A Guide to DHS’ New Regulation Affecting High-Skilled Foreign National Workers
Introduction and Overview:
On November 18,2016, the United States Department of Homeland Security (DHS) published a final rule that will become effective on January 17, 2017. This final rule is called Retention of EB1, EB2, and EB3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers which codifies USCIS’ interpretations of the American Competitiveness in the Twenty-First Century Act (AC21) and the American Competitiveness and Workforce Improvement Act. The rule is intended to enhance the ability of U.S. employers to hire and retain high-skilled foreign workers and to encourage beneficiaries to pursue new employment opportunities. The projected effects of the regulation are increased stability and greater employment flexibility during the employment-based immigration process.
Though the rule primarily focuses on promoting job mobility for employment-based immigrants, it also benefits nonimmigrant workers. The rule establishes grace periods for nonimmigrant workers before and after their employment. The rule also provides work authorization extensions to adjustment of status (AOS) applicants and other classes of foreign nationals who have timely filed for renewal of an Employment Authorization Document (EAD). In addition, the rule also helps U.S. businesses in retaining and developing highly-skilled foreign workers while reducing the burdens of lengthy immigrant visa backlogs on employment-based adjustment applicants. The rule’s key provisions are discussed as follows.
The Rule’s Impact on I-140 Beneficiaries:
The new rule primarily affects portability and priority date retention for I-140 Immigrant Petition for Alien Workers beneficiaries. The rule allows the beneficiary of an approved I-140 petition to retain his priority date and use the priority date for a subsequent I-140 petition unless the petition is revoked due to fraud, willful misrepresentation, and material error by the USCIS, or the invalidation or revocation of the underlying labor certification.
This means that a foreign national whose I-140 petition has been approved for at least 180 days will not have their petition automatically revoked if the employer goes out of business or withdraws their petition. The foreign national will need to find a new job offer or submit a new I-140 petition to obtain employment-based immigrant status. Also, in accordance with current USCIS policy, the beneficiary of a pending I-140 will be able to change (“port”) employment after his or her adjustment of status application has been pending for at least 180 days if the pending I-140 petition was approvable when filed and remained approvable for at least 180 days following the filing of the adjustment application.
The Rule’s Impacts Related to Employment Authorization:
The new rule brings added relief to foreign nationals (under E-3, H-1B, L-1, and O-1 status) attempting to obtain employment authorization. The rule provides that (1) if a beneficiary’s priority date is backlogged and (2) they can show compelling circumstances, beneficiaries with approved I-140 petitions may apply for a one-year employment authorization document.
The new rule also offers an automatic 180-day work authorization extension to foreign nationals who timely filed for an EAD renewal. These foreign nationals include adjustment applicants, applicants for extension of Temporary Protected Status, and certain applicants under the Violence Against Women Act. However, automatic extension won’t be available to nonimmigrant spouses with H-4, L-2 or E status. The effect of this provision is to minimize the negative impacts of EAD processing delays on a foreign national’s continued eligibility to work in America. The rule officially eliminates a previous rule that required USCIS to process EAD applications within 90 days and grant interim work authorization to those with an EAD application pending for more than 90 days and dismantles USCIS’ previous policy of prohibiting renewal applications from being filed more than 120 days before EAD expiration.
New Regulations’ Impact on Nonimmigrant Workers:
The rule will officially provide a grace period for nonimmigrant workers who are on E, H-1B, H-1B1, L-1, O-1, and TN nonimmigrant visas. Nonimmigrants with one of these statuses, whose employment is terminated early will be given a grace period for a maximum of 60 days during each validity period. This grace period will allow them to extend, change, or otherwise maintain status; this includes H-1B visa holders who port to new employment.
Nonimmigrants who are approved for E, L-1, and TN visas will receive a 10-day grace period before and after their validity period, as is currently available to H-1B nonimmigrants. This will allow them to enter the US 10 days before their employment start date while allowing E, L-1, and TN visa holders to take up to 10 days at the end of their period of stay to take action to extend, change or otherwise maintain status, or prepare for departure from America.
