based on adjudication delays are permitted even if the H-1B petitioning employer is not the employer that filed the labor certification or I-140 that is the basis for the extension.
- Spouses and children in H-1B status are not eligible for the one-year extensions; instead, the benefit only extends to H-4 dependents.
Recapturing the remainder of the initial six-year period of admission
The final rule states that any time exceeding 24 hours that an alien spends outside the United States, during their initial six-year period of H-1B admission, is not considered for purposes of calculating the alien’s total time in H-1B status. This time can be recaptured at any point during the initial six years of H-1B status. Time spent inside the United States in a nonimmigrant status other than H-1B or L-1 is also “recapturable.”
The rule lists appropriate evidence that can be provided in support of recapture, including copies of passport stamps, Arrival-Departure Records (Form I-94), or airline tickets, and reminds the H-1B petitioner that it is their burden to request and demonstrate the specific amount of time for recapture.
H-1B cap-exempt employment
The final rule codifies DHS’s current policies for determining which H-1B employers qualify as a “cap-exempt” institution, including: an institution of higher education; a nonprofit entity related to or affiliated with an institution of higher education; a nonprofit research organization; or a governmental research organization.
- The final rule confirms DHS’s current interpretation of “institution of higher education” providing that DHS’s definition mirrors section 101(a) of the Higher Education Act of 1965.
- The rule confirms DHS’s current definition a nonprofit entity related to or affiliated with an institution of higher education with one modification to its interpretation of “related or affiliated nonprofit entity.” Currently, a nonprofit entity must establish that it is related to or affiliated with an institution of higher education, which may be demonstrated through (1) shared ownership or control by the same board or federation; (2) operation by an institution of higher education; or (3) attachment to an institution of higher education as a member, branch, cooperative, or subsidiary. The new rule adds a fourth way a nonprofit entity can qualify, which is the through a formal written affiliation agreement that establishes (a) an active working relationship between the two parties for purposes of research or education, and (b) as a fundamental activity, the nonprofit entity directly contributes to the research or education mission of the institution of higher education. DHS notes that nonprofit entities may qualify for the cap even if their organization engages in more than one activity that is considered “fundamental” to the organization.
- The rule confirms DHS’s existing interpretation of a “nonprofit research organization” as described by H-1B fee exemptions regulations.
- The rule also clarifies DHS’s interpretation of “government research organization” to include state and local research entities – not just federal research entities whose primary mission is the performance or promotion of basic research and/or applied research.
- The rule also exempts all four types of cap-exempt institutions from H-1B fees imposed by American Competitiveness and Workforce Improvement Act of 1998 (“ACWIA”).
- The rule codifies DHS’s other existing policies and practices in this area including: (1) the requirements for exempting H-1B nonimmigrant workers from the cap in cases in which they are not directly employed by a cap-exempt employer)); (2) the application of cap limitations to H-1B nonimmigrant workers in cases in which cap-exempt employment ceases; and (3) the procedures for concurrent cap-exempt and cap-subject employment.
The final rule confirms the ability of H-1B nonimmigrant workers to begin employment with new H-1B employers upon the filing of non-frivolous petitions for new H-1B employment (a “portability petition”). To be eligible for this the H-1B worker: (1) must have been lawfully admitted into the United States; (2) must not have worked without authorization after such lawful admission; and (3) must be in a period of stay authorized by the government. The portability petition must be filed while the foreign worker is in H-1B status or in a period of authorized stay based on a timely filed H-1B extension petition. Employment authorization under a pending portability petition lasts until the petition is adjudicated.
Successive H-1B portability petitions
The final rule confirms the ability of H-1B employers to file successive H-1B portability petitions on behalf of H-1B nonimmigrant workers. This means that an H-1B worker who has changed employment based on an H-1B portability petition may again change employment based on the filing of a new portability petition, even if the former portability petition remains pending.
Successive portability petitions may provide employment authorization as long as each petition meets the requirements for H-1B classification and an extension of stay. However, if the request for an extension of stay is denied in a preceding portability petition, and the individual’s Form I-94 has expired, a request for an extension of stay in any successive portability petition(s) must also be denied.
Job portability for certain adjustment of status applicants
Consistent with AC21, the final rule provides instruction to long-standing agency policy regarding the “porting” of an employee’s adjustment of status process to a new employer.
- An addition to Form I-485, the Supplement J (to be added by USCIS) will be used to standardize the collection of information about the new job offered.
- The applicant will need to meet three prongs for porting: (1) where Form I‑485 has been pending for 180 days; (2) moving to the same or similar occupation; and (3) establish continuing eligibility for an adjustment of status with the underlying I-140 petition either approved, or approvable.
- The former employer’s ability-to-pay is assessed up to the time of filing the petition, but all other eligibility criteria must be met at the time of filing and until the adjustment of status application has been pending for 180 days.
