United States: Retention Of EB-1, EB-2, And EB-3 Immigrant Workers And Program Improvements Affecting High-Skilled Nonimmigrant Workers

On November 18, 2016, the USCIS issued its Final Rule amending certain regulations related to employment-based immigrant and nonimmigrant visa programs. In issuing this Final Rule, USCIS' stated goal is to benefit both U.S. employers and foreign workers participating in these programs by "streamlining the processes for employer sponsorship of nonimmigrant workers for lawful permanent resident (LPR) status, increasing job portability and otherwise providing stability and flexibility for such workers, and providing additional transparency and consistency in the application of DHS policies and practices related to these programs." The changes contained in the Final Rule are intended to benefit both U.S. employers and foreign national workers and go into effect on January 17, 2017.

This advisory will provide an overview of the provisions of the Final Rule and how they impact foreign nationals and their employers. Please note that the Final Rule addresses complicated immigration regulations; therefore, this Practice Alert is not intended to be an introduction to U.S. immigration law but is instead directed to foreign nationals, their employers, or their counsel who are already involved in the U.S. immigration process. Additionally, as every case is unique, this practice alert is for informational purposes only; it is not legal advice and should not be construed nor relied upon as such.

FOREIGN NATIONALS WHO HAVE AN I-140 IMMIGRANT PETITION APPROVED:

RETENTION OF PRIORITY DATES. If an approved I-140 immigrant petition is withdrawn, or if the petitioning business entity shuts down, even before 180 days have passed:

  1. The Final Rule clarifies that a foreign national who is the beneficiary of an approved I-140 petition will generally be able to retain the priority date established by that I-140 approval as long as the approval of the initial I-140 petition was not revoked for fraud or willful misrepresentation of a material fact, or for the invalidation of the underlying labor certification, or for material error. Conversely, priority dates for approved I-140 will not be retained if the petition is revoked because of fraud, willful misrepresentation of a material fact, invalidation or revocation of a labor certification, or material error.
  2. If withdrawn or if the petitioning business closes before 180 days have passed since the approval, these approvals will not continue to be valid for "permanent portability" under 204(j), H-1B extensions under AC21 104(c) and 106(a) and (b), but eligibility for employment authorization in compelling circumstances will be considered.
  3. Additionally, approved I-140 petition subject to withdrawal or business termination cannot on its own serve as a bona fide employment offer--beneficiaries of these petitions must have either new Form I-140 petitions filed on their behalf, or, if eligible for job portability under section 204(j) of the INA, new offers of employment in the same or a similar occupational classification.

APPROVED I-140 PETITIONS WILL REMAIN VALID: Form I-140 petitions that have been approved for 180 days or more would no longer be subject to automatic revocation based solely on withdrawal by the petitioner or the termination of the petitioner's business. I-140s approved for 180 days or more will not be automatically revoked if withdrawn or where the business terminates 180 days after an associated adjustment application is filed and will remain valid for priority date retention (as explained above), "permanent portability" under 204(j), H-1B extensions under AC21 104(c) and 106(a) and (b), and eligibility for employment authorization in compelling circumstances (see section below).

EMPLOYMENT AUTHORIZATION FOR BENEFICIARIES OF APPROVED I-140 PETITIONS IN COMPELLING CIRCUMSTANCES: The Final Rule provides for employment authorization for beneficiaries and potentially their family members in compelling circumstances such as (1) Serious illness or disability faced by the nonimmigrant worker or his or her dependent; (2) employer retaliation against the nonimmigrant worker; (3) other substantial harm to the applicant; and (4) significant disruption to the employer (such as L-1B victim of corporate restructuring). Applies to principal beneficiaries and their dependent spouses and children and provides relief for those who are relatively close to visa availability. Must be:

  1. In E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status or grace period on the date the EAD application is filed;
  2. Be the principal beneficiary of an approved I-140;
  3. Establish that an immigrant visa is not available due to backlogs;
  4. Demonstrate compelling circumstances for a period of up to 1 year.
  5. Extensions available if compelling circumstances and visa unavailability continue or if the difference between the priority date and the current date is 1 year or less.
  6. Those with felony convictions or of two or more misdemeanors are ineligible.

