Long-Awaited High Skilled Worker Regulations Published by the Department of Homeland Security

In a welcome development, on November 18, 2016 the Department of Homeland Security (DHS) published a final rule benefitting many highly skilled nonimmigrant foreign workers and EB-1, EB-2, and EB-3 employment-based immigrant workers and their employers. The final rule will take effect on January 17, 2017, 60 days from the date of publication.

This rule adds 10-day grace periods to several temporary work visa categories, and formalizes a 60-day grace period to protect employees in temporary work visa status who suddenly find themselves out of a job, giving them time to file a new visa petition with another employer and not be deemed to be “out of status” immediately upon termination.

Among other things, the rule codifies policies surrounding cap-exempt H-1B employment; clarifies and liberalizes H-1B “recapture” time, clarifies when H-1B petitions seeking extensions beyond the 6th year of H-1B authorization may be filed, allows limited approval of certain H-1B visa petitions for positions requiring a license before the license has been issued, and codifies H-1B portability requirements.

The rule incorporates changes in “green card portability” that better equip U.S. employers to employ and retain highly skilled foreign workers who are the beneficiaries of employment-based immigrant visa petitions, enabling them to change positions with their current employer or accept a new position with a different employer, as long as the position is in a similar field to the one previously held.

The final rule codifies policy guidance issued by USCIS following enactment of the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) and the American Competitiveness in the Twenty-first Century Act of 2000 (AC21). The rule further implements the principles embodied in these laws by providing nonimmigrant workers who have been sponsored for permanent residence based on the filing of an I-140 immigrant visa petition greater flexibility and job portability, while strengthening the competitiveness of American employers, fueling the U.S. economy to allow for innovation and expansion and protecting American workers. Beyond codifying prior policy guidance, the final rule also improves many DHS policies and practices outlined in policy memoranda and precedent decisions of the Administrative Appeals Office.

Highlights of the new provisions and benefits outlined in the final rule include the following:

