New Year Brings New Rules for High-Skilled Workers

Colleen F. Molner
[email protected]

On November 18, 2016, the U.S. Department of Homeland Security (DHS) published a final rule with the purpose of improving the ability of U.S. employers to hire and retain high-skilled foreign workers, while increasing and facilitating the ability of those workers to pursue other employment options and opportunities. The regulations, which are entitled Retention of EB1, EB2, and EB3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, will go into effect on January 17, 2017, three (3) days prior to President-elect Donald Trump's inauguration.

The final rule and commentaries total a combined 366 pages in length, and include provisions aimed at improving several aspects and processes of certain employment-based nonimmigrant and immigrant visa programs. Key provisions of the final regulation are summarized below:

60-Day and 10-Day Grace Periods

The final regulation grants a grace period for foreign nationals in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classification for up to 60 consecutive days following the loss of employment. To be eligible for this grace period, the nonimmigrant must have a valid petition and I-94 record. While the foreign national is not authorized to work during the 60-day grace period, this grace period can be beneficial to eligible foreign nationals who need additional time in the U.S. following the loss of employment to apply for a change of employer, change of status, or wrap up their affairs before departure. This provision potentially benefits employers, as well as impacted employees, as it streamlines the hiring and sponsorship process for individuals who have held valid visa status but are recently unemployed.

Moreover, the final regulation authorizes a 10-day grace period before and after petition validity period for foreign nationals in the E-1, E-2, E-3, L-1, and TN classifications. This grace period is already available to the H-1B, O, and P classifications, and the final regulation expands it to other classifications.

Key H-1B Provisions

Extensions Beyond the Six-Year Maximum The final regulation further clarifies and confirms an H-1B worker's eligibility for extensions of H-1B status beyond the standard six-year maximum under Sections 104(c) and 106(a) of the American Competitiveness in the 21st Century Act ("AC21"). The beneficiary is eligible for a one-year extension of H-1B status if the employer demonstrates that the beneficiary has previously held H-1B status and that the beneficiary's labor certification or I-140 petition has been or will be pending for at least 365 days as of the requested date of H-1B employment. However, such one-year extensions cannot be sought if the beneficiary does not file for adjustment of status or for an immigrant visa within one year of the visa becoming available, notwithstanding circumstances beyond the foreign national's control. The rule further confirms that three-year extensions continue to be available to H-1B workers who are beneficiaries of an approved I-140 petition and are subject to per-country visa limitations.

Occupational Licenses For those occupations that require a license, the final regulation also allows H-1B classification to be granted if the foreign national is unable to obtain a license due to technical requirements, such as the lack of a Social Security Number or employment authorization; or if the foreign national can fully perform the job duties under the supervision of a licensed supervisor. This will benefit H-1B employers and employees, such as Physical Therapists, who are currently limited to only one year of H-1B employment in certain states (including North Carolina) that will not issue an occupational license without a Social Security Number.

I-140 Validity After Withdrawal or Business Termination

The final regulation prevents the U.S. Citizenship & Immigration Services (USCIS) from revoking an I-140 petition based solely on a petitioner's withdrawal of the I-140 petition or termination of the business, as long as at least 180 days have passed following the approval of the I-140 petition or the filing of an associated Adjustment of Status (AOS) application. The continued validity of such I-140 petitions is particularly beneficial for beneficiaries seeking H-1B extensions beyond the six-year maximum and portability under AOS as well as granting some measure of certainty to their employers.

While the final rule confirms that a Form I-140 petition's priority date is the date that such petition is properly filed with USCIS if it did not require a labor certification, it also now prohibits retention of a priority date if the petition is revoked because of fraud, willful misrepresentation of a material fact, the invalidation or revocation of a labor certification, or material error.

I-140 Employment Authorization Documents (EADs)

The final regulation allows E-3, H-1B, H-1B1, L-1, and O-1 beneficiaries to apply for employment authorization for a limited period if: (1) they are the principal beneficiaries of an approved Form I-140 petition; (2) an immigrant visa is not authorized for issuance for their priority date; and (3) they can demonstrate compelling circumstances exist that justify issuance of an EAD in the discretion of DHS. This employment authorization may only be renewed in limited circumstances and in one year increments.

While the term "compelling circumstances" is not defined within the rule, it is suggested that the circumstances must be out of the ordinary, such as serious illness and disabilities, employer dispute or retaliation, or substantial harm and significant disruptions to the employer. Thus, the fact that the beneficiary will become merely unemployed or that the process may be taking a long time, will not constitute as compelling circumstances. The compelling circumstances will be adjudicated in the officer's discretion and based on the totality of the circumstances.

AOS Job Portability

As confirmed by the final regulation, beneficiaries who are applying to adjust their status must have a valid offer of employment at the time the Form I-485 is filed and adjudicated. Beneficiaries are also permitted to "port" from one employer to another if their Form I-485 application has been pending for more than 180 days, as long as the new position is in the same or similar occupational classification as the original job offer per the approved I-140 petition. The final regulation implements Supplement J of Form I-485 to facilitate such requests for portability under AOS applications. The Supplement J will require applicants to submit confirmation of a bona fide job offer, which may either be the original job offer or a new offer of employment that is in the same or similar occupational classification as the original job. The purpose of Supplement J is to facilitate USCIS's adjudications of portability requests and to standardize the type of information and documentation that USCIS will consider and use in to determine whether the original job offer still exists.

EAD Adjudications, Extensions, and Renewals

The final regulation abolishes the requirement that I-765 applications for employment authorization be processed and adjudicated by USCIS within 90 days. The regulation does grant automatic extensions of an expiring EAD for up to 180 days for certain individuals who are applying for an EAD renewal in the same category. According to the final regulation, the new filing policy will be published on the USCIS website and will clarify which specific renewal EAD employment categories are permitted to file under the new policy.

The 180-day automatic extension of employment authorization is welcomed by both employers and foreign nationals. However, the elimination of the regulatory adjudication period of 90 days is troubling, in particular for first-time applicants or those who are changing status.

Overall, the new regulations serve as an encouraging first step towards the DHS' stated goals of providing greater stability and job flexibility, streamlined processes, and increased transparency and consistency in the DHS's application of policies.

To schedule a consultation or learn more about your immigration options, please contact our office at 704-442-8000 to speak with an attorney.

Return to prior page.