In a previous article, we summarized the key provisions of the 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,” which went into effect on January 17, 2017. In this article, we analyze the key provisions and the practical implications for employers and employees in further detail.
1. Retention of Priority Dates
The regulation clarifies that an employee retains his or her priority date immediately upon approval of the I-140 petition, regardless of whether a former employer subsequently withdraws it (absent a determination of fraud or that the petition was approved in error). Although a new labor certification and I-140 petition may be required after a change in employer, the ability to retain the priority date provides assurance that the employee will maintain his or her place in the often-lengthy queue for an immigrant visa (e.g. permanent residence).
2. Retention of Approved Immigrant Visa (I-140) Petitions
The regulation further establishes that an approved I-140 petition may no longer be automatically revoked based simply on the petitioning employer’s request to withdraw the approval, provided that the I-140 petition has been approved for 180 days (or if an associated I-485 application for adjustment of status has been filed and pending for 180 days). Thus, even if the prior employer withdraws the approved I-140 petition, the new employer can utilize the incoming employee’s prior I-140 approval for H-1B extension purposes, provided that at least 180 days have elapsed since the I-140 approval date. The employee’s spouse can also continue to qualify for an H-4 Employment Authorization Document (EAD) based on the I-140 approval.
For an incoming employee subject to long wait times due to the per-country limitations on immigrant visas, the new employer now has added assurance that the new employee can continue to obtain H-1B extensions and may therefore be able to wait to begin the labor certification process.
However, if the incoming employee has a prior I-140 approval with a priority date that may become current in the near future, the new employer should seriously consider starting the labor certification process within the first year of employment (or sooner). This is because a provision in the regulation states that an employee becomes ineligible for additional H-1B extensions beyond the normal six-year stay if he or she fails to apply for adjustment of status within one year of the date an immigrant visa number becomes available. In other words, although an I-140 petition from a prior employer cannot be the basis for a future adjustment of status application, once the priority date is current, it likewise cannot be the basis for future H-1B extensions beyond the six-year stay, according to the new regulation. Thus, employers that hire employees with soon-to-be-current priority dates should begin the labor certification process at an early point in order to avoid any gaps in work authorization.
As many employers are aware, the movement of priority dates can be haphazard and unpredictable. In order to mitigate the impact of the requirement to file an Adjustment of Status application within one year after the priority date becomes current, the regulation resets the one-year clock following any period in which an immigrant visa subsequently becomes unavailable (i.e. retrogression). The regulation also authorizes U.S. Citizenship and Immigration Services (USCIS) to excuse an individual’s failure to timely file an Adjustment of Status application as a matter of discretion, if the individual establishes that the failure to apply was due to circumstances beyond his or her control. USCIS has not yet indicated whether the sudden forward movement of a priority date will be considered circumstances beyond an employee’s control.
Employers should consider requesting and carefully reviewing any incoming employee’s prior I-140 approval to determine whether it will be feasible to extend the employee’s H-1B status and work authorization. Additionally, employers may want to review the priority dates of their current employee population and, as appropriate, consider initiating the labor certification process. This review should cover not only employees who received an I-140 from a prior employer, but also situations in which the I-140 from the current employer is no longer valid for adjustment of status purposes (due to certain changes in work locations or job duties, for example).
3. Employment Authorization in Compelling Circumstances
The new regulation also allows certain individuals of approved I-140 petitions (and their dependents) to apply for a one-year period of employment authorization under “compelling circumstances.” As discussed above, the retention of approved I-140 petitions is of great importance here, as one of the requirements to qualify for the “compelling circumstances” EAD is an approved I-140 petition.
DHS describes a scenario to illustrate how this provision may benefits employers in which an employee would be eligible for the “compelling circumstances” EAD. DHS notes the case in which an employer undergoes corporate restructuring such that the employer is no longer eligible to employ L-1 employees, there are no available avenues to promptly obtain another work-authorized nonimmigrant status for an L-1 employee (who has an approved I-140 petition), and the employer would suffer substantial disruption due to the critical nature of the employee’s services. In this situation, the “compelling circumstances” EAD would provide the employer and employee a temporary solution for work authorization while they continue their efforts to obtain an alternate form of work authorization for the employee.
