Overview of Final Regulation for High Skilled Workers

The U.S. Department of Homeland Security (DHS) published a final rule on November 18, 2016, entitled Retention of EB1, EB2, and EB3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers. This new regulation was first proposed in late 2015, as outlined in the MurthyDotCom NewsBrief Priority Date Retention & I-140 Revocation Protections: Proposed Regulation (27.Jan.2016). The stated purpose of the regulation is to improve the ability of U.S. employers to hire and retain high-skilled foreign workers, and to increase the ability of those workers to pursue new employment opportunities. This final rule is scheduled to go into effect on January 17, 2017, which is 60 days after its publication.

I-140 Revocation and Priority Date Retention

The final regulation allows the beneficiary of an approved I-140 petition to retain its priority date unless the petition is revoked due to fraud, willful misrepresentation, material error by the U.S. Citizenship and Immigration Services (USCIS), or the invalidation or revocation of the underlying labor certification.

The original version of the rule had allowed for loss of a priority date based on a USCIS “error,” rather than limiting this to a “material error.” A material error involves the misapplication of statutory or regulatory requirements to the facts on hand. This is a small, yet significant improvement from the proposed version. But, it still leaves some level of insecurity in I-140 beneficiaries that an earlier priority date may be lost because the USCIS second-guesses itself potentially years after an I-140 was initially approved.

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

The final rule also provides that, once 180 days have passed following the approval of an I-140 petition, the USCIS will not revoke the I-140 petition solely based on the petitioner’s withdrawal of the petition or termination of the business. The same holds true in cases where 180 days or more have passed after an associated application for adjustment of status (form I-485) has been filed.

The continued validity of an I-140 in these circumstances is especially important for those in H1B status. An approved I-140 petition generally makes the beneficiary eligible for extensions of H1B status beyond the standard 6-year maximum, as long as the priority date is not current. The I-140 can also be used by one’s H-4 spouse for purposes of applying for an employment authorization document (EAD). Further, the I-140 can be used, as discussed below, for possible eligibility for an I-140 EAD.

I-140 Approval Cannot be Used for Filing I-485

It is important to understand that, although the I-140 may remain valid, typically it still cannot be used for purposes of filing an I-485 through any employer other than the petitioner. While the DHS received requests from numerous commenters on the proposed rule to allow for the I-140 to be used by a different employer, the DHS notes that this would not be possible under the Immigration and Nationality Act (INA). To allow for an I-140 petition to be ported to a new employer in these circumstances, it is likely that a Congressional change in the law would be required.

I-140 EAD Rule for “Compelling Circumstances”

The I-140 EAD portion of the final rule is substantially similar to the proposed version of the rule, which was detailed in the MurthyDotCom NewsBrief I-140 EAD Proposal is Limited and Restrictive (08.Jan.2016). In order to qualify for a one-year EAD, the foreign national must (1) be in E-3, H1B, H1B1, O-1, or L-1 status, (2) be 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” that justify an independent grant of employment authorization. Family members of foreign nationals who qualify under these provisions may also apply for an EAD.

“Compelling Circumstances” for EAD Issuance Not Defined

The new regulations do not define “compelling circumstances,” which will be adjudicated on a case-by-case basis considering the totality of the circumstances. The DHS did provide an updated illustrative list of some circumstances that could be considered compelling, including serious illness or disability to the worker or a dependent family member, employer retaliation, substantial harm to the applicant, and significant disruption to the employer. It declined, however, to further expand on or clarify the definition of “compelling circumstances.”

Eligibility for this benefit under the final rule remains highly restrictive. Indeed, the DHS calls this provision a “stopgap measure” intended to address only “particularly difficult” situations in which a foreign national on the path to lawful permanent residence would otherwise have to abruptly stop working and leave the United States. Because the foreign national will need to relinquish nonimmigrant status to work under this EAD rule, however, there is a disincentive to its use.

The DHS did clarify in the final rule that foreign nationals working in the United States pursuant to an EAD approved under these provisions will be considered in a period of authorized stay, and therefore generally will not accrue unlawful presence.

EAD Adjudication and Automatic Extension for up to 180 Days

In the final rule, the DHS eliminates the requirement that the USCIS adjudicate I-765 EAD applications within 90 days. The DHS maintains that the agency still intends to adjudicate applications within the 90-day timeframe, but the USCIS will no longer be required to do so by regulation.

