US Department of Homeland Security Publishes Regulations on High Skilled Foreign Workers

On November 18, 2016, the Department of Homeland Security 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.  The rule is designed to provide greater certainty for US employers seeking to sponsor and retain immigrant and nonimmigrant workers who are beneficiaries of employment based immigrant visa petitions (Forms I-140) and greater stability and job flexibility for foreign workers so as to allow them to accept promotions and change positions with current employers, change employers and pursue other employment.

The following is a summary of some of some of these benefits:

  1. 10-day nonimmigrant grace periods: The final rule provides for grace period of up to 10 days  prior to the start and after the end of the authorized period for nonimmigrants in H-1B, O-1, E-1, E-2, E-3, L-1 and TN classifications.
  1. 60-day nonimmigrant grace periods: The final rules establishes a grace period of up to 60 consecutive days during each authorized period for workers in H-1B, H-1B1, L-1, O-1, E-1, E-2, E-3 and TN classificationsThis grace period allows for these nonimmigrants to change employers or their status when their employment ceases prior to the end of the petition validity period.
  1. H1B extensions of stay under AC21: The final rule addresses extensions beyond 6 years and reaffirms extensions based on labor certification applications being filed by the end of the foreign worker’s fifth year in H-1B status or a Form I-140 immigrant visa petition being approved by the end of the foreign workers sixth year in H-1B status.
  1. H-1B portability: It confirms the existing practice of allowing foreign workers to begin employment with new H-1B employers upon filing of the petition and allows H-1B employers to file successive H-1B portability petitions (“bridge petitions”).
  1. Counting against the H-1B annual cap: The rule clarifies how the counting is done and method for determining whether a petition is cap-exempt.
  1. H-1B cap exemptions: It clarifies and improves the method for determining whether cap exempt and provides for a new basis of cap exemption based on an affiliation between a nonprofit organization and an institution of higher education.
  1. Protections for H-1B whistleblowers: The rule allows H-1B nonimmigrant workers who provide information to help investigations regarding alleged Labor Condition Applications (LCA) obligations to provide evidence showing that their failure to maintain H-1B status was due to extraordinary circumstances.
  1. Form I-140 petition validity: The rule clarifies the circumstances under which the Form I-140 immigrant petition for  alien workers remains valid even after the I-140 petitioner withdraws the petition or terminates business, including for purposes of H-1B extensions, H-1B portability and I-485 portability under INA 204(j).
  1. Establishment of priority dates: The rules states that priority dates are generally established based on the filing of certain petitions and applications (consistent with existing DHS practice).
  1. Retention of priority dates: The rule enhances job portability for workers who are beneficiaries of approved Form I-140s, clarifies which workers may retain priority dates and transfer those dates to subsequently approved I-140s.  The priority date will generally be retained as long as the original Form I-140 is not revoked based on material error; fraud or willful misrepresentation of a material fact; or invalidation or revocation of a labor certification application.  This allows certain workers to be promoted without losing their place in the line for immigrant visas.
  1. Retention of validity of employment-based immigrant visa petitions: The rules states that Form I-140 immigrant visa petitions approved for 180 days or more would no longer be subject to automatic revocation based solely on the withdrawal by the petitioner or termination of business.
  1. INA 204(j) adjustment of status portability: The rule allows certain workers who have pending Forms I-485 applications to adjust status to change employers or jobs without jeopardizing the approved Form I-140 petition on which they are the beneficiary.
  1. Eligibility for employment authorization in compelling circumstances: The rule would allow for such employment authorization for the principal beneficiary in E-3, H-1B, H-1B1, L-1 or O-1 status (and the spouse and dependents) of an approved I-140 and even when the Form I-485 application to adjust status has not yet been approved. Compelling circumstances must be demonstrated.
  1. Adjudication of employment authorization documents: The rule clarifies that USCIS no longer must adjudicate an employment authorization document (EAD) within 90 days.  However, USCIS will also allow those with timely filed EAD applications an automatic EAD extension of up to 180 days so long as the EAD renewal is based on the same category.