New Rule for Employment Based Visa Programs

Summary of Final Rule- to come into effect January 17, 2017.

DHS is amending its regulations related to certain employment-based immigrant and nonimmigrant visa programs. The final rule is intended to benefit U.S. employers and foreign workers participating in these programs by streamlining the processes for employer sponsorship of nonimmigrant workers for lawful permanent resident (LPR) status, increasing job portability and otherwise providing stability and flexibility for such workers, and providing additional transparency and consistency in the application of DHS policies and practices related to these programs.

This summary only includes those changes which we deal with in our practice.

1. Automatic Revocation/ Approval of I-140 petition

A Form I–140 petition will remain approved if a request to withdraw it is received or the petitioner terminates its business 180 days or more after either, (i) the date of the petition’s approval, or (ii) the date of filing of an associated application for adjustment of status. (N.B. If withdrawn/ business terminates before 180 days, there is an automatic revocation of the I-140 approval but the priority date is still retained except as described in #2 below.) However, such a petition may not be used to obtain lawful permanent residence, unless it meets the requirements of INA 204(j) (‘same or similar occupation’). The advantages of this new regulation are that it (i) Affords porting ability under INA 204(j); (ii) extension of H–1B status pursuant to AC21 sections 104(c) and 106(a) and (b); and (iii) potential eligibility for the new ‘compelling circumstances EAD’. (See below)

2. Priority Date Retention

Priority date retention will generally be available unless USCIS denies the petition or revokes the petition’s approval due to: (1) Fraud or a willful misrepresentation of a material fact; (2) revocation, by DOL or invalidation, by USCIS, of the labor certification associated with the petition or (3) a determination that there was a material error with regards to USCIS’s approval of the petition. Examples of material error: An adjudicator relied on an inaccurate employer identification number and associated financial information that did not pertain to the petitioner; information later comes to light indicating that the petitioner did not establish the ability to pay under the applicable regulatory criteria; or an adjudicator finds evidence in a subsequent related matter that the beneficiary did not have the education or experience required for the position offered.

3. Grace Periods

10 day Grace Period: An alien admissible in E–1, E–2, E–3, H–1B, L–1, TN, O, & P classification, plus dependents, will get a 10-day grace period before and after the petition validity dates. During this grace period they are eligible to change jobs, or take other actions to extend, change, or otherwise maintain lawful status.

This is very useful as USCIS has previously distinguished this grace period as being ‘in a period of stay authorized by the AG’ but NOT in ‘valid status’.

60 day Grace Period: USCIS will not consider an individual (in E–1, E–2, E–3, H–1B, L–1, TN, O) to have failed to maintain nonimmigrant status for a period of up to 60 days, or until the end of the authorized validity period, whichever is shorter, solely because he/ she may lose their job. DHS may consider such an individual to have not violated his or her nonimmigrant status and allow that individual to change status/ extend his or her stay with a new petitioner, if otherwise eligible. The 60-day grace period may be provided to an individual only once per authorized validity period. However, an individual may be provided similar 60 day grace periods if he or she receives a new authorized validity period in one of the eligible nonimmigrant classifications and again loses that job too. The individual may not work during the grace period unless a porting petition is filed on his behalf.

This will be most helpful to employees who lose their jobs but not such good news for employers!

4. H-1B Portability

H–1B employers can file successive H–1B portability petitions (often referred to as ‘‘bridge petitions’’) on behalf of H–1B nonimmigrant workers. While you can file a new petition while the earlier one is pending, if the earlier H–1B portability petition for an extension of stay was denied and the individual’s Form I–94 authorizing admission in or extension of H–1B status has expired, a request for an extension of stay in any successive H– 1B portability petition(s) must also be denied. An H–1B beneficiary who has a valid and unexpired Form I– 94 remains in a period of authorized stay. As long as the petitioner can demonstrate that the beneficiary remained in valid H–1B nonimmigrant status when a successive portability petition was filed, the timely filed petition and associated extension of stay request should not be denied simply because of a denial or withdrawal of the preceding portability petition. DHS does not consider an H–1B portability petition that is filed before the validity period expires to constitute a ‘‘bridge”. H-1B portability does not apply to a nonimmigrant who is in a valid status other than H–1B.

