United States: DHS Issues Final Rule To Further Retention Of High-Skilled Immigrants

On November 18, 2016, the U.S. Department of Homeland Security (DHS) issued the final rule, Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, to take effect on January 17, 2017. The final rule establishes additional security and flexibility for high-skilled immigrants in the United States while working to ease some of the current programmatic challenges. This Alert highlights key components of the final rule.

Grace Periods

The final rule establishes a one-time 60-day grace period (or the duration of the existing work authorization, whichever is shorter) for non-immigrant workers when their underlying employment ends. DHS has authorized this grace period for workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN status. The grace period does not allow for employment authorization; however, this provides a proscribed duration of time in which the non-immigrant may either wrap up affairs in the United States or seek other employment and employment sponsorship.

In addition, the final rule extends the 10-day grace period to E-1, E-2, E-3, L-1 and TN nonimmigrants (and their dependents), which is presently available to H-1B workers. Workers would have 10 days before the petition validity period (or other authorized validity period) and 10 days after the end of the validity period in which they may apply for and be granted an extension of stay or change of status. They may also start employment under H-1B portability provisions.

H-1B Extension Beyond the Sixth Year

The final rule confirms that a foreign worker may rely on a current I-140 approval and qualifying I-140 petition to extend his or her stay in H-1B status beyond the sixth year consistent with the regulations under the American Competitiveness Act of the 21st Century. The final rule clarifies that the foreign worker must apply for adjustment of status within one year of priority date eligibility to remain eligible for the extension of H-1B status.

Clarification of H-1B Portability

Provided that the foreign worker remains eligible for H-1B status and that each petition meets the individual requirements to qualify for H-1B status, a foreign worker may have successive change of employer petitions filed on his or her behalf.

Expansion of H-1B Cap Exemption

Under the new rule, H-1B petitions filed by a nonprofit entity affiliated with an institution of higher education will be considered cap exempt on the basis of a written affiliation agreement with an institution of higher education, provided the agreement establishes an active working relationship between the nonprofit entity and the institution for purposes of research or education and that one of the nonprofit entities may directly contribute to the education or research mission of the institution.

Eligibility for Employment Authorization in Compelling Circumstances 

Non-immigrant workers (E-3, H-1B, H-1B1, L-1 and O-1) with approved Form I-140 petitions who cannot obtain an immigrant visa due to priority date retrogression will be allowed under the final rule to apply for separate employment authorization for a limited period if there are compelling circumstances that, in the discretion of DHS, justify the issuance of employment authorization. The final rule does not define compelling circumstances, but gives such examples as a serious illness or disability, an employer dispute or retaliation, substantial harm to the applicant and family or a significant disruption to the employer.

If you have any questions about this Alert, please contact any of the attorneys in the Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

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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