The new rule also codifies USCIS’ longstanding policies on H-1B extensions beyond the sixth year. The rule will allow a one-year long extension for foreign nationals who are not currently in H-1B status as long as they previously held the status and remain eligible for an additional period of H-1B admission. However, an H-1B nonimmigrant will become ineligible for an extension if he or she fails to apply for adjustment of status or an immigrant visa within one year of the date an immigrant visa becomes available. If the foreign national’s labor certification is no longer valid at the time the extension is filed, this one-year H-1B extension won’t be available. It will also not be available if his or her I-140 has been denied or revoked or if an adjustment application or an immigrant visa has been approved or denied. Lastly, an H-1B beneficiary whose approved I-140 petition was withdrawn at least 180 days after approval will remain eligible for a three-year extension as long as the I-140 was not withdrawn for fraud, misrepresentation, material USCIS error, or revocation or invalidation of the underlying labor certification.
Interim EADS and Automatic Extensions
According to DHS’s final rule, automatic extensions of EADs of 180 days are provided for individuals who (1) file a request for the renewal of their EAD prior to its expiration date or during the filing period described in the country-specific Federal Register notice concerning procedures for obtaining TPS-related EADs; (2) request a renewal based on the same employment authorization category under which the expiring EAD was granted (as indicated on the face of the EAD), or on the approval for TPS even if the expiring EAD was issued under 8 CFR 274 a.12(c) and (3) either continue to be employment authorized incident to status beyond the expiration of the EAD or are applying for renewal under a category that does not first require the adjudication of an underlying benefit request. DHS determined that 15 employment categories meet these conditions:
1) Aliens admitted as refugees (see 8 CFR 274a.12(a)(3))
2) Aliens granted asylum (see 8 CFR 274a.12(a)(5))
5) Aliens admitted to the United States as citizens of the Federated States of Micronesia, the Marshall Islands, or Palau under agreements between the United States and those nations (see 8 CFR 274a.12(a)(8))
6) Aliens granted withholding of deportation or removal (see 8 CFR 274a.12(a)(10))
7) Aliens granted Temporary Protected Status (TPS) (regardless of the employment authorization category on their current EADs) (see 8 CFR 274a.12(a)(12) and (c)(19)); aliens who have properly filed applications for TPS and who have been deemed prima facie eligible for TPS under 8 CFR 244.10(a) and have received an EAD as a “temporary treatment benefit” under 8 CFR 244.10(e) and 274a.12(c)(19)
8) Aliens who have properly filed applications for asylum or withholding of deportation or removal (see 8 CFR 274a.12(c)(8)
10) Aliens who have filed applications for suspension of deportation under section 244 of the INA (as it existed prior to April 1, 1997), cancellation of removal under section 240A of the INA, or special rule cancellation of removal under section 309(f)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (see 8 CFR 274a.12(c)(10))
11) Aliens who have filed applications for creation of record of lawful admission for permanent residence (see 8 CFR 274a.12(c)(16))
14) Aliens who have filed applications for adjustment of status pursuant to section 1104 of the LIFE Act (see 8 CFR 274a.12(c)(24))
15) Aliens who are the principal beneficiaries or qualified children of approved VAWA self-petitioners, under the employment authorization category “(c)(31)” in the form instructions to the Application for Employment Authorization (Form I-765)
Individuals who may have possible gaps in employment authorization who are not included in the above list are encouraged to contact the National Customer Service Center to request priority processing of their application if their application has been pending for 75 days or more. In order to further ensure against gaps in employment authorization for renewal applicants, the DHS is also modifying its 120 day advance filing policy and will accept Forms I-765 that are filed up to 180 days in advance of the EAD expiration date except where impracticable.
Contact the National Customer Service Center at 1 (800) 375-5283 or see USCIS’s website for additional contact information at https://www.uscis.gov/about-us/contact-us/national-customer-service-center.
Implementation and Trump Presidency’s Impact on the Regulation:
DHS’s final rule, Retention of EB1, EB2, and EB3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, is scheduled to go into effect on January 17, 2017, three days before President-elect Donald Trump’s inauguration. Despite the Trump administration’s posture on immigration, their proposals must still undergo a lengthy formal rule-making process involving the United States Congress and potentially the United States Supreme Court. As we all proceed through 2017, International Legal and Business Services Group, LLP will continue to monitor any executive or legislative efforts to change or block the implementation of DHS’s recent final rule. Due to the complexity of DHS’s final rule, please contact International Legal and Business Services Group, LLP at (847) 995-1515 for guidance on how this new rule impacts you, employers or employees specifically.