United States: Business Immigration: Employers And Beneficiaries Familiarize Themselves With New Regulatory Changes Effective Jan. 17, 2017

The Department of Homeland Security has issued new regulations that will impact employers and foreign workers in many of the employment-based immigrant and nonimmigrant categories. DHS new rule, "Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers" is generally an improvement on the status quo as well as much of the day-to-day practice which required leveraging in a series of largely disjointed memoranda. With a new administration on the horizon that promises more stringent immigration regulations and protocols, this is welcomed news for the business immigration community.

Below we summarize the key provisions:

Grace Periods

  • Entry and Departure. Individuals entering the U.S. in E-1, E-2, E-3, H-1B, L-1, and TN classifications may be admitted for a period of 10 days before and 10 days after their petition validity. They do not, however, have work authorization during such times. 8 C.F.R. § 214.1(l)(1). Under current regulations, only H-1B visa holders have been afforded this 10 day buffer.
  • Cessation of Employment. Similarly, E-1, E-2, E-3, H-1B, L-1, and TN nonimmigrants and their family members whose employment has ended are now afforded a 60-day grace period or until the end of their authorized validity period, whichever is shorter. During this time, they may not work, however, they may apply for extensions of stay or changes of status if otherwise eligible. 8 § C.F.R. 214.1(l)(1). This grace period will allow for the easier transition of workers from one job to another.

Adjustment Portability and I-140 Revocation

USCIS has now codified regulations regarding portability following I-140 approval as contemplated by the American Competitiveness in the 21st Century Act ("AC21"), as well as fostering a regulatory climate allowing for such adjustment portability.

  • End of Automatic Revocation. USCIS will now longer revoke petitions approved for 180 days or more (or including an adjustment filing pending for 180 days or more) based only upon the withdrawal by a petitioner or the end of its business. This allows beneficiaries to retain priority dates, port jobs, and extend status under AC21. 8 C.F.R. § 205.1(a)(3)(iii).
  • Permanent Portability. Adjustment applicants may permanently port as contemplated under AC21. The regulations allow for porting to a new offer of employment or self-employment in the same or similar occupation as that in the underlying petition. Importantly, USCIS has now created a new form and process, Form I-485 Supplement J.

The new form may be used to confirm the original job offer from the petitioning employer, but

MUST be used when the applicant is porting. The underlying adjustment application must be pending for 180 days or more and the I-140 approved and not revoked, or pending for 180 days or more and subsequently approved.

8 C.F.R. § 245.25(a).

Changes to Applications for Employment Authorization Documents ("EAD")

  • End of Regulatory Form I-765 Adjudication Timeframe. USCIS is no longer required under the regulations to adjudicate Applications for Employment Authorization within 90 days of receipt.
  • Expanded EAD Extension Provisions. USCIS will now allow renewal EAD applications to be filed 180 days prior to expiration (current policy is 120). Further, the filing of a renewal application provides an automatic EAD extension of 180 days, and the receipt notice can be used for Form I-9 reverifications. 8 C.F.R. § 274a.13(d) for most EAD categories.
  • EADs for "Compelling Circumstances." USCIS will now consider one-year of employment authorization for individuals in valid E-3, H-1B, H-1B1, O-1, or L-1 status that 1) are the principal beneficiary of an approved EB-1, EB-2, or EB-3 petition; 2) face an immigrant visa backlog, and 3) can demonstrate "compelling circumstances." Family members may also apply, however, they cannot be granted unless/until the principal is granted. Restrictions on renewal apply, and an EAD will not be granted to anyone convicted of a felony or two or more misdemeanors. 8 C.F.R. § 204.5(p). It is expected that this provision will only be used in extremely rare circumstances (e.g. destruction of physical work location due to natural disaster).