Impact of compelling circumstances employment. While individuals eligible for compelling circumstances EADs must have lawful nonimmigrant status at the time they apply, such individuals will generally lose that status once they engage in employment pursuant to such an EAD (for example, if an L-1A worker loses her job because of a company reorganization and utilizes compelling circumstances employment authorization, due to her employment outside of the scope of the L-1) and will no longer be maintaining his or her nonimmigrant status. However, that worker will generally not accrue unlawful presence during the validity period of the EAD or during the pendency of a timely filed and non-frivolous application (see also the discussion on the grace periods below). This means that if an individual who was employed under a compelling circumstances EAD leaves the United States to apply for a nonimmigrant or immigrant visa at a consular post abroad, the departure would not trigger the unlawful presence grounds of inadmissibility (the three- and ten-year bars to admissibility), as long as he or she is not otherwise subject to those grounds due to other periods of unlawful presence. Additionally, the Final Rule explicitly states that because he or she is no longer in lawful nonimmigrant status, he or she will not be able to change or adjust status at that time, but may leave and re-enter in valid nonimmigrant status and then adjust; the Final Rule is unfortunately silent on whether such an individual could still qualify for relief under 245(k) if the individual's priority date becomes current within 180 days or less since the end of his or her lawful nonimmigrant status.

FOREIGN NATIONALS WHO HAVE FILED AN I-140 IMMIGRANT PETITION AND I-485 APPLICATION FOR ADJUSTMENT OF STATUS THAT REMAINS PENDING FOR MORE THAN 180 DAYS:

"PERMANENT PORTABILITY" UNDER INA 204(J): I-140 petitions approved for 180 days or more will not be automatically revoked if the petitioner withdraws the approval or where the business terminates 180 days or more after an associated adjustment application is filed and will remain valid for priority date retention (as explained above), "permanent portability" under 204(j), H-1B extensions under AC21 104(c) and 106(a) and (b), and eligibility for employment authorization in compelling circumstances . Generally, a valid job offer is required at the time of filing the I-485 application and at the time of adjudication. The Final Rule confirms that a qualifying immigrant petition has to be approved before the request for portability under INA 204(j) can be adjudicated.

PORTING WHILE I-140 REMAINS PENDING: In the Final Rule, DHS reaffirms that a qualifying immigrant visa petition must be approved before adjudicating a portability request under INA 204(j) and determining an individual's eligibility or continued eligibility to adjust status on the basis of the underlying visa petition. The Final Rule also states how USCIS will assess the specific Form I-140 petition eligibility requirements, including the petitioner's ability to pay, when a porting request has been made on a Form I-140 petition that remains pending:

  1. As indicated above, USCIS will only adjudicate a qualifying Form I-140 petition in accordance with the standards described in final 8 CFR 245.25(a)(2)(ii) when USCIS has been notified that the beneficiary intends to port to a new job pursuant to INA 204(j). The Final Rule specifically notes that an immigrant petition is not made valid "merely through the act of filing the petition with USCIS or through the passage of 180 days"; instead, the Final Rule confirms that the qualifying immigrant visa petition " must have been filed for an alien who is 'entitled' to the requested classification and that petition must have been "approved" by a USCIS officer pursuant to his or her authority under the Act."
  2. Ability to pay: in adjudicating an I-140 petition pursuant to a porting request, the USCIS will review the facts in existence at the time of filing: any initial evidence and responses to requests for evidence (RFEs), notices of intent to deny (NOIDs), or any other requests for more information that may have been issued, to determine whether the petitioner met the ability to pay requirementas of the date of the filing of the petition to determine whether the original petitioner had the ability to pay. USCIS should not be evaluating whether the original petitioner has the continuing ability to pay after filing the petition and until the beneficiary obtains lawful permanent residence.
  3. For INA 204(j) portability purposes, a qualifying Form I-140 petition will be approved if eligibility requirements (separate and apart from the ability to pay requirement) have been met at the time of filing and until the foreign national's application for adjustment of status has been pending for 180 days.

