United States: USCIS Publishes Proposed Regulations Codifying Many Of Its Existing Administrative Policies With Some Modifications: Comment Period Ends On February 29, 2016

On December 31, 2015, U.S. Citizenship and Immigration Services (USCIS) published proposed rules in the Federal Register. Many of the proposals codify existing USCIS administrative memoranda and decisions with some modifications. The following are some of the key proposals.

  • One-time 60-day grace period after the end of employment for foreign national workers in E, H-1B, L and TN employment-based nonimmigrant visa statuses (e.g., after a layoff, etc.). This would allow foreign national workers to find another employer to sponsor them for a work visa or give them time to settle their affairs in the United States before returning to their home country. The current regulations give only a 10-day grace period upon the completion of a nonimmigrant visa petition, but no grace period if employment ends early (e.g., after a layoff, etc.), which means the foreign national worker has to immediately depart the United States, giving them no time to find another employer to sponsor them for a work visa or time to settle their affairs in the United States.
  • Codifies which organizations are exempt from the annual H-1B cap, and this includes universities, nonprofit research organizations, government research organizations and related or affiliated nonprofit organizations.
  • Codifies H-1B portability, which allows H-1B workers who change employers to begin work with a new employer as soon as a change of employer H-1B petition is filed, as opposed to waiting for the petition to be approved.
  • Codifies three-year H-1B extensions under AC21, which allows H-1B workers to extend their H-1B status beyond the six-year maximum when they have approved I-140 immigrant petitions but cannot receive their green card due to the immigrant visa priority date backlog.
  • Codifies one-year H-1B extensions under AC21, which allows H-1B workers to extend their H-1B status beyond the six-year maximum when they have filed a PERM Labor Certification or I-140 immigrant petition 365 days before the six-year maximum is reached and/or they file for an adjustment of status or an immigrant visa within one year of their being eligible (immigrant visa priority date is reached).
  • Special eligibility for H-1B whistleblowers, which allows H-1B workers, who face retaliation from employers for reporting violations of the H-1B Labor Condition Application, to change to another employer or status even if the retaliating employer has already terminated them.
  • Codifies adjustment of status portability, which allows foreign national workers with approved I-140 immigrant petitions and adjustment of status applications that have been pending for 180 days or more to change jobs provided that the new position is in the "same or similar occupational classification" as the one included in the original approved I-140 petition. The foreign national workers are then later allowed to complete the green card process once their immigrant visa priority date becomes current, provided their original I-140 immigrant petition is not revoked for fraud or misrepresentation. The proposed rule has a broad provision that would allow a second adjudicator to decide the prior I-140 immigrant petition approval was in "error," which would also prevent a foreign national worker who has already changed employers to complete their green card process. Employers should consider submitting comments on this proposed rule to remove the provision that would allow USCIS to decide years later to second-guess the approval of an I-140 immigrant petition where there was no fraud or misrepresentation.
  • Automatic EAD extensions, which would give certain foreign national workers renewing their Employment Authorization Document (EAD) an automatic extension of 180 days of employment authorization while their application is pending if they are renewing in the same category before their current EAD expires. Additionally, expired EADs and receipt notices showing the EAD renewal was timely filed would serve as I-9 evidence.
  • EADs for certain workers with approved I-140 petitions, which would allow E-3, H-1B, H-1B1, L-1 or O-1 nonimmigrant status holders and their dependents to apply for a one-year EAD if they meet a number of criteria, including if they "face 'compelling circumstances,' such as a geographic move due to serious illness or disability; employer retaliation; other substantial harm if required to return home; or significant disruption to their employers." Employers should consider submitting comments on this proposed rule as USCIS has made the requirements for EADs without pending I-485 applications narrow, as to benefit only a limited number of foreign national workers. Expanding the qualifications for this benefit would likely help foreign national workers and U.S. employers.

Simeio Safe Harbor Ended on January 15, 2016

Per the USCIS policy memorandum based on the Administrative Appeals Office's decision in the Matter of Simeio Solutions, LLC, after January 15, 2016, if an H-1B employee changes worksite locations to a different Metropolitan Statistical Area, an amended H-1B petition must be filed beforehand. There will no longer be any exceptions, as the safe harbor expired on January 15, 2016, which allowed for the late filing (on or before January 15, 2016) for H-1B employee worksite moves to a different Metropolitan Statistical Area that occurred between April 9, 2015 to August 19, 2015.

Effective February 16, 2016, H-1B1 and E-3 Workers with Timely Filed Extensions with USCIS Remain Work Authorized for up to 240 Days While the Extension Is Pending

The Department of Homeland Security final rule, which becomes effective on February 16, 2016, grants H-1B1 (Chile/Singapore) and E-3 (Australia) workers the same benefit of 240 days of continued work authorization for timely filed extensions with USCIS as H-1B and TN workers already receive.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.

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