DHS Issues Proposed Rule for Changes to Employment of High-Skilled Foreign Workers

On December 30, 2015, the U.S. Department of Homeland Security (DHS) released a notice of proposed rulemaking (NPRM) concerning employment-based visa programs for high-skilled workers. The notice is published in the December 31, 2015 Federal Register and is subject to a 60-day comment period ending on February 29, 2016.

The proposed regulations cover a wide range of issues and represent significant amendments to the employment-based immigration system. The NPRM divides the proposed changes into three categories: (1) provisions concerning the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) and the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), (2) changes to further improve stability and job flexibility for certain foreign workers, and (3) regulations governing the processing of certain applications for employment authorization documents.

Proposed Amendments Relating to AC21 and ACWIA

The AC21 and ACWIA statutes were each signed into law over 15 years ago. Since that time, however, DHS (and its predecessor agency) has not promulgated the implementing regulations concerning certain key provisions of the acts. Employers have therefore relied on a series of policy memoranda and other nonbinding agency communications for guidance on how DHS interprets various provisions of the laws, including issues relating to extensions of H-1B status beyond the traditional six-year limit, job portability for certain applicants with pending adjustment of status applications, and exemptions from the annual H-1B quota. Despite the critical importance of these matters to the employment-based immigration system, there has been a noticeable absence of regulatory guidance on these issues. The NPRM seeks to remedy that problem, which according to DHS, will “largely conform DHS regulations to longstanding agency policies and procedures,” “clarify and improve agency policies and procedures,” and “provide greater transparency and certainty to affected employers and workers, while increasing consistency among agency adjudications.”

The proposed regulations are largely consistent with historical agency policy regarding:

• extensions of H-1B status beyond the traditional six-year limit for employees who have reached certain benchmarks in the permanent residence process, but who are unable to obtain permanent residency either due to per-country limitations on immigrant visas or lengthy adjudication delays;
• continued validity of an immigrant petition in the event of a job change, provided the adjustment of status application has been pending for at least 180 days and the worker has a new offer of employment in the same or similar occupational classification (commonly referred to as “adjustment of status portability”);
• the ability of H-1B workers to commence new employment upon the filing of a non-frivolous H-1B petition (commonly referred to as “H-1B portability”);
• calculations of maximum periods of stay in nonimmigrant status, and specifically, the ability to “recapture” any time during which a foreign national is physically absent from the United States; and
• employers that are not subject to the annual H-1B quota, including institutions of higher education, or related or affiliated nonprofit entities.

Notwithstanding the overall conformity to long-standing policies and practice, the NPRM does differ from historical guidance related to the AC21 and ACWIA statutes in a few discrete areas.

First, in order to remain eligible for extensions of H-1B status beyond the six-year limit, the proposed rule would require an individual to file an adjustment of status application (or application for an immigrant visa) within one year of the date on which the visa becomes immediately available. Although many foreign nationals may be eager to obtain permanent residency, there may be legitimate reasons that preclude an individual from filing an adjustment of status application within the prescribed one-year time frame. The proposal does grant the agency discretion to excuse a delay if the worker “establishes that the failure to apply was due to circumstances beyond his or her control,” but leaves unclear what type of circumstances would merit this discretion.

Second, the NPRM proposes clarifications under section 204(j) of the Immigration and Nationality Act, which governs the ability of certain foreign workers to change jobs or employers if they have been sponsored for permanent residence by U.S. employers and have applications for adjustment of status that have been pending for at least 180 days. Specifically, consistent with a November 20, 2015 draft policy memorandum released by United States Citizenship and Immigration Services (USCIS), the NPRM proposes definitions for the terms “same” or “similar” as guidance that USCIS Officers may use to determine whether a foreign worker’s new job is in “the same or similar occupational classification,” thus enabling otherwise-eligible workers the ability to change jobs without invalidating the immigrant visa petition.

In addition, the NPRM clarifies that, for purposes of determining the maximum validity period of H-1B status, an H-1B petitioner may “recapture” on behalf of the H-1B nonimmigrant worker any time the worker spent physically outside the United States for a period that exceeds 24 hours. This provision may be particularly useful for individuals who frequently travel abroad for short periods (e.g., overnight trips to Canada or Mexico). Although the worker may be present in the United States at some point during two consecutive calendar days, the rule contemplates that a recapture may still be possible, provided the absence was for at least 24 hours. The proposed rule also clarifies that the reason for the time spent outside the United States is irrelevant to the recapture determination, but may still be relevant to the determination of the individual’s admissibility back into the country.

Finally, the rule proposes “additional means by which nonprofit entities may establish a sufficient relation or affiliation with an institution of higher education” in order to qualify for an exemption from the annual H-1B quota. Specifically, the rule contemplates certain situations in which a written affiliation agreement (along with certain other criteria) may satisfy the exemption threshold, thereby providing additional flexibility to accommodate the wide range of arrangements that may exist between educational institutions and nonprofit entities.

