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).