The United States Citizenship and Immigration Service (“USCIS”) issued a new regulation on November 18, 2016, entitled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers” in an effort to clarify, modernize and improve several aspects of certain employment-based nonimmigrant and immigrant visa programs. Such efforts, while not fully comprehensive, will provide clarification to practitioners (by codifying existing USCIS adjudicative practices) while providing some long-awaited relief to those high-skilled workers born in the heavily backlogged countries (India and China) who are, often times, forced to make employment decisions contrary to their best interests for professional growth and development (e.g.; accepting positions with other employers) in order to preserve their U.S. immigration status under the current rigid, inflexible system. The new regulations are slated to go into effect on January 17, 2017.
Here are some of the highlights of the new regulation:
Clarify longstanding USCIS policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act (“AC21”) and the American Competitiveness and Workforce Improvement Act (“ACWIA”) related to certain foreign workers, which will, in turn, enhance USCIS’ consistency in adjudication: Specifically, the ability of the beneficiary of a labor certification that was filed more than 365 days prior to the end of the sixth year under section 106(a) of AC21 to seek a one (1) year H-1B extension beyond the sixth year. The rule also confirms the ability of the beneficiary of an approved I-140 petition to seek a three (3) year extension beyond the sixth year if the priority date has not become current under 104(c) of AC21.
Improve job portability for certain beneficiaries of approved Form I-140 petitions by maintaining an I-140 petition’s validity under certain circumstances despite an employer’s withdrawal of the approved I-140 petition or the termination of the employer’s business: Specifically, I-140 petitions which have been approved for more than 180 days (prior to withdrawal) will be (i) valid for purposes of seeking 3 year H-1B extensions beyond the sixth-year limitation under 104(c) of AC21 and (ii) valid for green card portability (including retention and porting of the priority date) even in the event the sponsoring employer withdraws the approved I-140 or goes out of business. However, revocation by USCIS for a finding of fraud, misrepresentation or material error will void the I-140 for portability.
Allow certain high-skilled workers in the United States in valid E-3, H-1B, H-1B1, L-1 or O-1 nonimmigrant status, including any applicable grace period, to apply for an employment authorization document (EAD) for “compelling circumstances”: The new regulation creates a new category of EAD available to certain high skilled workers (i) who are the principal beneficiaries of an approved Form I-140 petition; (ii) who are unable to adjust status because an immigrant visa is available based on their priority date, and (iii) who are able to demonstrate that “compelling circumstances” exist that justify DHS issuing an employment authorization document in its discretion. Such employment authorization may only be renewed in limited circumstances and only in one year increments.
Offer a Grace Period Post-Termination for those working pursuant to certain, qualifying nonimmigrant visa classifications (H-1B, H-1B1, E-1, E-2, E-3, L-1, O-1, TN-1): The new regulation establishes a grace period of up to 60 days following termination of employment before the end of their authorized period of stay. This will allow qualifying workers and their dependents time to (i) seek new employment (e.g.; seek an H-1B transfer); (ii) change status to another visa classification (e.g.; B-1 or B-2); or (iii) depart the United States if necessary. This, of course, allows high-skilled nonimmigrant workers and their families the opportunity to more readily pursue new employment and an extension of their nonimmigrant status.
H-1B licensing: The new regulation will provide flexibility in H-1B cases for professions requiring a license. For H-1B petitions where a license is a requirement to practice the profession, USCIS will look to see if a license application has been filed (and not necessarily obtained because a state or locality requires a social security number or the issuance of an EAD before accepting or approving such licensing requests). Also, the licensing requirement will be considered to be met for H-1B purposes if an unlicensed H-1B worker will be working in a state that allows individuals to work under the supervision of a licensed senior or supervisory personnel.
Automatic extension of employment authorization for certain classes of pending EAD renewals: The new regulation permits automatic and continued employment authorization (for up to 180 days) for certain classes of Employment Authorization Document (“EAD”) renewals when the renewal application is timely-filed and remains pending after the expiration of the current EAD. Importantly, this only applies to certain categories of EAD, e.g..; EADs for adjustment of status applicants, refugees and asylees while H-4, L-2 and similar EADs are not eligible.
If you have any questions about the new regulation or its potential effect on you or any of your employees, please do not hesitate to contact us. Please follow us on Twitter @ML_Immigration to stay tuned for further developments.