DHS Publishes New Regulation Significantly Impacting High-Skilled Workers

January 16, 2017

The U.S. Department of Homeland Security (DHS) has published a new regulation codifying longstanding policies introduced by the American Competitiveness in the Twenty-First Century Act of 2000 while also making it easier for foreign workers to change employers during the employment-based permanent residence process.  The new regulation establishes grace periods for certain classes of nonimmigrant workers and their dependents, and provides an automatic extension of work authorization for adjustment of status applicants who have filed a timely application to renew an employment authorization document (EAD card). 

 

The new regulation will take effect on January 17, 2017.  Specific provisions of the new regulation are summarized below.

 

 

Codification of Eligibility for Post-Sixth Year Extensions of H-1B Status

 

The new regulation codifies post-sixth year H-1B extensions that were introduced by the American Competitiveness in the Twenty-First Century Act of 2000. 

 

  • Lengthy Adjudication Delay Exemption: H-1B Extension in 1-Year Increment

Foreign workers in H-1B status, or who have previously held H-1B status, are eligible for extensions of H-1B status in 1-year increments beyond the 6-year “limitation” if at least 365 days have elapsed since the filing of a Labor Certification or a Form I-140 petition.  The employer filing the H-1B extension petition need not be the employer that filed the Labor Certification or Form I-140 petition.

 

Under the new regulation, a foreign worker will lose eligibility to extend H-1B status in one-year increments, if:

 

  • At the time the H-1B extension is submitted (1) the Labor Certification has expired or been denied, revoked or invalidated; (2) the Form I-140 petition has been denied or revoked; or (3) the foreign worker’s Adjustment of Status application or Immigrant Visa Processing has been denied or approved; or

 

  • The foreign worker has an approved Form I-140 petition and is eligible to apply for Adjustment of Status or Immigrant Visa Processing but failed to do so within 1 year of his or her eligibility to apply.  Where the 1-year period is interrupted as a result of immigrant visa unavailability (i.e., retrogression in Visa Bulletin priority dates), a new 1-year period will be afforded to allow the foreign worker to apply for Adjustment of Status or Immigrant Visa Processing once his or her priority date becomes current.

 

  • Per-Country Limitation Exemption: H-1B Extension in 3-Year Increments

Where the foreign worker has an approved Form I-140 petition but is unable to apply for Adjustment of Status or Immigrant Visa Processing due to per-country limits, the foreign worker is eligible for post-sixth year extensions of H-1B status in increments of 3 years.  A foreign worker whose approved Form I-140 petition was withdrawn 180 days or more after its approval will continue to be eligible for post-sixth year extensions of H-1B status in increments of 3 years provided that withdrawal of the Form I-140 petition was not based on fraud, misrepresentation, revocation or invalidation of the approved Labor Certification, or material error by United States Citizenship and Immigration Services (USCIS).

 

 

Ten-Day Grace Periods for Certain Nonimmigrants

 

A foreign worker eligible for admission as an E-1, E-2, E-3, H-1B, L-1 or TN nonimmigrant may now seek to enter the United States up to 10 days before the start of the petition validity period.  Moreover, a foreign worker holding E-1, E-2, E-3, H-1B, L-1 or TN nonimmigrant status is also eligible for an additional 10-day “grace” period to depart the United States following expiration of his or her petition validity period.  These 10-day grace periods also apply to qualifying dependents.

 

 

New Grace Period for Certain Terminated Nonimmigrants

 

A foreign worker holding E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN nonimmigrant status who has been terminated prior to the end of his or her authorized period of stay will be permitted a “grace” period of up to 60 days (or until the end of his or her authorized period of stay, if less than 60 days) to seek an extension of stay, change of status, or otherwise maintain status.  This will allow a foreign worker to seek sponsorship with a new employer during the 60-day grace period or to make arrangements for departing the United States.  This 60-day grace period also applies to qualifying dependents.

 

A foreign worker holding E-1, E-2, E-3, H-1B1, L-1, O-1 or TN nonimmigrant status is not permitted to work during the 60-day grace period.  A foreign worker holding H-1B nonimmigrant status may be eligible to commence employment with a new employer during the 60-day grace period pursuant to H-1B portability – provided that the new employer’s H-1B petition is submitted to USCIS during the 60-day grace period.

