New DHS Rule on High Skilled Workers I-140 Petitions and I-485 Portability

December 23rd, 2016

US DHS Final Rule on High Skilled Workers Provides Protections and Benefits for Beneficiaries of Form I-140 Immigrant Visa Petitions

On November 18, 2016, the Department of Homeland Security (DHS) published a final rule providing benefits to many highly skilled nonimmigrant workers and those workers with immigrant employment-based cases (Forms I-140) in the EB-1, EB-2 and EB-3 categories. This final rule will become effective on January 17, 2017. Among the benefits provided by this rule are that of retention of the priority date of the approved I-140 immigrant visa petition and the maintenance of the validity of the petition itself for H-1B extensions, employment authorization upon a showing of compelling circumstances and I-485 adjustment of status portability.

Retention of the Priority Date

The priority date of an approved I-140 employment-based immigrant visa petition is the beneficiary’s place in line for an immigrant visa. There are a limited number of immigrant visa numbers available each year with the same number being allotted to each country. Backlogs develop as a result of more applicants than numbers being available and this pertains in particular to certain applicants from India and China. If one is able to retain the priority date, then a subsequent I-140 petition on behalf of that same beneficiary will have that earlier priority date. Therefore, for foreign applicants from oversubscribed countries, retaining one’s priority date, or place in line, is a very important in obtaining legal permanent residency sooner than later.
In the final rule, the DHS provides that the beneficiary will retain the priority date of the Form I-140 immigrant visa petition, regardless of whether it is revoked, except when the I-140 is revoked for fraud, misrepresentation or material error. No longer will there be any risk that the beneficiary will lose his or her priority date upon a revocation of the I-140 based on the termination of business or its sponsorship of the beneficiary.

Validity of the Petition

The final rule also provides the criteria under which the I-140 immigrant visa petition will remain valid, even if revoked or withdrawn, for H-1B extensions, compelling-circumstances employment authorization and I-485 portability purposes. The following requirements must be met for the I-140’s validity to be retained:

• The withdrawal is filed at least 180 days after approval of the I-140;
• The I-140 petitioner’s business terminates at least 180 days after approval of the I-140; or
• The approved I-140 is associated with an I-485 that has been pending for at least 180 days.

The great advantage of maintaining an approved I-140 petition is that the beneficiary can obtain H-1B extensions beyond the maximum six-years, port to a new employer based on a pending I-485 application to adjust status, and obtain employment authorization based on compelling circumstances (as discussed in an earlier blog of mine).
H-1B Extensions beyond Six Years

The H-1B visa is the primary nonimmigrant visa that allows foreign nationals with at least a bachelor’s degree or equivalent to work in a specialty professional occupation in the US. H-1B status is normally granted for six years, although there are some exceptions to this statutory cap, including two that are based on associated applications for legal permanent residency filed on behalf of the beneficiary. The first exception allows for one-year indefinite extensions based on a labor certification or I-140 being filed at least 365 days before the end of the fifth year of the H-1B worker’s status in the US. The second exception allows for three-year indefinite extensions based on an I-140 being approved by the end of the foreign national’s sixth year in H-1B status and on the unavailability of an immigrant visa number under the per country limitation.

The new rule will make it easier for the H-1B worker to obtain three-year H-1B extensions, since the revocation of an I-140 more than 180 days after its approval will not jeopardize the ability of the foreign worker to obtain indefinite three-year extensions. Also, the new rule codifies the existing policy that the H-1B worker can obtain an extension with a new H-1B employer based on an approved I-140 filed by a different employer.

Adjustment of Status (I-485) Portability

Adjustment of status (I-485) portability allows certain applicants for adjustment of status to port or switch to a different sponsoring employer so long as the position is in the same or similar occupation as the original PERM labor certification application (or I-140 immigrant visa petition if no PERM was required). The job location and salary can be for a different region in the US. The new rule codifies the requirement that the I-485 must have been pending for at least 180 days to secure the benefits of portability.
The underlying 140 need not also have been pending for 180 days but it must be demonstrated that it was approvable when filed and up until the 180 days that the 485 has been pending. As discussed above, the I-140 will remain valid for porting purposes even if revoked or withdrawn 180 days or more after the 140 was approved or after the associated 485 was filed.
It should be emphasized that if the beneficiary has not secured the benefits of I-485 portability (e.g. has not filed the I-485 because the priority date is not yet current or has an I-485 that has not been pending at least 180 days), then a new I-140 (and possibly PERM) must be obtained on the beneficiary’s behalf in order for the beneficiary to obtain legal permanent residency in the US.

The new rule also defines a same or similar occupation. It states that it requires either an occupation that “resembles in every relevant respect the occupation” that was the basis of the approved I-140, or an occupation that “shares essential qualities or has a marked resemblance or likeness with the occupation” that was the basis of the approved I-140. The Standard Occupational Classification (SOC) of the Department of Labor is only one factor in making this determination. The rule notes that career progression may satisfy this definition.

New Form Supplement J

To apply for I-485 portability, the new rule requires the filing of Form Supplement J instead of the AC21 letter. There is no filing fee for this form and no receipt that will be issued. The rule does not address whether one who has a pending I-485 along with a filed AC 21 letter portability letter must file the Supplement J. It could be filed or the applicant could wait for USCIS to issue a request for evidence for it.