International Travel and Portability: DHS has long acknowledged that otherwise admissible H–1B nonimmigrants may travel and be admitted in H–1B status while H–1B portability petitions on their behalf are pending. However, individuals requesting admission as H– 1B nonimmigrants must prove at the port of entry that they are eligible for admission in that status. Generally, if an individual’s original H–1B petition has expired prior to the time that the beneficiary seeks admission to the United States, or if such petition is otherwise no longer valid, the beneficiary must present evidence that USCIS has approved a new H–1B petition to be admitted to the United States. If the original H–1B petition has not yet expired, however, the beneficiary of an H–1B portability petition who travels abroad may be admissible if, in addition to presenting a valid passport and visa (unless visa- exempt), he or she provides a copy of the previously issued Form I–797 approval notice for the original H–1B petition (evidencing the petition’s validity dates), and a Form I– 797 receipt notice demonstrating that the new H–1B petition requesting an amendment or extension of stay was timely filed on the individual’s behalf.

This is important. While we do this for ‘Amendments’ all the time, with the employee traveling once the Amended petition has been filed, the rules suggest this is possible even when porting to a new employer.

5. Licensing

For occupations that require a license, H-1B petitions can be filed for cases where the nature and level of duties to be performed, will be under the supervision of a licensed supervisor and that the petitioner is complying with any State requirements. Approvals will also be granted for 1 year periods where the only reason the employee does not have a license is because he does not have a SS# or authorized employment or other technical reasons. He must document that he is fully qualified to receive the license and has all educational, training, experience and other substantive requirements have been met.

6. Cap Exempt Petitions

Recapture of Time: DHS is amending the regulatory text to clarify that there is no temporal limit on recapturing time. The amendment makes clear that such time may be recaptured in a subsequent H–1B petition on behalf of the foreign worker, ‘‘at any time before the alien uses the full period of authorized H–1B admission described in section 214(g)(4) of the Act.’

This is important. We have had denials because USCIS claimed the previous H-1B approval was obtained earlier than 6 years ago. This can no longer be the case and once counted in the CAP an individual can recapture the 6 years he is entitled to, at any time.

There are also new definitions for entities that qualify as ‘Cap Exempt’ for purposes of ACWIA fees and the H-1B Numerical Limits. I have not summarized them as we rarely do these cases.

7. AC 21

No requirement for the LC to have been filed before the 5th Year: DHS has clarified that a qualifying labor certification or Form I–140 petition is not required to be filed 365 days before the 6-year limitation is reached in order for the individual to be eligible for an exemption under section 106(a) of AC21. Instead, the labor certification or Form I–140 petition would need to be filed at least 365 days before the day the exemption would take effect.

This is an important change back to the initial AC 21 rules.

8. Supplement J

New Form I–485 Supplement J is the form DHS intends to be used for an individual to demonstrate continuing eligibility for adjustment of status based on an existing or new job offer in the same or similar occupational classification.

9. EAD Extensions

This final rule automatically extends the employment authorization and validity of existing EADs issued to certain employment-eligible individuals (15 categories of which a pending AOS applicant- C(9)- is one) for up to 180 days from the date of expiration, as long as: (1) A renewal application is filed based on the same employment authorization category as the previously issued EAD; (2) the renewal application is timely filed prior to the expiration of the EAD; and (3) the individual’s eligibility for employment authorization continues beyond the expiration of the EAD and an independent adjudication of the underlying eligibility is not a prerequisite to the extension of employment authorization. Hence automatic extensions will not be applicable for F-1 OPT, H-4 EAD, L2 or J-2. [But automatic 180-day EAD extensions for F–1 nonimmigrant students who timely file requests for STEM OPT extensions is already permitted.] Concurrently, DHS eliminates the regulatory provisions that require adjudication of Form I–765 or EAD applications within 90 days of filing. Applicants not covered by the automatic 180-day extension of employment authorization will continue to be able to call the National Customer Service Center (NCSC) if their application is pending for 75 days or more to request priority processing. Applicants covered by the 180-day can call after 165 days. EAD Extensions can be filed up to 180 days in advance and with the removal of the 90 day processing time it is important to urgent F-1 students, H-4 EAD spouses, L-2s to file early.