In order to help prevent gaps in employment authorization, the DHS will allow most EAD applicants to apply for extensions up to 180 days prior to the EAD expiration date. In addition, EAD applicants in certain categories, such as asylees and those in temporary protected status (TPS), will be granted “automatic extension of expiring EADs … for up to 180 days with respect to individuals who are seeking renewal of their EADs … based on the same employment authorization categories under which they were granted.” Unfortunately, this provision does not extend to all classes of foreign nationals who are eligible for EADs, including L-2 spouses and qualifying H-4 spouses.

Job Portability and New Supplement J to Form I-485

The new rules formalize longstanding DHS practice requiring a foreign worker who is adjusting status to have a valid offer of employment at the time the I-485 is both filed and adjudicated. In order to facilitate adjudication of these applications, the DHS is introducing supplement J, a new supplement to I-485 applications that will be used to submit confirmation of a bona fide job offer or request for job portability. The form is intended to standardize the information and evidence that the USCIS will use to either confirm that the job offer described in the I-140 still exists, or, if an applicant has an I-485 that has been pending for at least 180 days, to adjudicate a worker’s portability request for a new position in the same or similar occupational classification. More detail on this job portability standard is available in the MurthyDotCom NewsBrief, Final Policy on AC21 ‘Same or Similar’ Job Requirement (07.Apr.2016).

60-Day Grace Period for Nonimmigrant Worker Following Loss of Employment

The new regulation gives the DHS the ability to grant a grace period for foreign nationals in E-1, E-2, E-3, H1B, H1B1, L-1, O-1, or TN classification for “… up to 60 consecutive days, or until the existing validity period ends, whichever is shorter, whenever employment ends for these individuals.” To qualify, the nonimmigrant must have a valid petition and I-94 card. During the 60-day period, the foreign national would not be authorized to work, but could potentially apply for a change of employer or change of status. This 60-day grace period will only be available to a qualifying foreign national once per authorized validity period of an approved petition.

10-Day Grace Period Added for Certain Nonimmigrant Workers

The DHS is also expanding eligibility for a 10-day grace period before and after the petition validity period to the E-1, E-2, E-2, L-1, and TN classifications. These grace periods were already available to foreign nationals classified as H1B, O, and P.

Maximum H1B Admission Period and Exemptions

The new rule clarifies and codifies DHS policy regarding the recapture of time and exemptions to the general six-year limit for H1B classification. Remaining H1B time for periods spent outside United States or in nonimmigrant status other than H1B or L-1 is recapturable at any time prior to the worker using the full six years.

The regulation 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 (LC) 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.

Other H1B-Related Provisions

The new regulation includes a number of other provisions applicable to H1B classification. First, 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.

Second, 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.

Third, for employment in occupations that typically require a license, H1B classification may be granted if (1) evidence demonstrates that the foreign national may fully perform the job duties under the supervision of a licensed supervisor, or (2) the failure to obtain a license is due to inability to meet technical requirements, such as the lack of a Social Security number or employment authorization.

Fourth, the DHS clarifies in the final rule that a nonprofit entity that is engaged in a “fundamental activity” that directly contributes to the research or education mission of a qualifying college or university may qualify for cap and ACWIA fee exemptions. Furthermore, the “governmental research organizations” that qualify for these exemptions now expressly include state and local government research entities, as well as federal entities.

Implementation of the Final Rule

As noted above, the new regulation is scheduled to go into effect on January 17, 2017, just three days before the inauguration of President-elect Donald Trump. While the Trump administration would not be able to simply cancel the regulations without going through the formal rule-making process, Congress may be able to block implementation under the Congressional Review Act. The Murthy Law Firm will monitor any executive or legislative efforts related to these and other immigration regulations and will share the information as appropriate.

Conclusion

The final rule certainly does not provide all of the improvements sought by many stakeholders, including the Murthy Law Firm. It does virtually nothing to address the extensive backlogs in the oversubscribed green card categories. The elimination of the 90-day EAD adjudication requirement is unsettling, and the I-140 EAD rule seems unlikely to benefit many foreign national workers. The addition of a 60-day grace period, on the other hand, is a welcome change. Similarly, the provisions related to priority date retention and the continued validity of a withdrawn I-140 in certain circumstances are definitely improvements to the existing regulatory framework.

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