New Employment Based Final Rule: Summary and New Benefits

By: Vishal Chander

On November 18, 2016, USCIS issued new regulations regarding employment based immigrant and nonimmigrant workers.  The new rules make many of the policies previously set out in memoranda into official regulations.  The new regulations also offer helpful options for workers with long pending adjustments, employment transition, and portability.  The new regulations take effect January 17, 2017.

The final rule is intended to benefit U.S. employers and foreign workers participating in these programs by streamlining the processes for employer sponsorship of nonimmigrant workers for lawful permanent resident (LPR) status, increasing job portability and otherwise providing stability and flexibility for such workers, and providing additional transparency and consistency in the application of DHS policies and practices related to these programs.  Below are the significant changes made by the new regulations.

Summary

Below is a summary of the additions made by the new regulations:

I-140/I-485

• Codifies that priority dates are created on receipt in non-Labor Certification I-140 cases
• Codifies retention of priority dates and except when revocation of approval for material error, fraud or willful misrepresentation of a material fact, or revocation or invalidation of the labor certification accompanying the petition
• Creates Form I-485 Supplement J to incorporate AC21 portability provisions into regulation
• Codifies regulations so that I-140 remains valid despite employer withdrawal or termination of business after I-140 has been approved for over 180 days or 180 days after filing of the associated I-485

Employment Authorization

• EAD available to certain nonimmigrants with approved EB-1, EB-2, or EB-3 I-140s and their dependents under compelling circumstances
• Eliminates 90 day timeframe for adjudication of EADs
• Eliminates interim EADs
• Establishes automatic extension of EADs for up to 180 with filing of certain EAD renewals
• Modifies I-9 reverification requirements to allow for automatic extension of EADs

Grace Periods

• Expands 10 day grace periods before and after period of authorized stay under most high skilled nonimmigrant classifications.
• Establishes a 60 day grace period after cessation of employment once during each period of authorized validity in most high skilled nonimmigrant classifications

H-1B

• Codifies policy regarding recapture, whistleblower provisions, and 7^th year extensions
• Expands circumstances when H-1B will be issued without licensure due to lack of social security number or similar circumstances
• Expands definition of cap-exempt affiliated non-profit entity and governmental research institution

Employment Authorization for Compelling Circumstances

What is probably the most significant change for foreign nationals stuck in long immigrant visa backlogs is the availability of Employment Authorization for those holding E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status and their spouses when there is a showing of compelling circumstances.

The final rule provides that, to obtain a temporary grant of compelling circumstances employment authorization, an individual must (1) be in the United States in E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status, including in any applicable grace period, on the date the application for employment authorization is filed; (2) be the principal beneficiary of an approved Form I-140 petition; (3) establish that an immigrant visa is not authorized for issuance based on his or her priority date, preference category, and country of chargeability according to the Final Action Date in effect on the date the application is filed; and (4) demonstrate compelling circumstances that justify the exercise of USCIS discretion to issue an independent grant of employment authorization.  The final rule limits the grant of employment authorization in compelling circumstances to a period of 1 year.

Renewals may be sought in 1-year increments if: (1) He or she continues to face compelling circumstances and establishes that an immigrant visa is not authorized for issuance based on his or her priority date, preference category, and country of chargeability according to the Final Action Date in effect on the date the renewal application is filed; or (2) the difference between his or her priority date and the relevant Final Action Date is 1 year or less (without having to show compelling circumstances).

The final rule allows family members of these individuals to also apply for employment authorization, and provides that the validity period for their EADs may not extend beyond that authorized for the principal beneficiary.

Beneficiaries will be considered as being in a period of authorized stay for purposes of calculating unlawful presence

There are shortcomings to seeking this Employment Authorization.  USCIS believes that individuals holding a compelling circumstances EAD may not be eligible for adjustment of status, because they will no longer be working pursuant to nonimmigrant status.  Those individuals will be expected to apply for an immigrant visa outside of the United States.

USCIS set out the following non-exhaustive examples of compelling circumstances:

Serious Illnesses and Disabilities. The worker or spouse suffers from serious illness or disabilities requiring the worker moving to a different geographic area for treatment or otherwise substantially changing his or her employment circumstances.

Employer Dispute or Retaliation. The nonimmigrant worker can demonstrate that he or she is involved in a dispute regarding the employer's alleged illegal or dishonest conduct as evidenced by, for example, a complaint filed with a relevant government agencyor court, and that the employer has taken retaliatory action that justifies granting separate employment authorization to the worker on a discretionary basis or that the dispute otherwise is shown to have created compelling circumstances. D

Other Substantial Harm to the Applicant. The nonimmigrant worker can demonstrate that due to compelling circumstances, he or she will be unable to timely extend or otherwise maintain status, or obtain another nonimmigrant status, and absent continued employment authorization under this proposal the applicant and his or her family would suffer substantial harm. Financial hardship is one possibility, where the worker may not be able to find work in a similar industry in the home country.

Significant Disruption to the Employer. The nonimmigrant worker can show that due to compelling circumstances, he or she is unexpectedly unable to timely extend or change status, there are no other possible avenues for the immediate employment of such worker with that employer, and the worker's departure would cause the petitioning employer substantial disruption.  Examples include: 1) an L-1 worker sponsored for permanent residents status working for a company undergoing substantial corporate restructuring; or 2) an H-1B nonimmigrant worker in a critical research role for nonprofit entity which later becomes a for profit entity.

