United States: Department Of Homeland Security (DHS) Publishes Final Rule Improving Certain Employment-Based Immigrant And Nonimmigrant Visa Programs

Seyfarth Synopsis: Employers and foreign nationals should take note of critical changes to DHS' regulations impacting employment-based immigration for highly skilled workers.

On January 17, 2017, the Department of Homeland Security (DHS) will amend its regulations to improve certain employment-based immigrant and nonimmigrant visa programs. The amended regulations, announced through publication of the agency's final rule, are designed to improve processes and increase certainty for U.S. employers seeking to sponsor and retain immigrant and nonimmigrant workers, create greater stability and job flexibility for those workers, and increase transparency and consistency in the application of DHS policy related to affected visa classifications.

The following significant changes and clarifications are described in more detail below:

  1. In most cases, I-140 immigrant visa petitions that have been approved for 180 days or more will remain valid for supporting three-year H-1B extensions even after employer revocation.
  2. Workers holding E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN status will be eligible for up to a 60-day grace period during which they may remain lawfully in the U.S. and seek new employment.
  3. Certain applicants, particularly those with pending adjustment of status applications, seeking to renew their EAD cards, will be eligible for an automatic 180-day extension of their work authorization beyond the card's expiration date while their renewal application is pending.
  4. Under limited circumstances, USCIS may approve EAD applications for certain nonimmigrants who have reached specific milestones in the green card process and can "demonstrate compelling circumstances."
  5. Longstanding H-1B portability policies have been codified and clarified.
  6. Various provisions of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) are codified and clarified, specifically those relating to H-1B recapture and H-1B extensions beyond the six-year limitation.
  7. H-1B petitions for jobs requiring licensure must be filed with evidence of a license or evidence that the H-1B worker may fully perform the duties of the position under a licensed supervisor.
  8. Standards for nonprofit entities seeking H-1B cap exemption are clarified.
  9. Employers will now be required to file a new form in order to confirm green card portability.

1. I-140 Petition Validity

Under the amended regulations, an I-140 immigrant visa petition that has been approved for 180 days or more, or an I-140 petition that was filed concurrently with an I-485 adjustment of status application that has been pending for 180 days or more, may not be automatically revoked based solely on the petitioner's withdrawal. Moreover, the beneficiary of an approved I-140 petition will be eligible to retain his/her priority date indefinitely unless U.S. Citizenship and Immigration Services (USCIS) subsequently revokes the I-140 petition based on a finding of fraud, willful misrepresentation, or material error.

Once an I-140 petition has been approved for 180 days or more, USCIS may only revoke the petition based on a finding of: fraud or willful misrepresentation of a material fact; revocation by the Department of Labor (DOL) or invalidation by USCIS of the underlying labor certification; or a finding of material error in the petition's initial approval.

Due to significant immigrant visa backlogs in certain preference categories, many employment-based immigrants rely on an approved I-140 petition to maintain their priority date while waiting (sometimes upwards of 10 - 12 years) for an immigrant visa to become available. These individuals also typically rely on an approved I-140 petition to maintain eligibility to continuously extend their H-1B nonimmigrant status while they wait. Under the previous regulations, if an immigrant sought new H-1B employment during this waiting period, their previous employer could create instability by simply withdrawing the I-140 petition, resulting in an automatic revocation of the petition and a loss of the benefits conferred by that petition.  

Under the new rule, approved I-140 petitions will remain valid for priority date retention purposes unless the petition is revoked because of fraud, willful misrepresentation of a material fact, the invalidation or revocation of a labor certification, or material error.  I-140 petitions that have been approved for 180 days or more will remain valid, for various other purposes, including job portability under INA section 204(j), H-1B AC21 extensions, and eligibility for employment authorization in compelling circumstances (more below) under final 8 CFR 204.5(p), absent a particular finding.

2. 10-day and 60-day Nonimmigrant "Grace" Periods

The H-1B program's 10-day pre- and post-employment grace periods will extend to other types of nonimmigrant workers, including E-1, E-2, E-3, L-1 and TN workers.  In addition, DHS will permit up to sixty (60) consecutive days of potential unemployment during each petition validity period for workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN classification.

The current regulations afford H-1B, O, and P nonimmigrants two ten-day grace periods immediately preceding and following their period of authorized stay. With a view toward improving fairness towards other highly-skilled workers, DHS will now extend the same privilege to workers in E-1, E-2, E-3, L-1 and TN status. While DHS affords no work authorization incident to status during these periods, the foreign national may use this time to enter the U.S. prior to employment and/or to file a change or extension of status.

