D&S Immigration Update: DHS Releases Final Rule Regarding Retention of Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers

What’s Happening?

The U.S. Department of Homeland Security (DHS) released published final rule today, November 18, 2016, which aims to improve the ability of U.S. employers to hire and retain high-skilled workers who are beneficiaries of approved I-140 employment-based immigrant visa petitions and are waiting to become lawful permanent residents, while increasing the ability of those workers to seek promotions, accept lateral positions with current employers, change employers, or pursue other employment options.

What’s New?

Clarifying Rules for Obtaining Post 6th-Year H-1B Extension

The final rule provides much needed clarity regarding the circumstances under which individuals are eligible for post-6th year H-1B extensions. The final rule confirm that:

  • Post 6th-year extensions are available to foreign nationals who are not currently in H-1B status so long as they previously held H-1B status and have additional H-1B time remaining to be used.
  • H-1B nonimmigrants lose their eligibility for additional one-year extensions if:
    • They do not file for adjustment of status or an immigrant visa within 1 year of their priority date becoming current
    • At the time of filing the extension the labor certification is no longer valid, the I-140 petition has been denied/revoked, or their adjustment of status or immigrant visa application has been approved or denied.

Expanded circumstances under which beneficiaries of approved I-140 petitions can retain their priority dates

Beneficiaries of approved I-140 petitions who change employers are permitted to retain their earlier priority date.  However, prior to the enactment of this final rule, there was some uncertainty as to whether this priority date retention applied in cases where the beneficiary’s prior employer withdrew or the government revoked the prior I-140 petition.  

The final rule provides more certainty to I-140 beneficiaries and their prospective employers by clarifying that beneficiaries may retain the priority date from their initial I-140 petition as long as that petition was not withdrawn/revoked for fraud, willful misrepresentation of a material fact, or material error, or because of the invalidation or revocation of the underlying PERM/labor certification.  This new provision, thus provides more certainty to beneficiaries of approved I-140 petitions that they will be able to change employers, move positions within their company, and pursue different employment opportunities without losing their place in line for a green card.

Limiting the grounds for automatic revocation of I-140 petition approvals

The final rule also provides that where an I-140 petition has been approved for 180 days or more, the petition will no longer be subject to automatic revocation based solely on the withdrawal by the petitioner or the termination of the petitioner’s business.  Note this provision will not be applied retroactively and the 180 day rule will apply only prospectively from January 17th onward, the date the new rule becomes effective.

Eligibility for 1-year of employment authorization for E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrants facing green card backlogs when they can demonstrate certain “compelling circumstances”

The final rule permits for individuals facing immigrant visa backlogs in the above listed nonimmigrant visa categories to apply for separate employment authorization for a limited period of up to one year, which will be granted in the discretion of the Department of Homeland Security where the individual can demonstrate “compelling circumstances” (e.g., medical emergency or significant disruption to the employer) justifying the issuance separate work authorization.

It is important to note that individuals who obtain a compelling circumstances EAD will no longer be considered to be maintaining nonimmigrant status and thus, will be ineligible to file for adjustment of status and must process their green card through a consulate outside the United States.  The compelling circumstances EAD recipients will be considered in a period of authorized stay but this will not provide recipients with travel authorization and, thus, these individuals should consult with an immigration attorney if the need for international travel arises.

Expanding availability of two grace periods of up to 10 days to individuals in the E-1, E-2, E-3, L-1, and TN classifications

In an effort to provide visa beneficiaries with a reasonable amount of time to enter the U.S. to begin employment and to depart the U.S. or take action to extend, change, or otherwise maintain lawful status following the termination of employment, the final rule expands the availability of two (2) grace periods of up to ten (10) days each to the E-1, E-2, E-3, L-1, and TN nonimmigrant visa classifications. The grace periods will be available during the ten (10) days prior to start of authorized visa validity period and ten (10) days following end of authorized visa validity period and will permit visa holders in the above classifications to enter or remain in the U.S. in lawful nonimmigrant status during these periods.  

Establishing a grace period of up to 60 consecutive days 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 classifications

The final rule also provides for a 60-day (consecutive) grace period at the end of a nonimmigrant’s lawful stay in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN status, even if their employment ends prior to the end of the petition or visa validity period. This grace period will provide nonimmigrants in these visa classifications a reasonable amount of time to find and accept new employment within the U.S. where their prior employment is terminated or to make plans to depart the U.S.  Foreign nationals are permitted to remain in the U.S.  but are not employment authorized during the grace period (with the exception of H-1B beneficiaries changes employers pursuant to H-1B portability). This grace period, like others, is a “use or lose” benefit meaning that if the beneficiary departs the U.S. during the 60 day grace period, they are not able to reenter to use the remaining time available.   

Removing the requirement that USCIS must adjudicate Applications for Employment Authorization Documents (EADs) within 90 days

The final rule removes the requirement that USCIS must adjudicate EAD Applications within 90 days.  However, to avoid potential gaps in employment authorization the final rule now permits individuals to file renewal requests 180 days prior to the expiration of their current card (rather than the previous 120 days) to mitigate the impact of the potentially longer processing times for these applications.  The final rule also includes an automatic 180-day EAD extension for timely filed renewal applications, but H-4, L-2 and E visa EAD renewals are excluded from this automatic extension.

Including a new supplement to the Form I-485 Adjustment of Status Application that allows USCIS to better determine an individual’s portability under AC-21

The final rule creates a “Form I-485 Supplement J” which applicants will use to demonstrate certain threshold evidence regarding their eligibility to change employers when their Adjustment of Status Application has been filed and pending for more than 180 days. The supplement is intended to standardize the collection of the necessary information USCIS requires to (1) confirm that the job offer from the I-140 petition is still available at the time of the adjustment of status filing and (2) determine whether a new offer is in a same or similar occupational classification as their prior position(s).

Things to Keep in Mind

The final rule is an important milestone for the Obama Administration in helping U.S. businesses remain competitive by recruiting and retaining high-skilled foreign talent. The rule will take effect just days before President Obama leaves office and it is not yet clear whether the Trump administration will seek to make changes to or withdraw the regulation.  However, any such actions would be required to go through the regulatory process, which would take several months to accomplish.