Immigration Articles

New Rules Affecting Certain Employment Based Immigrant and Nonimmigrant Visa Programs – Part 2

 

Summary and Nonimmigrant Visa Rules

These regulations have been long awaited and codify certain sections of the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) AND the American Competitiveness in the Twenty-first Century Act of 2000 (AC21). This final rule clarifies and improves certain policies and practices in this area—policies and practices that have long been specified through a series of policy memoranda and precedent decisions of the U.S. Citizenship and Immigration Services (USCIS) Administrative Appeals Office. Firstly, the Rule summarizes the final regulations as follows:

  • H-1B extensions of stay under AC21. The final rule addresses the ability of H-1B nonimmigrant workers who are being sponsored for LPR status (and their dependents in H-4 nonimmigrant status) to extend their nonimmigrant stay beyond the otherwise applicable 6-year limit pursuant to AC21.
  • INA 204(j) portability. The final rule addresses the ability of certain workers who have pending applications for adjustment of status to change employers or jobs without endangering the approved Form I-140 petitions filed on their behalf.
  • H-1B portability. The final rule addresses the ability of H-1B nonimmigrant workers to change jobs or employers, including: (1) Beginning employment with new H-1B employers upon the filing of non-frivolous petitions for new H-1B employment (“H-1B portability petition”); and (2) allowing H-1B employers to file successive H-1B portability petitions (often referred to as “bridge petitions”) and clarifying how these petitions affect lawful status and work authorization.
  • Counting against the H-1B annual cap. The final rule clarifies the way in which H-1B nonimmigrant workers are counted against the annual H-1B numerical cap, including: (1) The method for calculating when these workers may access so-called remainder time (i.e., time when they were physically outside the United States), thus allowing them to use their full period of H-1B admission; and (2) the method for determining which H-1B nonimmigrant workers are “cap-exempt” as a result of previously being counted against the cap.
  • H-1B cap exemptions. The final rule clarifies and improves the method for determining which H-1B nonimmigrant workers are exempt from the H-1B numerical cap due to their employment at an institution of higher education, a nonprofit entity related to or affiliated with such an institution, or a governmental or nonprofit research organization, including a revision to the definition of the term “related or affiliated nonprofit entity.”
  • Protections for H-1B whistleblowers. The final rule addresses the ability of H-1B nonimmigrant workers who are disclosing information in aid of, or otherwise participating in, investigations regarding alleged violations of Labor Condition Application (LCA) obligations in the H-1B program to provide documentary evidence to USCIS to demonstrate that their resulting failure to maintain H-1B status was due to “extraordinary circumstances.”
  • Form I-140 petition validity. The final rule clarifies the circumstances under which an approved Immigrant Petition for Alien Worker (Form I-140 petition) remains valid, even after the petitioner withdraws the petition or the petitioner’s business terminates, including for purposes of status extension applications filed on behalf of the beneficiary, job portability of H-1B nonimmigrants, and job portability under section 204(j) of the Immigration and Nationality Act (INA).

Second, this rule builds on the provisions listed above by making changes consistent with the goals of AC21 and ACWIA to further provide stability and flexibility in certain immigrant and nonimmigrant visa categories. The Regulations specifically state:

  • Establishment of priority dates. To enhance clarity for the regulated community, the final rule provides that a priority date is generally established based upon the filing of certain applications or petitions. The new regulatory language is consistent with existing DHS practice in establishing priority dates for other Form I-140 petitions that do not require permanent labor certifications (labor certifications)—such as petitions filed under the employment-based first preference immigrant visa (EB-1) category.
  • Retention of priority dates. To enhance job portability for workers with approved Form I-140 petitions, the final rule explains the circumstances under which workers may retain priority dates and effectively transfer those dates to new and subsequently approved Form I-140 petitions. Priority date retention will generally be available as long as the approval of the initial Form I-140 petition was not revoked for fraud, willful misrepresentation of a material fact, the invalidation or revocation of a labor certification, or material error. This provision improves the ability of certain workers to accept promotions, change employers, or pursue other employment opportunities without fear of losing their place in line for immigrant visas.
  • Retention of employment-based immigrant visa petitions. To enhance job portability for certain workers with approved Form I-140 petitions in the EB-1, second preference (EB-2), and third preference (EB-3) categories, but who are unable to obtain LPR status due to immigrant visa backlogs, the final rule provides that Form I-140 petitions that have been approved for 180 days or more would no longer be subject to automatic revocation based solely on withdrawal by the petitioner or the termination of the petitioner’s business.
  • Eligibility for employment authorization in compelling circumstances. To enhance stability and job flexibility for certain high-skilled nonimmigrant workers in the United States with approved Form I-140 petitions who cannot obtain an immigrant visa due to statutory limits on the number of immigrant visas that may be issued, the final rule allows certain beneficiaries in the United States in E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status to apply for separate employment authorization for a limited period if there are compelling circumstances that, in the discretion of DHS, justify the issuance of employment authorization.
  • 10-day nonimmigrant grace periods. To promote stability and flexibility for certain high-skilled nonimmigrant workers, the final rule provides two grace periods of up to 10 days, consistent with those already available to individuals in some nonimmigrant classifications, to individuals in the E-1, E-2, E-3, L-1, and TN classifications. The rule allows an initial grace period of up to 10 days prior to the start of an authorized validity period, which provides nonimmigrants in the above classifications a reasonable amount of time to enter the United States and prepare to begin employment in the country. The rule also allows a second grace period of up to 10 days after the end of an authorized validity period, which provides a reasonable amount of time for such nonimmigrants to depart the United States or take other actions to extend, change, or otherwise maintain lawful status.
  • 60-day nonimmigrant grace periods. To further enhance job portability, the final rule establishes a grace period of up to 60 consecutive days during each authorized validity period for individuals in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classifications. This grace period allows high-skilled workers in these classifications, including those whose employment ceases prior to the end of the petition validity period, to more readily pursue new employment should they be eligible for other employer-sponsored nonimmigrant classifications or employment in the same classification with a new employer. The grace period also allows U.S. employers to more easily facilitate changes in employment for existing or newly recruited nonimmigrant workers.
  • H-1B licensing. To provide clarity and certainty to the regulated community, the final regulations codify current DHS policy regarding exceptions to the requirement that makes the approval of an H-1B petition contingent upon the beneficiary’s licensure where licensure is required to fully perform the duties of the relevant specialty occupation. The final rule generally allows for the temporary approval of an H-1B petition for an otherwise eligible unlicensed worker, if the petitioner can demonstrate that the worker is unable for certain technical reasons to obtain the required license before obtaining H-1B status. The final rule also clarifies the types of evidence that would need to be submitted to support approval of an H-1B petition on behalf of an unlicensed worker who will work in a state that allows the individual to be employed in the relevant occupation under the supervision of licensed senior or supervisory personnel.

Finally, to provide additional stability and certainty to U.S. employers and individuals eligible for employment authorization in the United States, this final rule changes several DHS regulations governing the processing of applications for employment authorization.

  • EAD Extensions – Eliminating GAPs in Employment. To minimize the risk of any gaps in employment authorization, this final rule automatically extends the validity of Employment Authorization Documents (EADs or Forms I-766) in certain circumstances based on the timely filing of EAD renewal applications. Specifically, the rule automatically extends 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. (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.