- The determination of whether the applicant is moving to a new position in the same or similar occupation will follow the guidelines set out in the 03/16/16 USCIS Policy memo.
- If the two positions are not identical or resemble in every relevant respect, an analysis and determination as to whether they are similar will be done. In cases where there is career progression, USCIS will look at the preponderance of the evidence to show a similar occupational classification.
- Applicants with an I-140 petition filed under a National Interest Waiver or in the EB-1 visa preference for extraordinary ability are exempt from filing the supplement.
Employment Authorization (EAD) Based on Compelling Circumstances
This rule provides short-term relief to high-skilled individuals who are already on the path to permanent residence, but find themselves in a particularly difficult situation, generally outside their control, while they are waiting for an immigrant visa to become available. This one-year benefit is available to applicants currently in one of these nonimmigrant statuses: H‑1B, H-1B1, O-1, L-1, or E-3.
- The applicant must have an approved I-140 petition (EB-1, EB-2, or EB-3) but is waiting for an immigrant visa to become available (established by the Final Action Date in effect on the date the EAD application is filed).
- The applicant must provide compelling circumstances such as a serious illness or disability faced by the applicant or dependent, employer retaliation against the applicant, other substantial harm to the applicant, or where there would be significant disruption to the employer.
- There is no eligibility for the benefit where the applicant has been convicted of a felony or two misdemeanors.
- Authorization can be renewed in one-year increments, and the compelling circumstances do not have to be the same (or where there is less than one year difference between the applicant’s priority date and the Final Action Date on the date the renewal is filed, compelling circumstances do not have to be demonstrated).
- Dependents may also apply, but employment authorization will be tied to the date of the principal applicant.
- This type of EAD does not grant an underlying nonimmigrant status; however, applicants who are beneficiaries of this EAD will not be accruing unlawful presence. USCIS policy guidance is to be adjusted to consider this EAD period to be in a period of approved stay.
- Unless the successful applicant is able to acquire a new nonimmigrant status, they will not be able to adjust their status to a permanent resident and will therefore have to process their immigrant visas from outside the U.S., once they become available.
Revocation of approved employment-based immigrant visa petitions
The final rule amends existing automatic revocation regulations for immigrant visa petitions (Form I-140). Under the new rule, I-140s will not be automatically revoked if:
- the petition has been approved for 180 days or more and based solely on: (1) the sponsoring employer’s withdrawal of the I-140; or (2) the termination of the employer’s business; or
- the petition is withdrawn or the business terminates 180 days after an associated adjustment of status (Form I-485) is filed.
I-140s will continue to be valid for priority date retention purposes unless approval is revoked on the following grounds: (1) fraud or a willful misrepresentation of material fact; (2) revocation by the Department of Labor of the approved permanent labor certification that accompanied the I-140 petition; (3) invalidation by USCIS or the Department of State of the permanent labor certification that accompanied the I-140 petition; and (4) a determination by USCIS that I-140 approval was based on material error.
In the event that an I-140 has been withdrawn or revoked, the Department of Homeland Security has confirmed that a new I-140 petition must be filed on behalf of the foreign national worker or, if eligible, the foreign national worker must have a new offer of employment in the same or a similar occupational classification for job portability.
Retention of priority dates
A priority date can be thought of as an applicant’s placeholder in line for an immigrant visa number. The priority date, as well as the employment-based immigrant category through which a worker qualifies for Permanent Residency (a “green card”), is established by an approved Form I-140, which is filed by an employer on the worker’s behalf. Generally, once an I-140 is approved, the worker can reuse, or retain, that initial priority date for use with another EB-1, EB-2, or EB-3 Form I-140, should subsequent petitions be filed on his or her behalf.
Prior regulations did not allow workers to retain priority dates in all instances in which approval of a Form I-140 was revoked. With its newly-amended rule, however, DHS states that priority dates will be available even if the I-140 is revoked, so long as the revocation was not for (1) fraud or willful misrepresentation of a material fact; (2) invalidation or revocation of a labor certification that accompanied the I-140 petition; or (3) a determination that there was a material error behind USCIS’s approval of the I-140 petition.
This rule therefore allows many employment-based workers subject to backlogs to continue to retain the earliest established priority date for future I-140s filed on their behalf.
Grace periods for nonimmigrant workers
10-day grace period
The final rule gives DHS the authority to grant two “grace periods,” of up to 10 days, to nonimmigrant workers in the E-1, E-2, E-3, L-1 and TN classifications. The rule is designed to extend grace periods, similar to those currently available to H-1B, O, and P nonimmigrants, to these other high-skilled temporary worker classifications which have not previously been afforded these periods.
The rule provides for an initial grace period, of up to 10 days, prior to the start of a nonimmigrant petition validity period (or other authorized validity period). This initial grace period is designed to give these nonimmigrants a reasonable amount of time to enter the U.S. and get sufficiently settled that they are immediately able to begin working when the petition validity period begins. The rule also provides for a second grace period for same nonimmigrant categories, of up to 10 days, after the end of the worker’s nonimmigrant validity period to allow the worker to wrap up his or her affairs and prepare for departure.