Moreover, DHS will now permit up to 60 consecutive days of potential unemployment during each petition validity period for workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN classification, during which unemployment the worker will remain lawfully in the U.S.  A worker can benefit from an unlimited number of 60-day grace periods, but only one may be granted during each petition validity period. DHS may exercise its discretion to truncate an individual's sixty-day period, as it deems appropriate.

Individuals in either the 10-day or 60-day grace period may apply for an extension or change of status and benefit from H-1B portability. However, unless or until the foreign national procures new sponsorship or independent work authorization, he or she may not accept employment during this period.

3. EAD Renewals

Certain applicants, particularly those with pending adjustment of status applications, who seek to renew their Employment Authorization Document (known as an EAD card) under the same eligibility category will enjoy an automatic 180-day extension of their work authorization beyond the card's expiration date while their renewal application is pending, provided that the Form I-765 application for employment authorization is timely filed. It is important to note that this benefit will only be available to EAD renewal applicants who continue to be authorized to work incident to status beyond the expiration of the EAD or for applicants who are applying for renewal under a category that does not first require adjudication of an underlying benefit application, petition, or request.  As such, EAD renewal requests for L-2, H-4, or E spouses would not be eligible for this benefit.  Renewal applicants whose cases are not covered by the 180-day automatic extension rule may continue to file service requests with the National Customer Service Center (NCSC) if the application is pending for 75 days or more to request priority processing.

In addition, EAD renewal requests may now be filed up to 180 days prior to the current card's expiration date, instead of the current 120-day filing threshold,   However, USCIS will no longer be bound by the 90-day deadline for processing Forms I-765 which means that EAD renewal requests for L-2, H-4, and E spouses should be filed as early as possible. 

4. Compelling Circumstances Employment Authorization Documents (EADs)

Certain nonimmigrants (and their family members) who have taken significant steps towards procuring employment-based green cards but who are unable to complete the process due to ever-expanding immigrant visa backlogs, and who can demonstrate compelling circumstances, may apply for EAD cards.

Under the amended regulations, DHS will grant employment authorization to individuals who establish, on the date of filing, that (1) they hold E-3, H-1B, H-1B1, O-1, L-1 nonimmigrant status, or are within any applicable "grace" period; (2) they are the principal beneficiary of an approved immigrant visa petition (Form I-140); (3) an immigrant visa number is currently unavailable to them; and (4) compelling circumstances justifying the favorable exercise of discretion are present. While DHS has not defined "compelling circumstances" in the new regulations, in the Comments to the Final Rule, DHS noted that compelling circumstances are generally "situations outside a worker's control that warrant DHS' exercise of discretion" such as in situations of serious illnesses and disabilities, employer disputes or retaliation, other substantial harm to the applicant, and a significant disruption to the employer.  DHS indicated that the anticipated field of eligible applicants will be narrow. 

The temporary employment authorization, if granted, will be valid for one year and may be extended in one-year increments if the applicant can establish continued eligibility under the four factors above.  Alternatively, an applicant may renew his/her employment authorization without having to establish compelling circumstances if he/she can demonstrate that the difference between his/her priority date and the visa bulletin "Final Action" date for their preference category is one year or less at the time of filing.

The regulation permits qualifying family members (i.e., spouses and under-21 children) to receive work authorization for periods not to exceed that granted to the principal applicant. Note that the derivative family member need only prove his/her relationship to the principal applicant; he/she is not required to meet the four primary criteria.

5. H-1B Portability

The final rule codifies H-1B portability provisions and confirms that an H-1B worker may work for a new employer provided that the H-1B change of employer petition is filed while the worker maintains H-1B status or is in a period of authorized stay based on a timely filed H-1B extension.  In addition, the final rule permits H-1B workers who have already ported to a new employer to port again to a third employer without waiting for USCIS to approve the second petition, provided that the second petition remains pending and the worker's I-94 record remains unexpired.

In addition, the final rule rejects previous USCIS policy guidance and confirms that an H-1B worker who is employed with a cap-exempt employer and who is also the beneficiary of a cap-subject H-1B petition may not port to the cap-subject employer prior to October 1st.  The H-1B worker must wait until October 1st to commence his/her employment with the cap-subject employer.

6. Clarifications to H-1B Maximum Period of Stay

In addition to codifying a number of policies regarding the H-1B recapture of time spent outside of the U.S., such as when an H-1B employee may request to recapture time spent abroad (anytime), what qualifies as a recapturable day (a 24-hour trip), and whether seeking to recapture renders the H-1B worker subject to the H-1B cap again (it does not), the final rule provides clarification regarding the ability to extend H-1B status beyond the six-year H-1B limitation. 