 

 

Retention of Form I-140 Priority Dates

 

A Form I-140 petition will not be automatically revoked if the sponsoring employer withdraws it or goes out of business after the Form I-140 petition has been approved for 180 days or more.  This will strengthen the ability of a foreign worker with a Form I-140 petition approved under the EB-1, EB-2 or EB-3 classification to retain his or her priority date and transfer the priority date to a subsequent Form I-140 petition.

 

If the sponsoring employer withdraws a Form I-140 petition or goes out of business, then the sponsoring employer’s job offer is rescinded and the foreign worker must obtain another Form I-140 petition approved under the EB-1, EB-2 or EB-3 classification before he or she will be eligible to apply for employment-based Immigrant Visa Processing or Adjustment of Status – unless the foreign worker qualifies for Adjustment of Status under AC21 Portability.

 

  • New Rule Pertaining to Withdrawal of a Form I-140 Petition

A Form I-140 petition is revoked where it has been withdrawn by the employer less than 180 days after its approval, unless the foreign worker has an Adjustment of Status application pending for 180 days or more.  If a Form I-140 petition has been approved for more than 180 days or the foreign worker has an Adjustment of Status application pending for 180 days or more, then a Form I-140 remains approved unless it is revoked because: (1) fraud or material misrepresentation; (2) Department of Labor revocation of the approved Labor Certification; (3) USCIS or Department of State invalidation of the approved Labor Certification; or (4) USCIS determination that the Form I-140 petition approval was based on material error.

 

  • New Rule Pertaining to Revocation of a Form I-140 Petition Where Business Operations of the Sponsoring Employer Terminate

A Form I-140 petition is revoked where the business operations of the employer sponsoring the Form I-140 petition terminate less than 180 days after its approval, unless the foreign worker has an Adjustment of Status application pending for 180 days or more.  If business operations of the employer sponsoring a Form I-140 petition terminate 180 days or more after approval of the Form I-140 petition or the foreign worker has an Adjustment of Status application pending for 180 days or more, then a Form I-140 remains approved unless it is revoked because: (1) fraud or material misrepresentation; (2) Department of Labor revocation of the approved Labor Certification; (3) USCIS or Department of State invalidation of the approved Labor Certification; or (4) USCIS determination that the Form I-140 petition approval was based on material error.

 

The new regulation is effective January 17, 2017 and will not be applied retroactivity to a Form I-140 petition that has already been revoked.

 

 

Eligibility for Employment Authorization for Certain Foreign Workers with an Approved Form I-140 Petition

 

A foreign worker in E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status with a Form I-140 petition approved under the EB-1, EB-2 or EB-3 classification may be eligible to file for an initial Employment Authorization Document (EAD card) if the foreign worker’s priority date is subject to immigrant visa backlogs (i.e., priority date is not “current”) and USCIS finds that the foreign worker has shown compelling circumstances for issuing an EAD card.  Derivative spouses and children may also be eligible to apply for an EAD card.  An initial or renewal EAD card granted under this section of the new regulation may only be issued with a validity period of one year.

 

A foreign worker with a Form I-140 petition approved under the EB-1, EB-2 or EB-3 classification who held valid E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status when applying for his or her initial EAD card may be eligible to file for a renewal EAD card (prior to expiration of the initial EAD card) if:

 

  • His or her priority date is subject to immigrant visa backlogs and USCIS finds that the foreign worker has shown compelling circumstances for issuing an EAD card; or

 

  • There is a difference of one year or less between the foreign worker’s priority date and the priority date listed by the Department of State’s Visa Bulletin (for the foreign worker’s preference category and country of chargeability) at the time the EAD renewal application is filed.

 

  • Example 1: Foreign worker was born in India, holds H-1B status, and has a Form I-140 petition approved under the EB-2 classification with a priority date of April 1, 2011.  The Visa Bulletin indicates immigrant visas are available for EB-2 India cases with a priority date of February 1, 2011 or earlier.  Foreign worker is not eligible to submit the Adjustment of Status application but is eligible to apply for an EAD card. 