1. 10-day nonimmigrant grace periods. To promote stability and flexibility for certain high-skilled nonimmigrant workers, the final rule provides two grace periods of up to 10 days, consistent with those already available to individuals in H-1B and O-1 visa status, to individuals in the E-1, E-2, E-3, L-1, and TN classifications. The rule allows an initial grace period of up to 10 days prior to the start of an authorized validity period, which provides nonimmigrants in the above classifications a reasonable amount of time to enter the United States and prepare to begin employment in the country. The rule also allows a second grace period of up to 10 days after the end of an authorized validity period, which provides a reasonable amount of time for such nonimmigrants to depart the United States or take other actions to extend, change, or otherwise maintain lawful status.
2. 60-day nonimmigrant grace periods. To further enhance job portability, the final rule establishes a grace period of up to 60 consecutive days during each authorized validity period for individuals in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classifications. This grace period allows highly skilled workers in these classifications, including those whose employment ceases prior to the end of the petition validity period, to more readily pursue new employment should they be eligible for other employer-sponsored nonimmigrant classifications or employment in the same classification with a new employer, or should they wish to file to change their status to another type of visa status. The grace period also allows U.S. employers to more easily facilitate changes in employment for existing or newly recruited nonimmigrant workers.
3. Counting against the H-1B annual cap. The final rule clarifies the way in which H-1B nonimmigrant workers are counted against the annual H-1B numerical cap, including: (1) the method for calculating when these workers may access remainder time (i.e., time when they were physically outside the United States), allowing them to maximize their full period of H-1B admission; and (2) the method for determining which H-1B nonimmigrant workers are “cap-exempt” as a result of previously being counted against the cap.
4. H-1B portability. The final rule addresses the ability of H-1B nonimmigrant workers to change jobs or employers, including: (1) commencing employment with new H-1B employers upon the filing of non-frivolous petitions for new H-1B employment (“H-1B portability petition”); and (2) allowing H-1B employers to file successive H-1B portability petitions (often referred to as “bridge petitions”) and clarifying how these petitions affect lawful status and work authorization.
5. H-1B cap exemptions. The final rule clarifies and improves the method for determining which H-1B nonimmigrant workers are exempt from the H-1B numerical cap due to their employment at an institution of higher education, a nonprofit entity related to or affiliated with such an institution, or a governmental or nonprofit research organization, including a revision to the definition of the term “related or affiliated nonprofit entity.”
6. Protections for H-1B whistleblowers. The final rule addresses the ability of H-1B nonimmigrant workers who provide information in aid of, or otherwise assist with, investigations regarding alleged violations of Labor Condition Application (LCA) obligations in the H-1B program to provide documentary evidence to USCIS to demonstrate that their resulting failure to maintain H-1B status was due to “extraordinary circumstances.”
7. H-1B licensing. To provide clarity and certainty to the regulated community, the final regulations codify current DHS policy regarding exceptions to the requirement that makes the approval of an H-1B petition contingent upon the beneficiary’s licensure where licensure is required to fully perform the duties of the relevant specialty occupation. The final rule generally allows for the temporary approval of an H-1B petition for an otherwise eligible unlicensed worker, if the petitioner can demonstrate that the beneficiary of the visa petition is unable for certain technical reasons to obtain the required license before obtaining H-1B status. The final rule also clarifies the types of evidence that would need to be submitted to support approval of an H-1B petition on behalf of an unlicensed worker who will work in a state that allows the individual to be employed in the relevant occupation under the supervision of licensed senior or supervisory personnel.
8. H-1B extensions of stay under AC21. The final rule addresses the ability of H-1B nonimmigrant workers who are being sponsored for LPR status (and their dependents in H-4 nonimmigrant status) to extend their nonimmigrant stay beyond the otherwise applicable 6-year limit pursuant to AC21.
9. Green Card portability. The final rule addresses the ability of certain workers who have pending applications for adjustment of status to change employers or jobs without endangering the approved Form I-140 petitions filed on their behalf.
10. Form I-140 petition validity. The final rule clarifies the circumstances under which an approved Immigrant Petition for Alien Worker (Form I-140 petition) remains valid, even after the petitioner withdraws the petition or the petitioner’s business terminates, including for purposes of status extension applications filed on behalf of the beneficiary, job portability of H-1B nonimmigrants, and job portability under section 204(j) of the Immigration and Nationality Act (INA).
11. Establishment of priority dates. To enhance clarity for the regulated community, the final rule provides that a priority date is generally established based upon the filing of certain applications or petitions. The new regulatory language is consistent with existing DHS practice in establishing priority dates for other Form I-140 petitions that do not require permanent labor certifications (labor certifications)—such as petitions filed under the employment-based first preference immigrant visa (EB-1) category.
12. Retention of priority dates. To enhance job portability for workers with approved Form I-140 petitions, the final rule explains the circumstances under which workers may retain priority dates and effectively transfer those dates to new and subsequently approved Form I-140 petitions. Priority date retention will generally be available as long as the approval of the initial Form I-140 petition was not revoked for fraud, willful misrepresentation of a material fact, the invalidation or revocation of a labor certification, or material error. This provision improves the ability of certain workers to accept promotions, change employers, or pursue other employment opportunities without fear of losing their place in line for immigrant visas.
13. Retention of employment-based immigrant visa petitions. To enhance job portability for certain workers with approved Form I-140 petitions in the first preference (EB-1), second preference (EB-2), and third preference (EB-3) categories, but who are unable to obtain LPR status due to immigrant visa backlogs, the final rule provides that Form I-140 petitions that have been approved for 180 days or more would no longer be subject to automatic revocation based solely on withdrawal by the petitioner or the termination of the petitioner’s business.
14. Eligibility for employment authorization in compelling circumstances. To enhance stability and job flexibility for certain high-skilled nonimmigrant workers in the United States with approved Form I-140 petitions who cannot obtain an immigrant visa due to statutory limits on the number of immigrant visas that may be issued, the final rule allows certain beneficiaries in the United States in E-3, H- 1B, H-1B1, L-1, or O-1 nonimmigrant status to apply for separate employment authorization for a limited period if there are compelling circumstances that, in the discretion of DHS, justify the issuance of employment authorization.
15. Adjudication of EADs: The final rule clarifies that USCIS will no longer be bound to adjudicate Employment Authorization Document (“EAD”) applications within 90 days. To compensate for this, and as indicated in a USCIS response to a commenter on the rule, USCIS may permit renewal filings up to 180 days before the expiration of the EAD, rather than the current 120 day policy. USCIS indicates it will update filing time periods for renewal applications on its website. Importantly, USCIS will grant an automatic EAD extension of up to 180 days based on a timely filed, pending EAD renewal under the same eligibility category.
16. Form I-485 Supplement J: In order to continue receiving eligibility for adjustment of status based on an existing or new job offer under INA 204(j), the worker will be required to file a Form I-485 Supplement J and submit evidence regarding the new job offer for continued AOS eligibility if requested by USCIS, or alternatively may proactively provide USCIS with this information.

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