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Final Rule on High Skilled Workers Takes Effect on January 17, 2017

January 10, 2017

The DHS final rule to expand job portability for EB-1, EB-2, EB-3 immigrants and certain highly skilled nonimmigrants will take effect on January 17, 2017, a few days before President-elect Trump takes office.  Mr. Trump has not stated whether he supports or opposes the rule.  The rule will remain in effect unless or until DHS or Congress replaces or repeals it. 

Below are highlights.

• Retention of Priority Dates: the Final Rule allows for the retention of the priority date for workers in the EB-1, EB-2, and EB-3 categories, regardless of the amount of time that has passed since I-140 petition approval, so long as the approval of the original petition was not revoked by the government due to material error, fraud or willful misrepresentation of a material fact, or invalidation of the labor certification. 

This means that an individual may retain her priority date even if the initial petitioning employer withdraws the I-140.  She would still need to obtain approval of a new I-140 petition (and possibly PERM) with a new employer.

• I-140 Stays Valid After 180 Days for Purposes of AC21 Extensions: If an I-140 has been approved or a related AOS has been filed for 180 days or longer, the I-140 remains valid for purposes of H-1B extensions.  The I-140 will not be automatically revoked if the original petitioner withdraws it or if the employer’s business terminates.  The I-140 can be revoked by the government on other grounds. 

• AC21 AOS Portability: the Final Rule affirms that an individual with an approved or pending I-140 and an application for adjustment of status pending beyond 180 days can change employers or move to a new job as long as the new job is in the same or similar occupational classification. A pending I-140 may be approved if the petitioner established the ability to pay the required wage at the time of filing the petition and all other eligibility criteria are met at the time of filing and until the beneficiary’s AOS has been pending 180 days. 

USCIS has developed a new Supplement J to Form I-485, to be used to confirm new job offers prior to the AOS being approved, to see if the new offer of employment is in the same or a similar occupational classification as the job offer listed in the I-140 petition. This form “may be requested” and is not required at this time.

• Ability to Apply for EAD With Approved I-140 in Compelling Circumstances: for individuals with an approved I-140, the new rule allows for employment authorization for a limited period if the USCIS determines there are compelling circumstances that justify the issuance of such employment authorization.
  • The individual must be in the U.S. in valid E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status;
  • The individual is not authorized to secure an immigrant visa based on his/her priority date; and
  • The person can demonstrate compelling circumstances.

“Compelling circumstances” is not defined and will be decided on a case by case basis, but examples provided include:

• serious illness or disability to the nonimmigrant worker or a dependent family member
• employer retaliation against the nonimmigrant worker
• other substantial harm to the applicant
• significant disruption to the employer

Nonimmigrant principal workers who take advantage of this I-140 EAD will lose their current nonimmigrant status and will likely need to leave the US to obtain a nonimmigrant visa (e.g., H-1B, L-1, etc.) from a consulate or embassy before being able to return to US to work in that status and apply for AOS.

• H-1B Portability: the Final rule confirms that H-1B nonimmigrant workers can begin concurrent or new H-1B employment upon the filing of a timely non-frivolous H-1B petition, provided the H-1B worker
  • Must have been lawfully admitted to the US;
  • Must not have worked without authorization after the lawful admission; and
  • Must be in an approved period of stay

The H-1B worker can file successive H-1B portability petitions and begin working for successive employers upon the filing of the H-1B petition, even if the earlier petition remains pending.  If a prior portability petition is denied, successive petitions will also be denied.

• H-1B Cap-Exempt Definition: theFinal Rule clarifies and improves the method for determining which H-1B nonimmigrant workers are exempt from the H-1B numerical cap due to their employment at an institution of higher education, a nonprofit entity related to or affiliated with such an institution, or a governmental or nonprofit research organization

Non-profit entities must now satisfy any one of the following conditions:

• The non-profit is connected or associated with an institution of higher education through shared ownership or control by the same board or federation;
• The non-profit is operated by an institution of higher education;
• The non-profit is attached to an institution of higher education as a member, branch, cooperative, or subsidiary; or
• The non-profit has entered into a formal written affiliation agreement with an institution of higher education that establishes an active working relationship with the institution of higher education for the purpose of research or education and “a fundamental activity” of the non-profit is to directly contribute to the research or education mission of the institution of higher education.  Previously, non-profits could receive a cap exemption so long as the entity’s “primary purpose” was to directly contribute to the research or education mission of the institution of higher education.

• Lengthy Adjudication Delays and H-1B Extensions in 1 Year Increments:  One year extensions beyond the 6 year limitation in H-1B status may be granted if at least 365 days have elapsed since the filing of the Labor Certification or I-140 petition. Subsequent approvals may be granted in 1 year increments until the LC expires or a final decision has been made to deny or revoke the LC.

Advance filing of an H-1B petition seeking an extension beyond 6 years can be made within 6 months of the requested start date.  The petition may be filed before 365 days have elapsed since the LC or I-140 was filed as long as the LC or I-140 was filed at least 365 days prior to the date the period of admission authorized under the exemption will take effect. Employers may request time remaining in 6 years, including recapture time, at the same time as requesting a 1 year AC21 extension

The lengthy adjudication delay exemption may not be invoked if the beneficiary fails to file for Adjustment of Status or an immigrant visa within 1 year of an immigrant visa becoming available unless the failure to apply was due to circumstances beyond her control.

• 10 Day Nonimmigrant GRACE PERIOD:  the Final Rule provides two grace periods of up to 10 days, to individuals in the E-1, E-2, E-3, L-1, and TN classifications (similar grace periods already exist for those in H-1B, O, and P classification)
  • The new rule allows an initial 10 day grace period PRIOR to the start of an authorized validity period to allow for individuals to enter the US and prepare to start employment with the respected employer.
  • The rule also allows a second 10 day grace period AFTER the end of an authorized validity period, to wrap up affairs in the US to depart or take other actions to extend, change or otherwise maintain lawful status, including vacationing prior to departure

• 60 Day Nonimmigrant GRACE PERIOD: The Final Rule provides a one-time grace period of up to 60 consecutive days, or until the existing validity period ends (whichever is shorter, whenever employment ends) to individuals in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classifications to remain in the U.S. and remain eligible for an extension of status (with new employer) or change of status.

• 90 Day Rule Eliminated for Adjudicating EAD Applications: the Final Rule eliminates the regulatory requirement for 90-day adjudication timeframe and issuance of interim-EAD cards. Certain workers (described below) can benefit from an “automatic” extension of EADs for up to 180 days.

• Automatic Extension of Expiring EADs:  For certain EAD renewal applicants (including those who have filed an employment-based AOS application) who timely file the renewal application (prior to expiration of current EAD), an automatic 180 day extension will be provided.
  • Automatic extensions do not apply to the Advance Parole document
  • Automatic extensions will not apply for H-4, L-2 or E nonimmigrant spouses seeking renewal of employment authorization

DHS indicates a more flexible filing policy is being implemented that can allow for renewal EAD applications to be filed as early as 180 days in advance of the current EAD.

If you have any questions about this new rule, please contact Weaver Schlenger.