DHS Regulation to Ease Job Portability for High-Skilled Foreign Workers

Today, the final version of the long-awaited U.S. Department of Homeland Security (DHS) regulation, “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers,” was published in the Federal Register. The final rule will take effect on January 17, 2017.

The rule amends current regulations concerning employment-based visa programs with the intent to better enable U.S. employers to sponsor and retain high-skilled nonimmigrant workers and provide greater stability and job flexibility for those workers. The rule also aims to clarify several agency policies and procedures and to increase consistency among agency adjudications.

Key provisions that employers and foreign workers may be interested in are detailed below. Ogletree Deakins will provide further updates and analysis on these provisions in upcoming publications.

1. Retention of Approved Immigrant Visa (I-140) Petitions. An approved I-140 Immigrant Petition for Alien Worker— a petition submitted by an employer documenting an offer of permanent employment—may no longer be automatically revoked based simply on a request to withdraw by the petitioning employer. Nor can it be automatically revoked based on the termination of the employer’s business 180 days after either the I-140’s approval or the filing of an associated I-485 application for adjustment of status. However, the foreign worker cannot retain the I-140 approval if DHS revokes the petition approval for fraud, material misrepresentation, invalidation or revocation of the underlying labor certification, or material error.

2. Retention of Priority Dates. An individual’s priority date determines his or her place in the queue for an immigrant visa number. The foreign worker retains the priority date associated with an I-140 petition approval as long as DHS does not revoke the petition approval for fraud, material misrepresentation, invalidation or revocation of the underlying labor certification, or material error. In other words, the foreign worker retains the priority date as soon as the petition is approved.

3. Job Portability Procedures. DHS clarified the portability provisions of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), which permit adjustment of status applicants to change jobs or employers without the need for a new labor certification or I-140 petition if the application for adjustment of status has been pending for 180 days or more and the new offer of employment is in the same or similar occupational classification as the position listed in the original approved immigrant visa petition. The adjustment of status applicant would need to submit a supplementary form (Form I-485 Supplement J) and any supporting material and credible documentary evidence that sets forth the new position description and its requirements and demonstrates that the new employment offer meets the portability requirements. The applicant may either submit the supplement affirmatively or in response to a request from U.S. Citizenship and Immigration Services (USCIS).

4. Nonimmigrant Grace Periods. DHS established two different grace periods for certain nonimmigrant workers.

When the foreign worker’s employment ends, the foreign worker (and his or her dependents) are eligible for a one-time single grace period of up to 60 days or until the existing validity period ends, whichever is shorter. This applies to individuals in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN status. The foreign worker may benefit from the 60-day grace period multiple times; however, it may only apply one time per authorized nonimmigrant validity period. Although the nonimmigrant is not authorized for employment during this grace period, this provision gives greater flexibility in cases of sudden termination of employment.

E-1, E-2, E-3, L-1, and TN nonimmigrants (and their dependents) are eligible for a 10-day grace period, which is presently available to H-1B workers. The nonimmigrant worker would have 10 days before the petition validity period (or other authorized validity period) and 10 days after the end of the validity period.

The nonimmigrant worker during either the 10-day or 60-day grace period may apply for and be granted an extension of stay or change of status. The worker may also start employment under H-1B portability provisions.

5. H-1B Extensions Beyond the Sixth Year. DHS confirmed its current practice that grants H-1B status beyond the six-year maximum period of stay under AC21 and provided some additional clarifications. The H-1B nonimmigrant worker is eligible for exemption from the six-year limit if the individual has previously held H-1B status and is otherwise eligible for an H-1B approval. The individual is not required to physically be in the United States in H-1B status. Also, the H-1B nonimmigrant worker may rely on any current I-140 approval and qualifying I-140 petition (as mentioned above).

To remain eligible for an extension, the foreign worker must apply for an adjustment of status or an immigrant visa within one year of the date an immigrant visa is authorized for issuance.

6. Portability for H-1B Workers. A foreign worker can have successive H-1B Change of Employer petitions filed on his or her behalf. The worker has valid work authorization as long as each H-1B portability petition separately meets the requirements for H-1B classification and for an extension of stay.

7. H-1B Cap Exemption. Under current policy, H-1B nonimmigrant workers are exempt from the cap based on their employment with: (1) institutions of higher education, (2) a nonprofit entity related to or affiliated with such an institution, or (3) a governmental or nonprofit research organization.

DHS has further expanded the definition for a nonprofit entity related to or affiliated with an institution of higher education to allow nonprofit entities to be exempt from the cap on the basis of having a written affiliation agreement with such an institution. The written agreement would need to establish: (1) an active working relationship between the nonprofit entity and the institution for the purposes of research or education and (2) that one of the nonprofit entity’s fundamental activities may directly contribute to the research or education mission of the institution.

DHS has also further revised the definition of “governmental research organization” to include federal, state, and local government research entities.

8. Eligibility for Employment Authorization in Compelling Circumstances. DHS allows certain beneficiaries of approved I-140 petitions (and their dependents) to apply for a one-year period of employment authorization, but only in very limited circumstances. Eligible beneficiaries are limited to: (1) nonimmigrants in E-3, H-1B, H-1B1, L-1, or O-1 status (which includes any individuals in any applicable grace period); and (2) beneficiaries of an approved I-140 petition who cannot obtain an immigrant visa number due to per-country limitations. The beneficiaries must also demonstrate “compelling circumstances” that justify the grant of employment authorization. Although DHS does not define “compelling circumstances” in its final rule, it identified circumstances when the agency may consider granting employment authorization, such as a serious illness or disability, an employer dispute or retaliation, substantial harm to the applicant and family, or a significant disruption to the employer. The agency is careful to emphasize that the list is not exhaustive.

The beneficiary may seek renewals of this employment authorization in one-year increments if (1) he or she continues to face compelling circumstances and establishes that an immigrant visa number is unavailable based on the Final Action Date of the visa bulletin in effect on the date the renewal application is filed; or (2) the difference between his or her priority date and the Final Action Date is one year or less. (The beneficiary is not required to demonstrate compelling circumstances.)

9. Employment Authorization Document Processing. In certain circumstances, DHS will grant an automatic extension of the Employment Authorization Document (EAD) for up to 180 days as long as the renewal application is based on the same employment authorization category as the existing EAD, the renewal application was timely filed prior to the expiration of the existing EAD, and the individual’s underlying eligibility for employment authorization continues beyond the EAD expiration. The extension is available only to certain foreign nationals, including adjustment of status applicants and individuals filing for renewal of Optional Practical Training based on a degree in a Science, Technology, Engineering, or Math (STEM) field. This provision does not apply to H-4, L-2, or E nonimmigrant spouses seeking an EAD renewal.

DHS also eliminated the provisions that mandate adjudication of an EAD application within 90 days and that authorize an interim EAD where adjudication takes more than the prescribed 90 days.

Finally, DHS also advised that the agency will adopt a filing policy that will generally permit individuals to file an EAD renewal application up to 180 days before the current EAD expires. This filing policy will be posted on the U.S. Citizenship and Immigration Services web site.