The final rule specifically prohibits employment during either 10-day grace period (initial or post-validity), unless otherwise authorized. Although E-1, E-2, E-3, L-1, and TN nonimmigrants may not be employed during this time, the rule makes it clear that they may apply for, and be granted an extension of stay or change of status, if otherwise eligible, during an either the initial or post-validity grace period.
60-day grace period for employment termination
The final rule provides a grace period of up to 60 days for E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN nonimmigrants during the validity period of the nonimmigrant petition, or other authorized validity period.
The purpose of this grace period is to provide stability and flexibility to qualifying nonimmigrants facing employment termination prior to the end of their petition validity periods. It allows the nonimmigrant to remain the United States without violating their status for up to 60 days, or until the end of the existing validity period, whichever is shorter. During this time, the nonimmigrant may seek new employment and/or apply for, and be granted, an extension of stay or change of status (if eligible). The rule also states that a qualifying H-1B nonimmigrant, under the H-1B portability rules, may begin employment with a new H-1B employer during this grace period. For employers, the grace period is designed to easily facilitate employment changes for existing or newly-recruited nonimmigrant workers.
The final rule permits DHS to grant multiple 60-day grace periods to a single individual, during the person’s total time in the U.S.; however, to prevent abuse of this provision, the grace period may only apply one time per authorized nonimmigrant validity period.
Employment is prohibited during the 60-day grace period unless otherwise authorized. The new rule also provides DHS the authority to make a discretionary determination to shorten or entirely refuse the 60-day grace period for reasons which may include violations of status, unauthorized employment during the grace period, fraud or national security concerns, or criminal convictions, for example.
H-1B occupations that require licensure
The amended regulations incorporate and clarify current DHS policy and practices that provide for a temporary exception to the licensure requirement and allow foreign workers, such as pharmacists, teachers, and architects, to perform duties without a license in an occupation that generally requires a professional license.
First, the amended regulations allow for an unlicensed beneficiary, to work under the supervision of licensed senior or supervisory personnel. Incorporated in the new law are long-standing DHS policies and practices that require detailed evidence concerning the duties to be performed by the prospective H-1B worker, as well as the identity, physical location, and credentials of the individuals(s) who will supervise the worker. Also, it must be shown that such an arrangement is in compliance with state or local licensure requirements.
Second, the new regulations incorporate current DHS policy that indicates H-1B status can be granted without a license if the prospective H-1B worker faces certain obstacles in obtaining the license. These obstacles, which typically place a prospective H-1B worker in a Catch-22 situation, include: 1) unable to obtain a social security number; 2) unable to obtain legal authorization to work in the U.S; or 3) unable to fulfill a similar technical prerequisite to obtaining licensure. In these circumstances, corroborating evidence must be provided from the relevant licensing authority as well as evidence showing the beneficiary has applied for the appropriate license, or show that the beneficiary is prohibited from applying until the beneficiary first meets the technical requirements. The prospective H-1B worker must otherwise qualify to receive a license by having met all educational, training, experience, and other substantive requirements.
These temporary exception rules allow H-1B status to be granted for up to one year. Subsequent H-1B status will not be granted unless the required license has been obtained, or the beneficiary is employed in a different position or location that requires another type of license or does not require a license.
Finally, these amended regulations do not extend to H-1B status for physicians, and the existing regulations and policies governing physicians will remain enforced.
Processing of Employment Authorization Documents
The new rules provide for several changes surrounding the processing of Employment Authorization Documents (“EADs”):
- The rule automatically extends employment authorization and validity of EADs (Form I-766) for up to 180 days if the request for renewal is (1) properly filed before the expiration date shown on the face of the EAD; (2) based on the same employment authorization category as shown on the expiring EAD (or is for an individual approved for TPS); or (3) based on an employment authorization category that does not require adjudication of an underlying application or petition before adjudication of the renewal application (including people granted TPS).
- The period of extended employment authorization will automatically terminate the earlier of up to 180 days after the expiration date of the EAD or upon issuance of notification of a decision denying the renewal request.
- For I-9 purposes, an EAD card that has expired on its face is considered unexpired when combined with a Notice of Action (Form I-797C -- receipt notice for the timely I-765 filing) demonstrating that the requirements of the Rule (filed before expiration date on EAD, in same employment authorization category, and in a category that does not require adjudication of an underlying application or petition) have been met.
- DHS is expanding the filing window to 180 days before expiration, except when impracticable.
- DHS has eliminated the requirement that Forms I-765 must be adjudicated within 90 days, and USCIS will also stop issuing interim employment authorization documents when adjudication is not completed within the 90-day timeframe.
This article is for information only. It is not intended as legal advice, and should not be relied upon as legal advice in any specific case.
© Jewell Stewart & Pratt 2016