The new year brings with it changes in immigration law, including implementation of the Department of Homeland Security’s (DHS) final rule entitled Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers (“the new rule”). In practice, the new rule codifies several long‑standing DHS policies and practices, and creates several new rules mostly aimed at improving employees’ employment mobility and improving an employer’s ability to hire and retain employees in the green card process.
The new rule goes into effect on January 17, 2017, just three days before inauguration day, seen by many as a welcome bit of clarity in the face of president‑elect Trump’s still‑to‑be established immigration policies. Unlike the executive actions Trump has threatened to revoke on his first day in office, the new rule, created through the lengthy rulemaking process, will take significant time and effort to rescind.
The following are several of the key components of the new rule:
60-Day Post-Termination Grace Periods for Most Nonimmigrants
A new 60-day grace period will provide many terminated foreign workers an additional 60 days in the U.S. Prior to the rule, most terminated foreign workers were deemed “out of status” upon termination and had to either rely on government discretion to allow them to change employers or change to a visitor status in order to avoid falling out of status. Now, foreign workers in E-1, E-2, E-2, H-1B, H-1B1, L-1, O-1 or TN classifications, and their dependents, will remain in status for 60 days following termination or until the end of their authorized validity period, whichever is shorter. The 60 days does not include employment authorization, but it does allow the foreign worker to wrap up their affairs in the U.S. or attempt to transfer and maintain status with a new employer.
10-Day Pre- and Post-Validity Grace Period
Foreign workers in E-1, E-2, E-3, H-1B, L-1 or TN classifications, and their dependents may now enter the U.S. up to 10 days prior to the start of their validity period and leave the U.S. up to 10 days after the validity period ends. No employment is authorized during these periods, but the government will allow for flexibility of scheduling travel and keep many foreign workers from needing to enter as a visitor prior to their employment’s start date, or needing to change to a visitor status in order to close out their affairs in the U.S. prior to departure.
Post-Sixth Year H-1B Extensions
H-1B visa classification allows for a total of six years of validity (usually in two three‑year increments). The final rule codifies a long‑standing practice as authorized by a 2001 law, the American Competitiveness Act of the 21st Century (AC21), by allowing a foreign national to use a Labor Certification (PERM) filing at least one year prior to the end of the H-1B sixth year or an approved I-140, Immigrant Petition, to extend their stay in H-1B status beyond the sixth year. The final rule also requires that the foreign national apply for adjustment of status within one year of their priority date becoming “current” (or immigrant visa becoming available) in order to remain eligible for post sixth year H-1B extensions based on an approved I-140.
H-1B Recapture of Time Outside the United States
Once an H-1B foreign worker begins his or her H-1B validity period, the time spent outside the United States on international trips longer than 24 hours can be “recaptured” and added onto the six years of H-1B validity. So if an H-1B worker began H-1B status on January 1, 2010, but spent six months outside the U.S. during the next six years, their H-1B status could be extended from the normal end of January 1, 2016 until six months later: July 1, 2016.
Time is recaptured through a new H-1B petition that includes evidence of travel, such as passport stamps, DHS entry and exit records, plane itineraries, and the like.
H-1B portability Start Date and Successive H-1B Portability Petitions
A foreign worker lawfully in H-1B status is authorized to “port” to a new H-1B employer through the new employer’s filing of a non-frivolous H-1B petition. The new rule codifies the longstanding practice that the foreign worker may begin employment at the new employer as soon as the new H-1B port petition is filed or as of the requested start date on the petition, whichever is later. In practice, many foreign workers in H-1B status prefer to wait for approval of the port petition prior to leaving the initial H-1B company since denial of the port petition after starting with the new employer would effectively leave the H-1B foreign worker without a job.
An H-1B foreign worker with a pending H-1B “port” petition filed by a new employer, may file a successive “port” petition from a third employer even while the first “port” petition is still pending. The foreign worker must at all times remain eligible for H-1B status, and each petition meets the individual requirements to qualify for H-1B status, but in theory, the long adjudication times for an H-1B petition allow a foreign worker to potentially have successive change of employer petitions filed on his or her behalf. In practice, an employer should consult closely with an immigration attorney if they are filing on behalf of an employee with an already pending port application.