Once an automatic EAD Extension is filed, the combination of the qualifying Form I–797C (Receipt Notice) and expired EAD is the equivalent of an unexpired EAD. In other words, an expired EAD with the extension receipt (for automatic extension in the same category) will be sufficient for I-9s. USCIS will also discuss this with DMV and hopefully this will also be accepted for renewal of driving licenses.

10. EAD for Compelling Circumstances

EAD for compelling circumstances is a new provision: To obtain a temporary grant of compelling circumstances employment authorization, an individual must (1) be in the United States in E–3, H–1B, H– 1B1, O–1, or L–1 nonimmigrant status, including in any applicable grace period, on the date the application for employment authorization is filed; (2) be the principal beneficiary of an approved Form I–140 petition; (3) establish that an immigrant visa is not authorized for issuance based on his or her priority date, preference category, and country of chargeability according to the Final Action Date in effect on the date the application is filed; and (4) demonstrate compelling circumstances that justify the exercise of USCIS discretion to issue an independent grant of employment authorization.

This EAD is limited to 1 year but can extended in 1-year increments if: (1) He or she continues to face compelling circumstances and establishes that an immigrant visa is not authorized for issuance based on his or her priority date, preference category, and country of chargeability according to the Final Action Date in effect on the date the renewal application is filed; or (2) the difference between his or her priority date and the relevant Final Action Date is 1 year or less (without having to show compelling circumstances).

Family members of these individuals to also apply for employment authorization for the same validity. N.B. Applicants who have been convicted of any felony or two or more misdemeanors are ineligible for employment authorization under the compelling circumstances provision.

What constitutes a ‘compelling circumstance’? DHS provided four examples of situations that, depending on the totality of the circumstances, may be considered compelling and justify the need for employment authorization: (1) Serious illness or disability faced by the nonimmigrant worker or his or her dependent that entails the worker moving to another part of the country for treatment or otherwise substantially changing his or her employment circumstances; (2) Employer retaliation against the nonimmigrant worker; (3) Substantial Harm because a nonimmigrant worker is unable to timely extend or otherwise maintain status, or obtain another nonimmigrant status, and absent continued employment authorization under this proposal the applicant and his or her family would suffer substantial harm. [Some instances of ‘substantial harm could be: a U.S. entity that is unexpectedly terminating its business; a family forced to relocate and return home; approaching the end of 6 year limit could be one of the factors considered when weighing the totality of the circumstances. Job loss alone will not be considered substantial harm to the applicant, unless an individual can show additional circumstances that compound the hardship associated with job loss]; and (4) Significant disruption to the employer. [For instance an L-1 employer that subsequently undergoes corporate restructuring (e.g., a sale, merger, spin-off) such that the worker’s new employer is no longer a multinational company eligible to employ L–1 workers; an H–1B nonimmigrant worker who provides critical work on biomedical research for a non-profit entity, affiliated with an institution of higher education, that subsequently reorganizes and becomes a for-profit entity and there are no CAP numbers available for him.]

These situations are meant to be only [illustrative, as compelling circumstances will be decided on a case-by-case basis and may involve facts that vary from those provided above.

Nonimmigrant principal workers who take advantage of the compelling circumstances EAD will lose their current nonimmigrant status and may not be able to adjust to LPR status in the United States. This would mean Consular processing which means potentially significant costs, risks and uncertainty. If an individual working on a compelling circumstances EAD finds an employer who is willing to sponsor him or her for a nonimmigrant classification (eg. H-1B) he or she would have to leave the United States and may need to obtain a nonimmigrant visa from a consulate or embassy overseas before being able to return to the United States to work in that status. Once the individual has been admitted in nonimmigrant status, he or she may be eligible to adjust status to lawful permanent residence, if otherwise eligible.