Specifically, under AC21 § 104(c), which provides an H-1B worker with an additional three years of H-1B status provided that the worker is the beneficiary of an approved and unrevoked I-140 immigrant visa petition as well as a priority date that is not current, the final rule confirms that the H-1B worker does not need to be physically present in the U.S. when the H-1B petition is filed, the H-1B petition can be filed by an employer other than the I-140 petitioner, and the determination of eligibility for the three-year extension will be made at the time of filing rather than at the time of adjudication.  This latter point is particularly important in light of the monthly movement of immigration visa cut-off dates by the Department of State.

The final rule makes significant changes to AC21 § 106(a) eligibility which provides an H-1B worker with a one-year H-1B extension provided that the worker is the beneficiary of an unexpired and unrevoked permanent labor certification (PERM) that was filed at least 365 days prior to the expiration of the worker's six-year H-1B end date.  Similar to the AC21 § 104(c) changes, the rule clarifies that the H-1B worker does not need to be physically present in the U.S. when the H-1B petition is filed and the H-1B petition can be filed by an employer other than the employer that filed the PERM application.  However, the final rule makes one important clarification and imposes one significant condition on future eligibility.  The rule clarifies that a PERM application is not required to be filed 365 days before the six-year H-1B limitation is reached for the H-1B worker to be eligible for a one-year extension.  We expect USCIS to issue additional clarifying guidance regarding how this rule will work in practice.  However, the rule states that AC21 § 104(c) one-year H-1B extensions will not be granted if the H-1B worker has not filed an adjustment of status application or immigrant visa application within one year of his/her priority date becoming current.  The one year will be reset following any period in which a priority date retrogresses.

7. H-1B Licensing Requirements

The final rule confirms that H-1B petitions for jobs that normally require status licensure must be filed with evidence of either a license or evidence that the H-1B worker may fully perform the duties of the position under a licensed supervisor.  However, the rule carves out an exception to this requirement in situations where the H-1B worker is unable to obtain a license due to technical reasons such as the inability to obtain a social security number.  Under this exception, USCIS may approve the H-1B petition for up to one year and will require inclusion of the license in a subsequent extension petition.

8. Clarification of H-1B Cap Exempt Employers, Cap Exempt Employment, and Concurrent Employment

Currently, employers are eligible for H-1B cap exemption if they are a nonprofit institution of higher education, a nonprofit entity related to or affiliated to an institution of higher education, or a nonprofit research organization or a government research organization.   The final rule lowers the standard for demonstrating whether a nonprofit entity is related to or affiliated to an institution of higher education.  Specifically, the rule allows nonprofit entities seeking cap exemption to provide evidence of a written affiliation agreement that demonstrates an active working relationship and that a "fundamental activity" of the nonprofit entity is to directly contribute to the research or education mission of the institution.  

In addition, the final rule clarifies the issue of concurrent H-1B employment with both a cap-exempt employer and a cap-subject employer.  When an H-1B worker is employed with a cap-exempt employer pursuant to a cap-exempt H-1B petition, the worker may concurrently work with a cap-subject H-1B employer without having to be counted against the H-1B cap.  The rule confirms that once the H-1B cap-exempt employment ends, the H-1B worker becomes subject to the H-1B cap and is not authorized to work for the H-1B cap-subject employer until a cap number is obtained. 

9. Immigration and Nationality Act (INA) Section 204(j) Portability and the New Supplement J Form

The final rule codifies DHS policy and practice requiring an applicant for adjustment of status to present evidence of a valid offer of employment at the time the I-485 adjustment of status application is filed an adjudicated.

USCIS has developed a new form - Supplement J to I-485 - to standardize the collection of information confirming the existence of a bona fide job offer. The offer of employment may either be the original job offer or a new offer that is in the "same or a similar occupational classification" as the original job. The term "same occupational classification" means "an occupation that resembles in every relevant respect the occupation for which the underlying employment-based immigrant visa 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 immigrant visa petition was approved." On March 18, 2016, USCIS published a policy memorandum outlining the factors used to determine whether a new job is in "the same or a similar occupational classification for purposes of Section 204(j)."

Supplement J collects necessary information about the job offer and includes attestations from the foreign national and the employer regarding essential elements of the portability request. DHS may require individuals to use Supplement J to confirm existing or new job offers prior to adjudication of the application to adjust status.  DHS will allow a portability request to be made before an I-140 petition has been approved if the associated I-485 adjustment of status application has been pending for 180 days or more.  However, DHS will not adjudicate a Supplement J portability request until the underlying I-140 petition has been approved.

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
Similar Articles
Relevancy Powered by MondaqAI
Ogletree, Deakins, Nash, Smoak & Stewart
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Ogletree, Deakins, Nash, Smoak & Stewart
Related Articles
 
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions