Final Rule on High-Skilled Non-Immigrant Workers

U.S. Department of Homeland Security Issues Final Rule on Immigrant Visa Petition Retention and Program Improvements Affecting High-Skilled Nonimmigrant Workers

On November 18, 2016, DHS published a long anticipated final rule, “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers.” The rule goes into effect on January 17, 2017, and codifies existing policies and practices. It is intended to benefit U.S. employers and foreign workers by streamlining processes relating to the employment-based immigrant visa process and increasing job portability and flexibility for foreign workers.

Among its provisions, the final rule clarifies and improves the following policies and practices:

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 confirms that foreign national applying for an AC21 extension need not be in H-1B status to be eligible as long as they previously held H-1B status and have additional H-1B time remaining to be used.

The regulation also consolidates guidance regarding when one may be eligible for an extension of H1B status beyond the standard 6-year max based on a pending labor certification or I-140 petition filed at least 365 days prior to the start date requested in the petition. The final rule further clarifies that one may be eligible for this benefit, even if the LC or I-140 was not filed at least 365 days before the foreign national exhausted the full 6-years of H1B time available.

 Recapture of Time Outside of the U.S. for H-1B Nonimmigrant Worker

The final rule clarifies that there is no time limit on recapturing time the H-1B nonimmigrant worker spends outside the U.S. The time may be recaptured at any time before the workers uses the full period of authorized H-1B admission.

Other H1B-Related Provisions

The new regulation includes a number of other provisions applicable to H1B classification. The regulation codifies longstanding DHS policies regarding “portability” and “bridge petitions.” In order to qualify for portability, the new H1B petition must have been filed while the worker either is in H1B status or has a timely filed H1B extension petition. Employment authorization continues until the pending H1B petition is adjudicated, as long as each petition in the “bridge” separately meets the requirements for H1B classification and extension of stay.

The new provision provides H1B workers with whistleblower protection in cases of employer retaliation based on reporting a violation of the employer’s obligations under the labor condition application (LCA). The DHS may consider a loss of status in these cases caused by the worker’s termination to be an “extraordinary circumstance,” and therefore grant an extension or change of status. 

I-140 Revocation and Priority Date Retention

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 labor certification.  The new provision 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 priority date

I-140 Remains Valid Following Withdrawal or Business Termination – 180 Day Rule

The final rule also provides that where an I-140 petition has been approved for 180 days or more, USCIS will not revoke the I-140 petition based solely on the petitioner’s withdrawal of the petition of 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, O-1, or L-1 Nonimmigrants Facing Green Card Backlogs When They Can Demonstrate “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. To be eligible, the foreign national must 1.) be in one of the above listed visa categories, 2.) the principal beneficiary of an approved I-140, 3.) establish that an immigrant visa is not available on the date the application is filed, and 4.) demonstrate “compelling circumstances” (such as serious illness or disability to the worker or dependent family member, employer retaliation, substantial harm to applicant, or significant disruption to the employer) that justify the issuance of separate work authorization.

Expanding Availability of Two 10-Day Grace Periods for Certain Nonimmigrant Workers

The new rule expanded eligibility for a 10-day grace period before and after the petition validity period to the E-1, E-2, E-3, L-1, and TN nonimmigrant visa classifications. The grace periods will permit visa holders in the above classifications to enter or remain in the U.S. in lawful nonimmigrant status during these periods.  These grace periods were already available to foreign nationals classified as H-1B, O and P.

Establishing 60-Day Grace Period for Nonimmigrant Workers Following Loss of Employment

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.   During the 60-day grace period, nonimmigrants would not be authorized to work, but could potentially apply for a chance of employer or change of status.

EAD Adjudication

The final rule eliminates the requirement that USCIS must adjudicate EAD Applications within 90 days.  However, to avoid potential gaps in employment authorization, DHS will allow individuals to file renewal requests 180 days prior to the expiration of their current EAD (rather than the previous 120 days).  The final rule also includes an automatic 180-day EAD extension for timely filed renewal applications for those in certain categories, such as asylees and those in temporary protected status (TPS). However, this provision does not extend to all classes of nonimmigrants who are eligible for EADs, including those in L-2, H-4 and E.

New Supplement J to Form I-485

The final rule introduces 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 confirm that the job offer from the I-140 petition is still available at the time of the adjustment of status filing or to adjudicate whether a worker’s portability request for a new position is in the same or similar occupational classification as their prior position(s).

If you would like to further discuss how these new rules might affect your current immigration status, call our office at 408-389-8930 to schedule a consultation today! 

USCIS Completes the H-1B Cap Random Selection Process for FY 2017

USCIS has completed the H-1B Cap random selection process for FY 2017.

USCIS received over 236,000 H-1B petitions during the filing period, which began April 1, including petitions filed for the advanced degree exemption. On April 9, USCIS used a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption. USCIS will reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing.

Click here for USCIS’s official announcement.

Wishing you a happy and successful 2016!

Happy New Year 2016

Happy New Year from the Law Office of Alison Yew!

We hope 2015 was good to all of you. It certainly has been a very busy one for us, and our law office has a lot to celebrate for this past year. We advised and served a large number of clients, helping people become U.S. citizens, obtain their long awaited green card, be granted non-immigrant visas to work or study, pursue their dreams of investing in and starting their own business venture, and unite with their families. We encountered some hard won cases that seemed impossible at the outset and posed significant hurdles, but we made it happen. Our clients’ successes in finally getting their green cards or becoming U.S. citizens after many struggles became our own personal success stories as well. We are so grateful to those of you who have allowed us to be a part of your immigration journey.

And we have grown to better serve your legal needs. This past year, we added a new attorney to our practice, and together, we look forward to helping you in the new year. If you or someone you know has a pending immigration issue, make us your first call in 2016 to set up a consultation. We know that immigration law is complex and often confusing, and it has such a significant impact on your life. Don’t let it continue to be a stressor for you in the new year. Your immigration issues matter to us, so reach out to our law office so that we can guide and help you through the process, empowering you as you become more clear of your immigration options.

We wish you great success in 2016!

Happy New Year, everyone!

Alison Yew and Tiffany Keng

Parole In Place for Military Families

On Nmilitary familyovember 15, 2013, then-USCIS director Alejandro Mayorkas, issued a USCIS Policy Memorandum entitled, “Parole of Spouses, Children and Parents of Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve and the Effect of Parole on Inadmissibility under Immigration and Nationality Act § 212(a)(6)(A)(i).”  It is a hefty title, but in short, this policy allows for the parole of qualified family members of military members, reservists, or veterans, who otherwise are in the United States undocumented (visa overstay and entry without inspection included), and qualify to adjust status to that of lawful permanent residents without having to leave the U.S.  Click to the USCIS memo here.

If the above situation sounds familiar, and you believe you may qualify (or a family member may qualify), please contact us for an evaluation.

Summary of President Obama’s Executive Action on Immigration

Tonight, President Obama announced his Executive Action on Immigration.  It includes:

  • Deferred Action for the parents of U.S. citizen and lawful permanent resident children who fit the eligibility requirements.
  • Expansion of Deferred Action for Childhood Arrivals (DACA) to remove the age cap and move the continuous presence date up to January 1, 2010. DACA will now be granted for 3 years (including those with pending renewal applications).
  • Replacement of the controversial Secure Communities program with a “Priority Enforcement Program” program the details of which are still unclear.
  • Ensuring that job-creating entrepreneurs have legal means to enter and operate in the U.S.
  • Increasing access for university affiliated businesses to key talent.
  • Allowing spouses and children of lawful permanent residents to apply for unlawful presence waivers from within the U.S. and ensuring appropriate standards for adjudicating those waivers.
  • Enabling families of individuals trying to enlist in the armed forces to utilize parole in place to ensure legal status.
  • Changing the procedures for adjustment of status to allow legal immigrants caught in the immigration quota backlogs to register their applications and thus begin the final step of the process.
  • Directing agencies to look at modernizing the visa system, with a view to making optimal use of the numbers of visa available under law.
  • Announcement of a new border security campaign and plan.

There are no details yet on implementation, process, or cost. Stay tuned.

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