As referenced above, it remains to be seen whether employees who cannot file an adjustment of status application within one year of the date an immigrant visa number becomes available will qualify for the “compelling circumstances” EAD. Until there is definitive guidance on this point, employers may want to take a conservative approach and initiate the labor certification process, as noted above.
4. H-1B Extensions
For purposes of obtaining additional H-1B time beyond the normal six-year stay (based on reaching certain benchmarks in the permanent residency process), the new regulation clarifies that as long as an employee previously held H-1B status, he or she does not need to be in H-1B status in order to obtain additional H-1B time, nor does the employee need to have any remaining time left in the initial six-year stay.
Under the new rule, an employee who has fully exhausted his or her six-year stay can apply for additional periods of H-1B status through a change of status petition (if the employee is in the United States) or through admission at a port-of-entry after the issuance of an H-1B visa by a U.S. Consulate abroad. The employee may also be able to take advantage of the 60-day grace period (described in further detail below). By not having to “reserve” some remaining H-1B time, there is more time for the employer to secure an I-140 approval (or for the PERM application to have been pending for at least 365 days), such that the employee becomes eligible for additional H-1B time and therefore minimizes a potential gap in employment authorization.
5. Nonimmigrant Grace Periods
When employment ends, certain employees (and dependents) may now be eligible for a one-time single grace period of up to 60 days or until the existing validity period ends, whichever is shorter. Although the individual is not authorized for employment during this grace period, he or she may lawfully remain in the United States. The new regulation provides that, during the grace period, employees are still eligible to change employers under the H-1B portability provisions. Thus, even if prior employment was terminated before the filing of a new H-1B petition, hiring employers can request an extension of H-1B status for the employee without concern that the employee will be deemed “out of status” and ineligible for an extension of stay.
Hiring employers do, however, need to be aware of situations in which incoming employees have a pending nonimmigrant visa extension petition, but the underlying I-94 has expired. Based upon a cautious reading of the new provision, such individuals would not be eligible for any grace period. Aside from the 60-day grace period, certain employees (and their dependents) may also be eligible for a 10-day grace period before and after the petition validity period. During both the 10-day and 60-day grace periods, employers may apply for an extension of stay or change of status on behalf of the employee.
6. Processing of Employment Authorization Documents
Although the new regulation eliminates the 90-day adjudication requirement by USCIS for EAD applications, applicants are now permitted to file EAD renewal applications up to 180 days before the current EAD expires. In certain circumstances, DHS will also grant an automatic extension of work authorization for up to 180 days while the renewal application is pending. This will help prevent gaps in employment authorization for certain employees, including adjustment of status applicants, while waiting for the new EAD. However, H-4, L-2, and E nonimmigrant spouses are not granted automatic extension of their EAD. Because the filing window has been extended from 120 days to 180 days prior to an existing expiration date, employers and employees will have greater flexibility in ensuring the renewal application is timely filed. Employers and employees should consider filing EAD renewal applications as close to the 180 day mark as possible.
7. Form I-485 Supplement J
The regulation also standardizes the data collection method for Adjustment of Status portability requests. In response to a request from USCIS, employees may now be required to file a Supplement J form, to demonstrate that an existing or new job offer exists and is legally sufficient to support a pending adjustment of status application. Supplement J is intended to replace the need for employers and employees to submit job offers and employment confirmation letters, and it provides a uniform method for USCIS to capture the necessary information about a qualifying job offer. The standardized form provides employers greater clarity in the type of information and evidence that USCIS needs to support job portability requests.
Importantly, there is nothing in either the final rule or the comments that requires employers to affirmatively file Supplement J. Unless the government indicates otherwise in the future, adjustment of status portability requests can be limited to instances in which USCIS specifically requests this information.
As mentioned above, this new regulation takes effect on January 17—several days before the incoming administration takes office. Ogletree Deakins will continue to monitor any upcoming legislative or executive action that may affect this regulation.
