DHS Issues New Regulations Impacting High-Skilled Nonimmigrant Workers

November 23, 2016

Following our earlier post about the proposed rule, the US Citizenship and Immigration Service (USCIS)  announced on November 18, 2016 the issuance of a final rule which it states will “modernize and improve several aspects of certain employment-based nonimmigrant and immigrant visa programs” and also “better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents.”  This rule goes into effect on Jan. 17, 2017 and the complete regulation, including the response to the numerous comments received, can be found in the Federal Register.
Among the updates and changes are the following:

• Clarifies that the priority date in an EB-1, EB-2, or EB-3 Immigrant Visa I-140 petition may be used for a subsequently filed EB-1, EB-2 or EB-3 petition, unless USCIS denies the petition (or otherwise fails to approve it) or revokes the petition’s approval due to: (1) fraud or a willful misrepresentation of a material fact; (2) a determination that the petition was approved in error; or (3) revocation or invalidation of the labor certification associated with the petition.
• Grants one year of employment authorization for an individual who: (1) is currently in the U.S. in valid E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status; (2) is the beneficiary of an approved EB-1, EB-2 or EB-3 IV petition; (3) does not have an IV immediately available; and (4) can demonstrate compelling circumstances (per the discretion of the USCIS)  that justify an independent grant of employment authorization. DHS has identified four circumstances in which it may consider granting employment authorization under the proposed change: (1) Serious Illnesses and Disabilities; (2) Employer Retaliation; (3)Other Substantial Harm to the Applicant; and (4) Significant Disruption to the Employer.
  • The EAD 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 IV 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.  And, employment authorization will be denied (for both initial and renewal filings) if at the time of filing the EAD application, the beneficiary’s priority date is more than 1 year outside of being current (for the specific employment-based preference category and country of birth).   The USCIS will also grant EADs to spouse and children where the principal beneficiary is granted an EAD under this provision.
• Changes the regulations so that EB-1, EB-2, and EB-3 Immigrant Visa I-140 petitions that have been approved for 180 days or more would no longer be automatically revoked by the USCIS based only on withdrawal by the petitioner or termination of the petitioner’s business.  If the approved I-140 petition has not been revoked for fraud, material misrepresentation, the invalidation or revocation of a labor certification, or USCIS error, the petition will generally continue to be valid for various purposes including: (1) the retention of priority dates; (2) job portability under INA §204(j); and (3) extensions of status under AC21 §§104(c) and 106(a) and (b) (one and three year extensions beyond the six year limit):
• Permits individuals in E-1, E-2, E-3, H-1B, L-1, and TN classifications and their dependents  to enter the United States up to 10 days prior to when the validity period starts and to stay up to ten days after the validity period ends, although the visa holders may only work during the actual validity period.
• Authorizes a grace period up to 60 consecutive days  or until the end of the authorized validity period, whichever is shorter, for E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN nonimmigrants whose employment has ended.  Currently, there is no such grace period.  This provision would allow such nonimmigrants more time and flexibility to seek new employment, seek a change of status to a different nonimmigrant classification, or make preparations for departure from the United States.
• Codifies USCIS policy on H-1B portability, allowing an H-1B nonimmigrant to “port” to a new employer once the new H-1B petition is filed if the H-1B nonimmigrant: 1) was lawfully admitted into the U.S. in or otherwise provided H-1B nonimmigrant status; 2) has a nonfrivolous H-1B petition for new employment (or, if with the same employer, with a request to extend or amend the H-1B nonimmigrant’s stay) filed with the USCIS prior to the expiration of the current period of stay; and 3) has not been employed without authorization in the U.S. from the time of last admission through the filing of this new petition.
• Clarifies prior H-1B cap exemption guidance, providing that an H-1B petitioner that is not itself a qualifying institution, organization or entity may claim an exemption from the cap for an H-1B nonimmigrant if: (1) the majority of the worker’s duties will be performed at a qualifying institution, organization, or entity; and (2) such job duties directly and predominately further the essential purpose, mission, objectives or functions of the qualifying institution, organization or entity (e.g., higher education, or nonprofit or governmental research).
• Broadens the definition of ““related or affiliated nonprofit entity” for H-1B cap exempt purposes to include nonprofit entities that have entered into formal written affiliation agreements with institutions of higher education and are able to (1) establish an active working relationship with the institution of higher education for the purposes of research or education; and (2) a fundamental activity of the non-profit entity is to directly contribute to the research or education mission of the institution of higher education.
• Calculates maximum  H-1B admission period to allow for “recapturing” of time spent physically outside the US exceeding 24 hours and prior to the exhaustion of the six years of H-1B status.
• Implements AC21 § 204(j) “same or similar” portability provisions wherein an approved EB1 (*except for Extraordinary Ability), EB2, or EB3 I-140 petition remains valid if:
  •  The employment offer from the petitioning employer is continuing and remains bona fide; or
  • Pursuant to section 204(j), the beneficiary has a new offer of employment in the same or a similar occupational classification as the employment offer described in the approved I-140 petition, the I-485 application to adjust status based on this petition has been pending for 180 days or more, and the approval of the I-140 petition has not been revoked within those 180 days.  A new offer of employment may be from the petitioning employer, from a different U.S. employer, or based on self-employment.
• Eliminates the 90 day regulatory provision to adjudicate Employment Authorization Documents (EADs) and instead authorizes an automatic 180 day automatic extension of EAD or employment authorization if:
  • The individual files a request to renew his or her EAD prior to the expiration date;
  • The individual is requesting renewal based on the same employment authorization category under which the expiring EAD was granted, or the individual has been approved for TPS and his or her EAD was issued pursuant to 8 CFR 274a.12(c)(19); and
  • The individual either continues to be employment authorized incident to status beyond the expiration of the EAD or is applying for renewal under a category that does not first require adjudication of an underlying application, petition, or request.  Notably, this automatic extension does not apply to spouses of nonimmigrant holders in eligible categories, (e.g. J-2, L-2, E-3D, and E-1 or E-2).
• Permits the filing of a renewal EAD application up to 180 days prior to expiration (this is a change from the current 120 day timeframe).

---