 

  • Example 2: Foreign worker was born in India, holds H-1B status, and has a Form I-140 petition approved under the EB-2 classification with a priority date of April 1, 2011.  The Visa Bulletin indicates immigrant visas are available for EB-2 India cases with a priority date of February 1, 2012 or earlier.  Foreign worker is eligible to submit the Adjustment of Status application and is also eligible to apply for an EAD card.

 

  • Example 3: Foreign worker was born in India, holds H-1B status, and has a Form I-140 petition approved under the EB-2 classification with a priority date of April 1, 2011.  The Visa Bulletin indicates immigrant visas are available for EB-2 India cases with a priority date of February 1, 2010 or earlier.  Foreign worker is not eligible to submit the Adjustment of Status application but may be eligible to apply for an EAD card.

 

NOTE: While there is more than a 1 year difference between the foreign worker’s priority date and the Visa Bulletin priority date, the foreign worker may be able to qualify for an EAD card renewal where his or her priority date is not current and the foreign worker is able to demonstrate compelling circumstances for issuing an EAD card. 

 

  • Example 4: Foreign worker was born in India, holds H-1B status, and has a Form I-140 petition approved under the EB-2 classification with a priority date of April 1, 2011.  The Visa Bulletin indicates immigrant visas are available for EB-2 India cases with a priority date of February 1, 2013 or earlier.  Foreign worker is not eligible to apply for an EAD card under the new regulation.

 

 

Automatic Extension of Timely Filed Employment Authorization Document (EAD Card) Renewals

 

Where a foreign worker has filed a timely EAD card renewal, the new regulation automatically extends the validity of the expiring EAD card and work authorization for a period of up to 180 days.  The EAD renewal application must be based on the same employment authorization category for which the expiring EAD card was approved.  A foreign worker eligible for the automatic 180-day extension may demonstrate his or her work authorization by presenting the facially expired EAD card along with an I-797 Notice of Action (i.e., I-797 Receipt Notice) showing the EAD renewal application was timely filed.

 

The automatic 180-day extension does not apply to employment authorization categories requiring adjudication of an underlying application or petition in order for USCIS to adjudicate the EAD renewal application.  As such, spouses holding E-1, E-2, E-3, H-4, or L-2 dependent nonimmigrant status are not eligible for the automatic extension of their expiring EAD card and work authorization.

 

The new regulation also removes the requirement that USCIS adjudicate EAD applications within 90 days.  USCIS has indicated that it will now allow foreign workers to file EAD renewal applications up to 180 days prior to the expiration of one’s current EAD card.

 

 

Codification of “AC21 Portability” and Introduction of Form I-485 Supplement J

 

The new regulation codifies existing USCIS policy allowing a foreign worker with a pending or approved Form I-140 petition to “port” to new employment where his or her Adjustment of Status application has been pending for 180 days or more.  Under the new regulation, USCIS may require that a foreign worker submit a Form I-485 Supplement J, or a foreign worker may affirmatively submit the Form I-485 Supplement J, along with documentary evidence to establish:

 

  • If no change in the offer of employment

    • The offer of employment stated on the Form I-140 petition continues to exist; and

    • He or she will be employed in the offered position upon being granted permanent resident status.

 

  • If there is a change in the offer of employment

    • He or she has new employment from the employer that sponsored the Form I-140 petition, a new employer or self-employment;

    • The new employment is in the same or similar occupational classification as that stated on the Form I-140 petition;

    • He or she will be employed in the same or similar position upon being granted permanent resident status;

    • His or her Adjustment of Status application has been pending for 180 days or more; and

    • Either:

      • He or she has an approved Form I-140 petition; or

      • He or she has a pending Form I-140 petition that was approvable at the time of filing and remained approvable for 180 days after the Adjustment of Status application was filed.

 

The new regulations define “same occupational classification” as an occupation that resembles in every relevant respect the occupation for which the underlying employment-based immigrant visa petition was approved.  “Similar occupational classification” is defined as an occupation that shares essential qualities or has a marked resemblance or likeness with the occupation for which the underlying employment-based immigrant visa petition was approved.

 

 

 

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