DETERMINING SAME OR SIMILAR OCCUPATIONAL CLASSIFICATION: Regarding the determination of whether the new job to which the applicant has ported falls under the same or similar occupational classification, the Final Rule removes specific reference to the SOC codes (although SOC codes remain one factor to be considered, along with a description of the job duties for the new position; the necessary skills, experience, education, training, licenses or certifications required for the new job; the wages offered for the new job; and any other material and credible evidence submitted by the applicant). The DHS will determine if the jobs are "identical" or "resembling in every relevant aspect" or if they "share essential qualities or have a 'marked resemblance or likeness'" and explicitly refers to the March 16, 2016, USCIS policy memorandum, "Determining Whether a New Job is in 'the Same or a Similar Occupational Classification' for Purposes of Section 204(j) Job Portability."

  1. NEW FORM: The Final Rule imposes the use of a new form, Supplement J to Form I-485, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j) ("Supplement J")—to standardize the collection of relevant threshold portability information when requesting portability. The offer of employment 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. The Final Rule provides that any supporting material and credible documentary evidence may be submitted along with Supplement J, according to the form instructions. The draft version of Supplement J can be found at https://www.regulations.gov/document?D=USCIS-2009-0020-0086.
  2. PRE-PORTING DETERMINATION: The Final Rule suggests that an individual who seeks to port in the future may affirmatively file Supplement J to seek a determination as to whether a new job offer is in the same or a similar occupational classification, allowing the applicant to more readily decide whether to change jobs prior to final adjudication of the pending Form I-485 application while also providing the new employer with some measure of certainty that the foreign worker will be able to join them. Supplement J can be used in the case of moving to another position with the same employer.

GRACE PERIODS FOR INDIVIDUALS IN EMPLOYMENT-BASED NONIMMIGRANT STATUS:

  1. The Final Rule provides that DHS (through the CBP) may provide a 10 day period for E-1/E-2/E-3/L-1/TN initial grace period of up to 10 days prior to the start of an authorized validity period, which provides nonimmigrants in the above classifications a reasonable amount of time to enter the United States and prepare to begin employment in the country. The rule also allows a second grace period of up to 10 days after the end of an authorized validity period, which provides a reasonable amount of time for such nonimmigrants to depart the United States or take other actions to extend, change, or otherwise maintain lawful status. Such grace period currently is discretionary per the CBP officer, but DHS is revising the Form I-797 approval notices to "facilitate consistent application of the discretionary 10-day grace period" and revising the regulations to clarify that these grace periods may be authorized as a matter of discretion on change of status or extension petitions. This grace period is similar to those already available to H-1B, O, and P nonimmigrants and is considered a period of authorized stay.
  2. The Final Rule provides a 60 day grace period during each authorized validity period for individuals in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN. This grace period allows workers in these classifications, including those whose employment ceases prior to the end of the petition validity period, to remain in the United States without violating their status and pursue new employment with employers willing to file new petitions for other employer-sponsored nonimmigrant classifications or employment in the same classification with a new employer. This grace period will also allow U.S. employers to more easily facilitate changes in employment for existing or newly recruited nonimmigrant workers. Note that this grace period does not confer employment authorization by itself (the petition must still be filed) and can last up to 60 days, or until the end of the valid status, whichever is shorter. This period is available once per approved validity period.

H-1B PORTABILITY

The Final Rule states that for H-1B portability, the H-1B nonimmigrant worker must have been lawfully admitted into the United States, must not have worked without authorization after such lawful admission, and must be in a period of stay authorized by the Secretary. Additionally, the foreign worker must be either in H-1B status or in a period of authorized stay based on a timely filed H-1B extension petition when the new H-1B petition is filed in order to be eligible for H-1B portability. The Final Rule also codifies that an H-1B port retains employment authorization until the transfer petition is adjudicated, but for an extension with the same employer, the continuing employment authorization is good only for 240 days .

