United States: U.S. Department Of Homeland Security Issues Final Rule On Immigrant Visa Petition Retention And Program Improvements Affecting High-Skilled Nonimmigrant Workers

Last Updated: November 23 2016
Article by Robert Neale

On November 18, 2016, the Department of Homeland Security (DHS) issued its final rule in the Federal Register which addresses the retention and portability of high-skilled foreign workers. The new regulations, which take effect January 17, 2017, allow greater flexibility to certain foreign workers subject to long green card quota backlogs to change employers without negatively affecting their pending green card applications. The new regulations also codify many agency interpretations that exist as agency guidance memorandums and nonbinding agency communications.

The main provisions of the regulations can be grouped into three sections, (1) clarifying and further implementing certain provisions of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) and the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), (2) improving stability and job flexibility for certain long-delayed foreign workers, and (3) processing of certain applications for employment authorization documents (EAD cards), as follows:

Clarifications to AC21 and ACWIA

1. AOS Portability under INA 204(j): The rule codifies DHS policy and practice regarding requests to port under INA section 204(j), as follows:

a) There must be a valid offer of employment at the time the Form I-485 is filed and adjudicated. The job offer may either be the original job offer or, pursuant to INA 204(j), a new offer of employment, including qualifying self-employment, that is in the same or similar occupational classification as the original job offer.

b) AOS Portability in cases where I-140 remains unadjudicated after 180 days.  DHS clarified in its comments to the final rule that there may be instances where an individual can request job portability pursuant to section 204(j) because the individual's Form I-485 application has been pending for 180 days or more, but the Form I-140 petition has not yet been adjudicated.  The new rule allows DHS to approve an I-140 if eligibility requirements (separate and apart from ability to pay) were met at the time of fling and until the foreign national's application for adjustment of status has been pending for 1780 days.

c) New I-485 Supplement J. The rule creates a new supplementary form (Supplement J) to the application for adjustment of status (Form I-485). The stated purpose of the new supplement is to ensure uniformity in the collection of information and submission of initial evidence. The new supplement will be used to confirm that the job offer described in Form I-140 petition is still available at the time an individual files an application for adjustment of status, or a qualifying job offer otherwise continues to be available to the individual before final processing of his or her application for adjustment of status.  Supplement J will also be used by applicants to request AOS Portability under INA 204(j).

d) Same or similar occupational classification. The final regulation codified current DHS interpretation of "same or similar" occupational classification.  Under the final rule, the term "same" occupational classification is interpreted to mean an occupation that resembles in every relevant respect the occupation for which the underlying employment-based immigrant visa petition was approved. The term "similar" occupational classification means an occupation that shares essential qualities or has a marked resemblance or likeness with the occupation for which the underlying employment-based visa petition was approved.

2. H-1B Portability under INA 214(n).  The final rule codifies DHS policy and practice regarding requests to port H-1B status under INA section 214(n), as follows:

a) Must be in valid H-1B status or have H-1B extension pending.  The rule clarifies that an H-1B worker must be maintaining valid H-1B status or is in a period of authorized stay based on a timely filed H-1B extension petition.  H-1B portability does not apply to a nonimmigrant who is in a valid status other than H-1B.

b) H-1B Employment authorization remains until adjudication. DHS clarified in comments to the final rule that the so-called "240-day rule" at 8 CFR 274a.12(b)(20), which applies to timely filed H-1B extensions with the same employer, is not relevant in H-1B portability situations.

c) "Bridge petitions" are allowed. The final rule allows H-1B employers to file successive H-1B portability petitions on behalf of an H-1B worker. An H-1B worker who has changed employment based on H-1B portability may again change employers based on the filing of a new H-1B portability petition even if the former H-1B portability petition remains pending. However, if the former H-1B portability petition is ultimately denied and the individual's I-94 card expired before the subsequent H-1B portability petition was filed, the request for an extension of stay in any successive H-1B portability petition(s) will be denied.

d) International travel. The rule clarifies that the beneficiary of an unadjudicated H-1B portability petition may travel internationally if they meet certain requirements.

3. AC21 H-1B Extensions. The new regulations clarify that an H-1B worker qualifies for the one-year extension under section 106(a) of AC21 if 365 days have passed since the filing of the permanent labor certification or Form I-140 petition even if the permanent labor certification or Form I-140 petition was not filed 365 days or more prior to the end of the 6-year limitation.  The rule also clarifies that the foreign worker applying for an AC21 extension need not be in H-1B status to be eligible as long as they previously held H-1B status. The new rule also requires that the beneficiary of an approved I-140 petition seeking a 3-year AC21 extension must have applied for adjustment of status or an immigrant visa within one year of an immigrant visa becoming available.