Changes to Further Improve Stability and Job Flexibility for Certain Foreign Workers

The second series of proposals concern four distinct amendments that are intended to “provide much needed flexibility to a limited group of beneficiaries of employment-based immigrant visa petitions, as well as the U.S. employers who employ and sponsor them for permanent residence.”

1. Revocation of Approved Immigrant (I-140) Petitions. The proposal modifies the regulations to provide that an immigrant petition which has been approved for at least 180 days may no longer be revoked based simply on a withdrawal by the petitioning employer or termination of the employer’s business. Notably, the rule clarifies that such a withdrawal would not impact the foreign worker’s eligibility for H-1B extension of status requests under AC21. The clear delineation between a withdrawal and a revocation is a long-awaited relief from many years of inconsistent agency policy and adjudication standards. DHS would, however, retain its long-standing authority to revoke a petition in the event of fraud or willful misrepresentation, invalidation or revocation of the underlying labor certification, or cases involving government error.

2. Priority Date Retention. The NPRM also clarifies that a foreign worker is able to retain the priority date from a prior I-140 petition, regardless of a subsequent withdrawal by the petitioner, or termination of the employer’s business, within 180 days after the approval. In other words, the priority date attaches to the worker immediately upon approval. This provision likewise does not apply to cases involving fraud or willful misrepresentation, invalidation or revocation of the underlying labor certification, or government error.

3. Grace Periods. The proposed rule establishes two different grace periods for certain nonimmigrant workers. First, the NPRM extends a 10-day grace period presently available to H-1B workers to certain other nonimmigrant visa classifications, including E-1, E-2, E-3, L-1, and TN workers (and their dependents). These nonimmigrants will be authorized for a 10-day grace period starting immediately before the authorized validity period (in order to enter the country and prepare for employment), as well as a 10-day grace period at the conclusion of the validity period (to depart the United States or otherwise change or extend their status). Consistent with the current H-1B grace periods, nonimmigrants would not be authorized for employment during these time periods. Second, DHS would offer a 60-day grace period to individuals (and their dependents) in E-1, E-2, E-3, H-1B, H-1B1, L-1, and TN status. It is exceptionally noteworthy that H-1B nonimmigrants would be eligible for portability during this grace period, thereby providing individuals with work authorization upon the filing of a non-frivolous H-1B petition by a new employer. This provision would provide additional flexibility in cases of sudden termination of employment. DHS would offer the protection “for a one-time period during any authorized validity period.”

4. Eligibility for Employment Authorization in Compelling Circumstances. DHS proposes to extend a one-year period of employment authorization (with the possibility of renewal) to certain beneficiaries of approved immigrant visa petitions, but only in very narrow and limited circumstances. The pool of eligible beneficiaries would be limited to (1) nonimmigrants in E-3, H-1B, H-1B1, O-1, or L-1 status who are the beneficiaries of approved immigrant visa petitions; and (2) whose priority date is within one year of the date on which visa numbers are available for the same preference category and country of nationality. A nonimmigrant who meets these criteria would then need to demonstrate “compelling circumstances” that justify the grant of employment authorization. The proposal makes clear that a determination of compelling circumstances will be made only in limited situations, such as in the case of a serious illness or disability, employer retaliation, or significant harm to the employee or disruption to the employer. The proposed rule clarifies that “compelling circumstances” cannot be demonstrated simply by reaching the maximum period of stay in a given nonimmigrant classification.

It is worthwhile to note that the DHS proposal does include other regulatory amendments. However, these additional changes largely conform to current policy guidance, and so the primary purpose of the regulations in these additional areas is to formalize the existing guidance.

Processing of Employment Authorization Documents

The NPRM eliminates the current regulation that mandates adjudication of an application for an Employment Authorization Document (EAD) within 90 days. To counterbalance this proposal, the agency would grant—in certain circumstances—an automatic extension of an EAD for up to 180 days, provided the renewal application was filed prior to the expiration date of the existing EAD. This provision would effectively expand the benefit currently afforded to individuals filing for renewal of Optional Practical Training based on a degree in a STEM field, to certain other individuals who are eligible for EADs. This includes individuals with pending adjustment of status applications, but excludes nonimmigrants seeking renewals of EADs based on H-4 status.

Conclusion

The proposed regulations have the potential to change a wide array of provisions in the employment-based immigration system. However, due to various eligibility criteria and other limiting factors, a careful reading suggests that the impact upon employers and their foreign national employees may not be as far-reaching as one might expect from such a voluminous proposal (if implemented in its current format). Nevertheless, the NPRM represents a key milestone in the Obama administration’s immigration-related executive actions and, in particular, the administration’s stated goal to modernize and streamline the immigrant visa system.

DHS will accept comments on the proposed regulation for a minimum of 60 days. Ogletree Deakins will continue to follow and report on developments with the proposed rule as it continues through the regulatory process.