OCCUPATIONAL LICENSING:

The Final Rule generally allows for the temporary approval of an H-1B petition for an otherwise eligible unlicensed worker, if the petitioner can demonstrate that the worker is unable for certain technical reasons to obtain the required license before obtaining H-1B status. The Final Rule also clarifies the types of evidence that would need to be submitted to support approval of an H-1B petition on behalf of an unlicensed worker who will work in a state that allows the individual to be employed in the relevant occupation under the supervision of licensed senior or supervisory personnel.

PROVISIONS RELATED TO CAP-EXEMPT EMPLOYERS SUCH AS NONPROFIT ENTITIES:

  1. DHS currently allows nonprofit entities related to or affiliated with an institution of higher education to qualify for the cap and fee exemptions if such nonprofit entities are (1) connected or associated with an institution of higher education through shared ownership or control by the same board or federation; (2) operated by an institution of higher education; or (3) attached to an institution of higher education as a member, branch, cooperative, or subsidiary. This Final Rule adds another provision (4) allowing nonprofit entities to qualify for the cap and fee exemptions on the basis of having a written affiliation agreement with an institution of higher education if the agreement established an active working relationship between the nonprofit entity and the institution of higher education for the purposes of research or education and so long as one of the nonprofit entity's fundamental activities is to directly contribute to the research or education mission of the institution of higher education.
  2. The Final Rule also explicitly states that the phrase "governmental research organization" now includes state and local government research entities in addition to federal government research entities.
  3. The Final Rule states that the 2011 Policy Memo, which provided deference to prior decisions regarding non-profit affiliation to an institution of higher education, is now superseded. With this provision, it appears that school districts and other nonprofits that could rely on the deference afforded by the 2011 memo can no longer do so. Therefore, the ability of foreign nationals currently working as H-1B employees for such entities may be in jeopardy. The school district must now be able to separately establish that it satisfies one of the four criteria mentioned above.
  4. Concurrent cap-exempt and cap-subject employment—eligibility for cap-subject employment concurrently with cap-exempt employment is explicitly confirmed, but cap-subject employment eligibility ends when the cap-exempt employment ends.

PROVISIONS RELATED TO H-1B EXTENSIONS BEYOND THE INITIAL 6 YEARS OF ELIGIBILITY :

  1. Recapture of H-1B time: there is no time limitation on recapturing the remainder of the initial six-year period of H-1B admission (although remainders pursuant to AC21 extension are not recapturable). The amendment makes clear that such time may be recaptured in a subsequent H-1B petition on behalf of the foreign worker, "at any time before the alien uses the full period of authorized H-1B admission described in section 214(g)(4) of the Act." Thus, questions regarding the six-year "lookback" period are now moot. Also, time spent in the U.S. in status other than H or L (and not just time spent outside of the U.S.) is recapturable.
  2. To be eligible for the one-year extension provided by AC21 Section 106, the labor certification application or (in cases not requiring labor certification) the I-140 immigrant petition only needs to be filed at least 365 days before the requested exemption would take effect, and not necessarily prior to the end of the 6-year limitation. Of course, if the requisite filing does not occur at least 365 days before the end of the initial six years, the beneficiary would need to change status or depart the U.S. until 365 days had elapsed.
  3. The beneficiary is not required to hold H-1B status at the time in order to qualify for the one-year extension provided by Section 106 of AC21. He or she can be in the U.S. in another status or abroad.
  4. The Final Rule imposes an additional requirement for eligibility for an extension under Section 106 of AC21. To remain eligible, the beneficiary must file an application for adjustment of status within one year of the priority date becoming current. Note: the 1-year clock is re-set if the priority dates retrogress and allows favorable discretion if failure to file is due to circumstances beyond the control. The Final Rule is silent on whether pursuing consular processing would satisfy this requirement.
  5. The I-140 approval will remain valid for the purpose of H-1B extensions under AC21 if 180 days or more have passed before the approved petition is withdrawn. For this reason, an H-1B beneficiary, as well as his or her potential employer, should use caution when leaving an employer upon approval of an I-140 petition if they are relying on that approved immigrant petition to extend H-1B status.
  6. When determining whether an H-1B nonimmigrant worker is eligible for an extension of H-1B status under Section 104(c) of AC21, USCIS officers will continue to review the Visa Bulletin that was in effect at the time of filing of the Form I-129 petition. Therefore, the beneficiary will remain eligible for the Section 104(c) extension even if a visa becomes available after the H-1B petition was filed.