4. H-1B Cap-Exempt Organizations. The final rule codifies DHS policy interpretations on determining which employers are exempt from the numerical H-1B cap. The rule clarifies that a nonprofit entity only needs to meet one of the criteria in 8 CFR 214.2(h)(8)(ii)(F)(2) and 8 CFR 214.2(h)(19)(iii)(B) to show that it is "related to or affiliated with" an institution of higher education.

5. H-1B Licensure Requirement.  The rule expands the evidence USCIS will examine in cases where a state allows an individual without licensure to fully practice the occupation under the supervision of licensed senior or supervisory personnel.

6. H-1B Whistleblower Protections. The proposed rule grants additional protections to H-1B and other workers from retaliation by an employer for cooperating in an investigation of the employer's violations of its Labor Condition Application attestations.

7. Recapture of time outside of the United States. The final rule clarifies current agency practice that, for purposes of determining the maximum validity period of H-1B status, an H-1B petitioner may "recapture" on behalf of the H-1B nonimmigrant worker any time the worker spent physically outside the United States for a period that exceeds 24 hours.  The final rule clarified that there is no time limitation on recapturing the remainder of the initial 6-year period of H-1B admission under INA 214(g)(4), the also clarified that any time granted pursuant to an AC21 extension cannot be recaptured.

Improving Foreign Worker Stability and Job Flexibility:

1. Revocation of Approved I-140 Immigrant Petition. The final rule provides that an approved I-140 immigrant petition is not automatically revoked solely by the petitioning employer's withdrawal of the petition or termination of the employer's business if it has been at least 180 days since: (1) the I-140 has been approved; or (2) an associated I-485 application was filed.  These approved I-140 petitions will continue to be valid for the following purposes: (1) priority date retention; (2) AOS portability; (3) post six-year H-1B extensions; and (4) eligibility for an EAD card if "compelling circumstances" can be shown under new 8 C.F.R. 245.25(a)(2).  The automatic revocation would still apply to circumstances where the U.S. Citizenship and Immigration Services (USCIS) revokes the I-140 approval because of fraud, willful misrepresentation of a material fact, invalidation/revocation of a labor certification, or material error.

2. Clarification of priority date for I-140 Immigrant Petitions not supported by a Labor Certification.  The rule clarifies that the priority date of a Form I-140 petition that does not require a labor certification is the date such petition is properly filed with USCIS.

3. 60-day grace period after termination of employment. Under the final rule, workers in E-1, E-2, E-3, H-1B, H-1B, L-1, O-1 or TN status are granted a 60-day grace period where employment ends due to voluntary or involuntary termination or layoff. Foreign workers are not authorized to work during the grace period. A separate 60-day grace period applies to each authorized validity period.

4. Extending the discretionary 10-day grace period. The final rule applies the 10-day discretionary grace period granted to H-1B workers to individuals holding E-1, E-2, E-3, L-1, or TN status. No work authorization is allowed during the grace period.

5. New one-year Employment Authorization Document (EAD card) for those with I-140 approvals but backlogged priority dates and a showing of "compelling circumstances." The final rule creates a new one-year EAD for individuals in E-3, H-1B, H-1B1, L-1 or O-1 status (including any applicable grace period) with an approved I-140 but no available visa number if compelling circumstances can be shown. Adjudicators will make a determination of whether compelling circumstances exist on a case-by-case basis with the understanding that workers should not be penalized by situations beyond their control.  The final rule provided a non-exhaustive list of examples that what would be considered compelling: 1. serious sickness or disabilities; 2. employer retaliation; and 3. major disruption to an employer or other substantial harm to the applicant.  The one-year EAD card can be renewed only if the individual can show that he or she continues to be the principal beneficiary of an approved EB-1, EB-2 or EB-3 immigrant visa petition and either: (1) the worker continues to face compelling circumstances; or (2) the worker has a priority date that is less than one year from the current cut-off date for the relevant employment-based category and country of nationality in the most recent Visa Bulletin.  Dependents are also eligible for an EAD card.

Certain applications for employment authorization documents (EAD cards):

1. Elimination of 90-day EAD card processing time requirement. The final rule eliminates the requirement that an EAD application must be adjudicated within 90 days.

2. Automatic 180-day extension of certain expired EAD work authorization. The final rule provides for a new 180-day automatic extension of an expired EAD card if the extension was timely filed. This includes individuals with pending adjustment of status applications, but excludes nonimmigrants seeking renewals of EADs based on H-4 and L-2 status as those categories are dependent on the prior adjudication of underlying benefit requests for the principal worker.

3. Earlier filing for EAD renewals. DHS comments to the final rule state that DHS will be adopt a filing policy that permits the filing of a renewal EAD application as early as 180 days in advance of the expiration of the applicant's current EAD.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Robert Neale
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.