Discussion of Important Nonimmigrant Visa Rule Changes

  1. Grace Periods (10 days and 60 days):
    • The final rule actually states that DHS “may” provide grace periods of up to 10 days before the petition validity period (or other authorized validity period) begins, and of up to 10 days after the validity period ends to individuals in certain employment-authorized nonimmigrant visa classifications that previously have not been afforded these periods, namely the E-1, E-2, E-3, L-1 and TN classifications[1]. Most importantly, the 10 days grace periods are not automatic. They are “provided through an exercise of discretion on a case by case basis to nonimmigrants seeking changes of status or extensions of stay.” However, the new rule extends this exercise of discretion to CBP officers at a port of entry. So, individuals returning from a travel abroad may seek the same benefit as those applying for change of status or extensions of stay.
    • The second grace period is not new, but codifies existing USCIS policy. In fact, this is somewhat limiting because the existing policy did not have a time frame attached to it (we have on occasion applied for extensions for individuals who had lost their job and had been without paystubs for up to 90 days) and the USCIS was encouraged to use a “common sense” approach to adjudicating these petitions.The published notes that accompany the new rule states, the 60-day grace period would provide needed flexibility to qualifying nonimmigrants facing termination of employment prior to the end of their petition validity periods. The grace period, for example, allows such nonimmigrants to remain in the United States without violating their status and potentially obtain new job offers from employers that seek to file new nonimmigrant petitions, and requests for an extension of stay, on their behalf. In such cases, even though prior employment may have terminated several weeks prior to the filing of the new petition, DHS may consider such an individual to have not violated his or her nonimmigrant status and allow that individual to extend his or her stay with a new petitioner, if otherwise eligible. If the new petition is granted, the individual may be eligible for an additional grace period of up to 60 days in connection with the new authorized validity period. It is important to note that the two grace periods CANNOT BE COMBINED! In other words, eligible nonimmigrant workers cannot add a 10-day grace period to the end of any 60-day grace period.The final rule does clarify though that in a limited instance it may be possible for a nonimmigrant worker to use both grace periods. For instance, when a nonimmigrant worker, upon his or her last admission, was provided with a grace period of up to 10 days at the expiration of the validity period, and then experiences a cessation of employment in the last 60 days of the validity period. In these limited cases, DHS may consider the nonimmigrant to have maintained his or her status for up to 60 days immediately preceding the expiration of the validity period, and the nonimmigrant may also use the 10-day grace period after the validity period ends.

      Frequency and Aggregation of the 60-Day Grace Period: The grace period may apply to each authorized validity period the individual receives. DHS also clarifies that the grace period can last up to 60 consecutive days or until the existing validity period ends, whichever is shorter. As modified, the final rule provides that while the nonimmigrant worker may only receive one grace period in an authorized validity period, he or she would be eligible for a new grace period of up to 60 days in connection with any subsequently authorized validity period. Any days available in such a grace period must be used consecutively, and unused days may not be used later in the same authorized validity period or carried over into a subsequent validity period. In other words, there is no aggregation or carryover of time during the grace period.

      Employment Authorization During the Grace Periods: the final rule does not allow eligible nonimmigrants to be employed during either the 10 or 60-day grace periods unless otherwise authorized; in other words, an individual in between jobs may not use the grace period to commence employment with a new employer! DHS clarifies and states that these grace periods are simply there to facilitate the ability of qualified nonimmigrants to transition to new employment in the United States, seek a change of status, or prepare to depart the United States.

  2. Change of Employer – “Job Portability” for H-1B Nonimmigrant Workers:There has always been confusion regarding “portability”. The most common issue is whether an individual previously granted H-1B status may commence employment even though he or she is currently in another status. DHS confirms that to be eligible for H-1B portability the new H-1B petition must have been filed while the foreign worker is in H-1B status or is in a period of authorized stay based on a timely filed H-1B extension petition. Employment authorization under the pending H-1B portability petition continues until adjudication (this eliminates the uncertainty regarding continuing work while dealing with lengthy processing times and adjudications).240-Day Rule and How it Applies: If an H-1B employer files a timely petition for an employee seeking continuation of the same employment with the same employer without change, DHS does not consider that to be new employment, and thus is ineligible for H-1B portability.Bridge Petitions and Portability: H-1B employers may file successive H-1B portability petitions (often referred to as “bridge petitions”) on behalf of H-1B nonimmigrant workers. 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.. Eligibility for employment pursuant to a second or subsequent H-1B portability petition, however, would effectively depend on (1) whether any prior H-1B portability petitions have been approved or remain pending, and (2) whether the individual’s Form I-94, issued upon admission or extended pursuant to an approved H-1B petition, has expired. If the request for an extension of stay was denied in a preceding H-1B portability petition and the individual’s Form I-94 authorizing admission in or extension of H-1B status has expired, a request for an extension of stay in any successive H-1B portability petition(s) would also be denied. Successive H-1B portability petitions thus may provide employment authorization as long as each such H-1B portability petition separately meets the requirements for H-1B classification and for an extension of stay.

    As long as the petitioner can demonstrate that the beneficiary remained in valid H-1B nonimmigrant status when a successive portability petition was filed, the timely filed petition and associated extension of stay request would not be denied simply because of a denial or withdrawal of the preceding portability petition. DHS does not consider an H-1B portability petition that is filed before the validity period expires to constitute a “bridge petition”; rather, a bridge petition is one filed after expiration of the Form I-94, but during the time in which the individual was in a period of authorized stay based on a preceding timely filed extension petition.