WHISTLEBLOWER PROTECTIONS:

If an H-1B beneficiary is terminated or is otherwise unable to maintain valid status due to retaliatory action for reporting violations of the employer's LCA obligations, then the beneficiary can argue that such loss of or failure to maintain H-1B status by the beneficiary related to such violation as an "extraordinary circumstance" under 8 CFR 214.1(c)(4) and 248.1(b) and can thus seek favorable discretion to change status or to extend H-1B stay.

HAITIAN REFUGEES:

  1. The Final Rule requires DHS to issue an EAD, rather than an interim EAD, within the timeframes currently provided in 8 CFR 245.15(n)(2), which is 180 days after the adjustment application is filed or until USCIS verifies that the applicant meets the criteria and no indication of clear ineligibility (whichever is sooner). If USCIS fails to adjudicate the application for employment authorization upon expiration of the 180-day waiting period, or within 90 days of the filing of the application for employment authorization, whichever comes later, the alien shall be eligible for the non-interim EAD.
  2. Additionally, HRIFA-based applicants for adjustment of status are eligible for the automatic 180-day extension of expiring EADs (described in detail below), provided they file a timely request for renewal.

EAD APPLICATIONS:

  1. The Final Rule provides for automatic extension of expiring EADs and employment authorization for up to 180 days provided that: (1) the renewal application is filed based on the same employment authorization category as the previously issued EAD (or the renewal application is for an individual approved for Temporary Protected Status (TPS) whose EAD was issued under 8 CFR 274a.12(c)(19)); (2) the renewal application is timely filed prior to the expiration of the EAD (or in accordance with applicable Federal Register notice regarding procedures for renewing TPS-related employment documentation) and remains pending; and (3) the applicant's eligibility for employment authorization continues beyond the expiration of the EAD and an independent adjudication of the underlying eligibility is not a prerequisite to the extension of employment authorization. This includes applicants for adjustment of status as well as refugees, asylees, and those in Temporary Protected Status, among others. An expired EAD will thus be considered unexpired for Form I-9 purposes if it is used in combination with a Notice of Action (Form I-797C, or successor form) indicating the timely filing of the application to renew the EAD (provided the Form I-797C lists the same employment authorization category as that listed on the expiring or expired EAD, except in the case of TPS beneficiaries, and has been automatically extended under this rule).
  2. J-2, L-2, F-1 OPT, and H-4 applicants are not included under the automatic extension provisions.
  3. The Final Rule abolishes the 90-day processing time requirement but expands the filing window for renewal applications to up to 180 days before expiration, which coincides with the filing period for L-2 and H-4 extensions. Applicants who are not eligible for automatic extension should still notify the USCIS National Customer Service Center (NCSC) if a renewal application remains pending for 75 days or more. Applicants who are covered by the automatic extension should contact NCSC if the renewal application is still pending at 165 days or more.
  4. The Final Rule also mentions that USCIS will seek to advise the state driver services agencies or departments of motor vehicles (DMVs) of employment authorization extension based on a pending I-765 application for renewal of employment authorization, such that an I-797C for the pending extension combined with the expired EAD is acceptable for employment authorization and should likewise be acceptable for drivers license renewals.
  5. The Final Rule does not change the list of I-9 acceptable documents; however, the I-9 guidance will be updated to include information regarding the automatic extension of EADs.
  6. The need for reverification of employment authorization is not triggered until the expiration of the additional period of validity granted through the automatic extension provisions.

The Final Rule goes into effect on January 17, 2017, and employers and foreign nationals who may be affected by these provisions are encouraged to thoroughly review these rules and if necessary consult with an immigration attorney to determine how these provisions may affect them. At a minimum, this Final Rule serves as another reminder that U.S. immigration law is constantly changing and affected individuals and employers should maintain a close eye to ensure compliance with the constantly changing rules and regulations and to determine eligibility for any new benefits or programs.

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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