USCIS Announces Proposed Rule to Modernize Certain Employment-Based Immigrant and Nonimmigrant Visa Programs

January 7, 2016

USCIS is seeking public comments on a proposed rule, published in the Federal Register on December 31, 2015,  that would modernize and, according to the government, improve certain aspects of employment-based nonimmigrant and immigrant visa programs. On its website, USCIS  states that it is also proposing regulatory amendments to 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 (LPRs).  The public has until February 29, 2016 to comment.    Among the proposed  updates and changes are the following:

  • 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status based on this petition has been pending for 180 days or more, and the approval of the I-140 petition has not been revoked within those 180 days.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.
  • 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).  Notably, the definition of ““related or affiliated nonprofit entity” for H-1B cap exempt purposes is broadened 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) establish that one of their primary purposes is to directly contribute to the research or education mission of the institution of higher
    education.
  • 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):
  • 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.
  • Provides a ten day grace period (similar to that which is currently extended to H-1B nonimmigrants) to individuals in E-1, E-2, E-3, L-1, and TN classifications and their dependents whose status has expired.
  • Authorizes a grace period up to 60 days for E-1, E-2, E-3, H-1B, H-1B1, L-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.
  • 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 (beyond the individual’s control) 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.
  • 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.

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