  3. H-1B Licensing Requirements: In an occupation that typically requires a license and where the Beneficiary does not have a license, Petitioners will be required to submit evidence of compliance with applicable state requirements demonstrating that the unlicensed H-1B nonimmigrant may fully perform the duties of the occupation under the supervision of licensed senior or supervisory personnel.Additionally, exemption is 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 or employment authorization, or the inability to meet a similar technical requirement. Petitions for such unlicensed H-1B beneficiaries may be approved for up to 1 year. Thereafter, an H-1B petition filed for such a beneficiary may not be approved unless the required license has been obtained, the beneficiary is employed in a different position that requires another type of license, or the beneficiary is employed in the same occupation but in a different location that does not require a license.
  4. H-1B CAP Exemption: The Final Rule codifies longstanding policy interpretations identifying which employers are exempt from the H-1B numerical limitations (e., which employers are “cap-exempt”) and it makes conforming changes to the provisions that establish which employers are exempt under ACWIA from paying certain H-1B fees. The Rule also modifies those policies in response to public comment as they relate to (1) nonprofit entities related to or affiliated with institutions of higher education, and (2) governmental research organizations. Finally, the Rule is making revisions to the H-1B cap- and fee-exemption provisions where needed to reflect these modifications.
  5. Maximum Admission Period of H-1B Nonimmigrants – One Year Recapture of Time (AC21 §106): H-1B time may be recaptured at any time before the foreign worker uses the full period of H-1B admission and it need not be through the same employer listed on the Labor Cert/I-140. Spouses have not been given any benefit and must have their own LC/I-140 to qualify.To be eligible for this exemption from the 6-year limit, the individual must have had an application for labor certification or a Form I-140 petition filed on his or her behalf at least 365 days before the date the exemption would take effect. However, an individual becomes ineligible for the lengthy adjudication delay exemption if he or she fails to apply for adjustment of status or an immigrant visa within 1 year of the date an immigrant visa is authorized for issuance. This is a problem for individuals who have moved from the sponsoring employer and are pursuing a second Labor Cert/I-140 with a new employer. Although, the earlier I-140 petition may be valid, the Beneficiary would not be able to file for adjustment of status because they no longer have a permanent offer of employment with the sponsoring employer. This issue remains unresolved and must be taken up with the Service through liaison.

    The final rule also clarifies that exemptions pursuant to section 106(a) of AC21 may only be made in 1-year increments and time spent inside the United States in any other nonimmigrant status (i.e., any nonimmigrant status other than H-1B or L-1) to be “recapturable.”

    Further, requests for 1-year extensions of H-1B status under the lengthy adjudication delay can include any periods of time the foreign national spent outside the United States during previous H-1B petition validity for which “recapture” is sought, as well as any H-1B “remainder” periods available to the foreign national. Workers need not be in H-1B status to be eligible for the lengthy adjudication delay exemptions under section 106(a) and (b) of AC21, as long as they “previously held” H-1B status. This provision, allows foreign workers to obtain additional periods of H-1B status through petitions to change status or through admission after H-1B visa issuance at a U.S. Consulate.

  6. Maximum Admission Period of H-1B Nonimmigrants – Three-Years Recapture of Time (AC21 §104 (c)): Although the heading for section 104(c) refers to a “one-time protection,” the statutory text makes clear that the exemption remains available until the beneficiary has an EB-1, EB-2, or EB-3 immigrant visa immediately available. An H-1B petition filed under section 104(c) may include any time remaining within the normal 6-year period of authorized H-1B stay in addition to the time requested in the exemption request, but in no case may the approval period exceed 3 years or the validity period of the LCA. It is not made clear by this regulation that “the unavailability must exist at time of the petition’s adjudication.”

    Extensions may be granted until a final decision is made to revoke the underlying Immigrant Petition/Adjustment of Status Application (administrative challenges included).

    Similar to the one-year extension, individuals need not been in H status currently to benefit from this rule.

[1] Note, the H-1B and H2B, O and P classifications are specifically omitted; this is because similar grace periods are already currently available to nonimmigrants in H-1B, H2B (8 CFR § 214.2(h)(13)(i)(A) – “Shall” be provided a 10-day grace period before and after the petition validity period) visa classifications.

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