Increased Protections for I-140 Priority Date Retention
Foreign Nationals with an approved I-140 Immigrant Petition may retain their priority date even when the I-140 employer withdraws the I-140, as long as withdrawal occurs at least 180 days after approval. Prior to 180 days, the withdrawal stands. Similarly, if an I-140 employer’s business is terminated at least 180 days after an I-140 is approved, the I-140 remains valid for priority date purposes, whereas termination of the business prior to 180 days acts to rescind the I-140.
These protections do not apply if DHS finds that the approval was based on fraud, material misrepresentation, invalidation or revocation of the underlying labor certification, or material error.
Job Portability for Certain Green Card Applicants
Changing jobs or employers after obtaining an approved I-140, but before receiving your green card, usually requires the foreign worker to obtain a new I-140 based on the new job or employer, although in many cases they can retain their priority date from the original approved I-140. The new rule clarifies relevant portions of the AC21 which permit green card applicants who change jobs or employers to continue to use their old approved I-140 petition as long as their application for adjustment of status (I-485) has been pending for at least 180 days and the new job is in the same or similar occupational classification as the job on the approved I-140. The foreign worker must submit Form I-485 Supplement J along with supporting evidence to prove that the new job meets the portability requirements.
Automatic Employment Authorization Document Extensions
Applicants who file for timely renewal of their Employment Authorization Documents (EADs) will be granted an automatic extension of up to 180 days while the renewal application is pending provided it was filed before the initial EAD expired and for the same classification. To date, most applicants who filed for EAD extensions were forced to wait until the physical card arrived several months later, which often caused a gap in employment authorization. The provision also eliminated the government’s requirement to adjudicate EAD applications within 90 days. Employers will need to be aware of this new provision when revalidating an employee’s Form I-9. One caveat, this new provision will not apply to EAD renewals for eligible spouses of E-1, E-2, E-3, H-1 or L-1 workers since their work authorization requires initial approval of the underlying status.
“Compelling Circumstances” Employment Authorization
Foreign workers in E-3, H-1B, H-1B1, L-1 and O-1 status with and approved I-140, but who are still waiting for their priority date to become current, may now apply for one‑year increments of employment authorization. To qualify, they must show that they have an approved I-140 in EB-1, 2 or 3 categories, that the I-140 is not current, and that “compelling circumstances” favor employment authorization. Although no definition is provided for compelling circumstances, examples are provided, such as employer dispute or retaliation, serious illness or disability, a significant disruption to the employer, or substantial harm to the applicant. In certain circumstances spouses and children of the foreign national may also apply for one-year employment authorizations that match the foreign worker’s grant.
Cap Exempt H-1B Employers
The government allots 85,000 H-1B visas per year (65,000 standard H-1B visas and 20,000 H-1B visas for graduates of U.S. Master’s degree programs or higher). By law, certain employers are exempt from the quota and may apply for an H-1B visa on behalf of an employee at any time, even when the normal 85,000 visas are used up. The new rule clarifies several definitions used to qualify certain “cap-exempt” employers. These include new definitions for nonprofit entities that are “related to or affiliated with” institutions of higher education and/or governmental research organizations, as well as employment of H-1B workers at such entities by employers that would otherwise not be considered “cap-exempt.” The rule clarifies and replaces prior USCIS memoranda and contradictory guidance.
In some cases, H-1B foreign workers at a cap-exempt employer would simultaneously take another H-1B role at a cap-subject employer. The new rule establishes that the cap-subject petition cannot have a validity period that exceed the cap-exempt petition, and that termination of the cap exempt position will automatically subject the employee to the cap. In this case, if the employee was not previously subject to the cap and there are no H-1B visas are available under the cap, USCIS may revoke the cap-subject petition.
Stay tuned to this space for more updates and developments as the new administration grapples with these new regulations and starts to implement its own.