Long backlogs alone will not constitute sufficient compelling circumstances for issuance of the Employment Authorization.  Neither will a child aging out.  Lastly, a business startup alone is not sufficient compelling circumstances.  National Interest Waiver beneficiaries, including physicians serving underserved areas, may be eligible for the Employment Authorization.

60 Day Grace Period

For years, there were unofficial grace periods where H-1B holders seeking a change of employers after having been separated from a previous employer could still be approved without the need to depart the country.  With the advent of the Great Recession, the grace periods were no longer provided.  With the new regulations, USCIS has codified an official 60 day grace period allowing individuals in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classifications greater job portability.  The grace period will allow high-skilled workers whose employment ceases prior to the end of the petition validity period to pursue new employment in the same classification.  The grace period will be provided once per authorized validity period.

10-Day Nonimmigrant Grace Periods

Changes to the rules now offer an initial 10 day grace period prior to the start of authorized validity period and a second period at the end of the authorized period to individuals in E-1, E-2, E-3, L-1, and TN classifications.  This is similar to the period available to those holding H-1B status now.

180 Day EAD Renewal Filing

Under the new regulations, USCIS will accept renewal applications in the same employment category  up to 180 days before expiration.

Automatic EAD Extension

The new rules extend the employment authorization and validity of existing EADs issued to certain employment-eligible individuals for up to 180 days from the date of expiration, as long as: (1) A renewal application is filed based on the same employment authorization category as the previously issued EAD (or the renewal application is for an individual approved for Temporary Protected Status (TPS) whose EAD was issued under 8 CFR 274a.12(c)(19)); (2) the renewal application is timely filed prior to the expiration of the EAD (or, in accordance with an applicable Federal Register notice regarding procedures for renewing TPS-related employment documentation) and remains pending; and (3) the individual's eligibility for employment authorization continues beyond the expiration of the EAD and an independent adjudication of the underlying eligibility is not a prerequisite to the extension of employment authorization.

In return, USCIS is eliminating the requirement to adjudicate employment authorization within 90 days of filing and that authorize interim EADs in cases where such adjudications are not conducted within the 90-day timeframe.

I-9 Reverification

The I-9 regulations have been updated to permit the automatic extension of EADs.  A facially expired EAD is considered unexpired for Form I-9 purposes if it is used in combination with a Notice of Action (Form I-797C, or successor form) indicating the timely filing of the application to renew the EAD.  Newly hired employees completing Forms I-9 may choose to present their employers with this document combination to show both identity and employment authorization.  The need for reverification of employment authorization is not triggered until the expiration of the additional period of validity granted through the automatic extension.

H-1B Portability

The new rules permit H-1B “bridge petitions”.  An H-1B nonimmigrant worker who has changed employment based on an H-1B portability petition filed on his or her behalf may again change employment based on the filing of a new H-1B portability petition, even if the former H-1B portability petition remains pending.

H-1B Licensing

DHS is expanding the bases under which an individual may be granted H-1B nonimmigrant status despite the individual's inability to obtain a required license in the United States. The proposed rule expressly allowed for a temporary exception to the licensure requirement for individuals who were substantively qualified for licensure but who could not obtain such licensure due only to the need to have a Social Security number, employment authorization, or similar technical requirement.

Expansion of Cap-Exemption

The new regulations expand the definition of cap exempt institutions.  They allow nonprofit entities to qualify for the cap and fee exemptions on the basis of having a written affiliation agreement with an institution of higher education.  The cap exemption applies to nonprofits institutions engaged in more than one fundamental activity, any one of which may directly contribute to the research or education mission of a qualifying college or university. The term “related or affiliated nonprofit entity” is defined consistently for both cap-exemption and ACWIA fee-exemption purposes.  â€œGovernmental research organization,” has also been expanded to include state and local government research entities in addition to federal government research entities.

H-1B Whistleblower Protections

The new regulations codify the employer retaliation for reporting of H-1B violations as an “extraordinary circumstance” allowing late filing of an H-1B petition or change of status when such retaliation was the cause of any loss or failure to maintain H-1B status.

I-140 Priority Date Establishment, Retention and Revocation

The new regulations solemnize standing policy that a priority date is established when an I-140 is properly filed with USCIS.  This applies specifically to EB-1, NIW, and Schedule I and II cases.

The regulations also clarified when a priority date can be retained.  Reiterating standing statute and policy that priority date retention is not available where there is I-140 revocation due to fraud, willful misrepresentation of a material fact, invalidation or revocation of a labor certification, and error – the regulation expounds that the error must be a material error.  The regulations no longer permit revocation of I-140s due to withdrawal by the petitioner or termination of the petitioner’s business if the I-140 has been approved for 180 days or more. 

I-485 Supplement J

The regulations also set forth requirements for I-485 portability under AC21 and the development of a new form—Supplement J to Form I-485.  The form allows for standard collection of such AC21 information.  DHS may require individuals to use Supplement J to confirm existing or new job offers prior to adjudication of an application to adjust status.  Currently, there is no fee for Supplement J, but there may be one in the future.

 

Related Links

 

81 FR 82398,  Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers (Nov. 18, 2016).

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