H-1B Specialty Occupation Visa Provisions

  • AC21 Extensions Beyond 6-year Limit of Stay. USCIS has now codified regulations that allow extensions beyond the sixth year as contemplated in AC21. The regulations now specifically address:

One-year incremental approval of H-1B status where a labor certification application or employment-based immigrant petition is pending for 365 days or longer. The regulations further clarify that the extensions are available until a final denial or revocation decision is made, including when administrative appeals have been exhausted. Further, employers may file for such extensions within 6 months of the requested start date, and before the 365 days have elapsed if the start date is after such time. An employer need not be the same as that used to qualify for the initial extension. If an employee fails to file for adjustment of status or an immigrant visa within 1 year of availability, s/he is no longer eligible for such an extension unless the failure to file was beyond his/her control. 8 C.F.R. § 214.2(h)(13)(iii)(D).

Three-year incremental approvals of H-1B status for EB-1, EB-2, and EB-3 beneficiaries facing quota backlogs. Natives of India and China presently face multi-year quota backlogs in the EB-2 and EB-3 immigrant categories. The regulations now incorporate the AC21 three-year extension provisions regarding these circumstances. The terms and conditions are substantially similar to the one-year extensions discussed above. 8 C.F.R. § 214.2(h)(13)(iii)(E).

  • Portability. As enacted in AC21, beneficiaries of new H-1B petitions may commence new employment (i.e. changing current positions, changing employers, or accepting concurrent employment) upon the filing of a non-frivolous amendment or extension petition. Additional provisions allow for successive porting petitions to be filed so long as previous porting petitions remain pending or are approved. 8 C.F.R. § 214.2(h)(2)(i)(H).
  • Cap-Exemption. The new regulations provide key updates to the types of petitions which qualify as being exempt from the annual 65,000 / 20,000 H-1B visa "cap."

Institution of Higher Education. The definition for such exemption is congruent with those for the purposes of the ACWIA fee.
Related or Affiliated Nonprofit Entity. The regulations now define this previously ambiguous qualification for exemption for entities that meet at least one of the following:

The nonprofit entity is connected to or associated with an institution of higher education through shared ownership or control by the same board or federation;

The nonprofit entity is operated by an institution of higher education;

The nonprofit entity is attached to an institution of higher education as a member, branch, cooperative, or subsidiary; or

The nonprofit entity has entered into a formal written affiliation agreement with an institution of higher education that establishes an active working relationship between the nonprofit entity and the institution of higher education for the purposes of research or education, and a fundamental activity of the nonprofit entity is to directly contribute to the research or education mission of the institution of higher education.

Employment "At" Cap-Exempt Entity. An otherwise cap-subject employer may petition for an H-1B employee if the employee is 1) spending the majority of work time performing job duties at a cap-exempt institution and 2) those job duties directly and predominately further the essential purpose / mission of the cap-exempt entity, specifically higher education or nonprofit/governmental research.

Becoming cap-subject. Previously exempt H-1B visa holders become subject to the cap if they change employment to a cap-subject entity and they have not been counted within the 6-year period of authorized admission to cap-subject H-1B employment.

8 C.F.R. § 214.2(h)(8)ii(F).

  • Recapture. The regulations now reflect previous agency memoranda that allowed beneficiaries to "recapture" 24-blocks of time spent outside of the U.S. during the validity of an H-1B petition. 8 C.F.R. § 214.2(H)(13)(iii)(C).
  • Licensures. USCIS may now approve H-1B visas for a validity period of up to 1 year where a licensure is needed to engage in the occupation but cannot be granted because the beneficiary lacks a social security number, lawful U.S. status, or a similar other requirement. No extensions can be received without obtaining the licensure, and the petitioner must provide the identity, location, and credentials of the beneficiary's supervisor(s), ensuring compliance with any applicable state laws. 8 C.F.R. § 214.2(h)(4)(v)(C).

While most of the changes herein reflect current practices of USCIS through policy memorandum, the fact that they will soon be codified provides much needed security for foreign national employees and employer during a time of administrative transition.

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.

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