USCIS Final Rule: Highlights For Employers

Maggio Kattar

USCIS Final Rule Provides Improved Job Mobility, Program Flexibility and Important Clarification to Certain Work Visa Categories

USCIS has recently announced amendments to certain regulations to improve U.S. employers’ ability to recruit and retain certain foreign workers. The Final Rule will take effect on January 17, 2017. The information below will discuss each of these important changes.Impact of USCIS Final Rule on nonimmigrant visas for highly skilled workers

Pre and Post-Employment or Visa Validity Grace Periods to Enter/Remain in the U.S.

Grace Periods Added:

Before Employment Begins: H-1B and O-1 visa holders have had the ability to obtain a visa ten days before the initial employment start date to allow them to enter the US before work.  This Final Rule adds this 10-day grace period to individuals in E-1, E-2, E-3, L-1, TN classifications.  

After The Visa Validity Ends: Adds a 10-day grace period at the end of the authorized visa validity period for the above classifications, which provides workers time to leave the country or apply for extension or change of position.

IMPORTANT NOTE:  There is no work authorization during these grace periods.

NEW 60-day grace period-post employment:

This provision provides a discretionary grace period of up to 60 consecutive days, or until the end of the relevant authorized validity period (whichever is shorter) ,for the foreign national to remain in the U.S.  Although the maximum 60-day grace period is discretionary, it will provide  highly skilled workers the opportunity to find other employment or change status if their employment ends  prior to the end of the petition validity period.  Key details of this grace period are:

  • Available for H-1B, O-1, E-1, E-2, E-3, L-1, TN classifications.
  • The 60 days must be consecutive. 
  • Employment is not permitted during the grace period but the foreign national may apply for an extension or change of status and benefit from portability (H-1B’s).
  • Must request grace period when filing change of employer petition or change of status application.  

H-1B Visa Portability: Skilled Professionals Changing Employers

The H-1B portability provision defined in the Final Rule effective January 17, 2017 clarifies DHS regulations consistent with prior policy guidelines. The Final Rule:

  • Allows an H-1B worker to commence employment with new H-1B employer as soon as the new petition is filed as long as the following criteria are met:
    1. The petition is non–frivolous petition,
    2. The H-1B worker was lawfully admitted,
    3. The H-1B worker has not previously worked without authorization and,
    4.  Is currently in authorized period of stay in H-1B status.
  • Allows H-1B employers to file successive H-1B portability petitions. For example: A foreign national working for a second employer based on portability may be able to switch to third employer if certain conditions met.
  • Provides that the denial of a successive portability petition does not affect ability of the H-1B worker to continue or resume working on a previously approved petition if the petition remains valid and the beneficiary has maintained status or has been in period of authorized stay.

Calculating Maximum H-1B Admission Period (Time)

The Final Rule effective January 17, 2017 clarifies method for “recapturing” time if beneficiary has previously been counted against the cap. Key provisions include:

  • Time spent outside the U.S. exceeding 24 hours or more spent outside the US shall not count toward H-1B time of admission regardless of whether such  time meaningfully interrupts the H-1B worker’s stay in H-1B Status and the reason for his or her absence. This time may be recaptured for subsequent H-1B admission.
  • Confirms petitioner’s burden to present evidence of time outside of U.S.,  and based on evidence provided USCIS may grant all, part or none of time requested.
  • If an H-1B worker was previously counted against the H-1B numerical cap and has been outside the U.S. for more than a year, the petitioner may choose to recapture time, if available, via an H-1B petition.

H-1B Cap Exempt Employer…Clarified Finally

Under the Final Rule, many employers who would have otherwise been subject to the H-1B cap will now be able qualify for cap exemption. The most significant change relates to non-profit organizations which are affiliated with universities. Before, USCIS required an affiliation based on shared ownership or control by the same board or Federation.  Where the non-profit organization was attached to a university, USCIS required that the non-profit be a member, branch, cooperative or subsidiary.  Now, cap-exemption may be approved in cases where the non-profit entity has entered into a formal written affiliation agreement with an institution of higher education that establishes an active working relationship between the “non-profit entity and the institution of higher education for the purposes of research or education, and a fundamental activity of the nonprofit entity is to directly contribute to the research or education mission of the institution of higher education.”

Whistleblowers Protection for H-1B workers

The Final Rule allows workers who are fired for reporting on employers to make the argument for “extraordinary circumstances” for failure to maintain status and change employers or status without having the first leave the U.S.

Clarification of  H-1B licensing regulations

The Final Rule provides options in cases where a state requires licensure for a job, however licensure cannot be obtained by an otherwise fully qualified H-1B worker before they begin work in the U.S. and therefore, their failure to possess a license is simply due to their immigration status and not for substantive reasons. (For example, licensure requires a social security number, and the H-1B worker cannot provide this until they have been admitted in H-1B status.  In such cases, this provision may allow temporary approval of an H-1B visa for otherwise qualified workers that are valid for one year as long as the H-1B worker has filed an application for the license.

Clarification Provided on AC-21 H-1B Extensions Beyond Six-Year Limit

The Final Rule provides clarification on several issues related to AC-21, one-year and three-year H-1B extensions.  Some of the most important include:

  • One-year extensions will now be available to beneficiaries who are not in the U.S.
  • One-year extensions will be allowed when the petitioning employer is not the employer that filed the labor certification or I-140 petition serving as the basis for the one-year extension which allows the employee greater job mobility during the green card process.
  • Critically, the Final Rule establishes a requirement that H-1B extensions beyond the six-year limitation will not be granted if the beneficiary does not file for adjustment of status or apply for an immigrant visa (Consular Processing) within one year of the immigrant visa becoming available. The immigrant visa becomes available when the relevant priority date becomes current according to the final action date in the Visa Bulletin.  Should the immigrant visa numbers retrogress during the one-year tolling period, a new one-year period will begin once an immigrant visa becomes available again.

Impact Of USCIS Final Rule on Immigrant Visa (Green Card) Provisions

Green Card Portability

The Final Rule confirms the ability of an I-485 adjustment of status applicant, who is also the beneficiary of an approved I-140 petition to port the I-485 to the same or similar job at another employer so long at the I-485 has been pending for 180 days or more. However, for the first time, USCIS is requiring, under the Final Rule, that porting I-485 applicants complete Form I-485SJ (Supplement J) with required supporting documentation to demonstrate the new employment meets portability requirements.  At this time, it is not entirely clear when the Supplement J must be filed – we await further guidance from USCIS on this issue.  The new rule clarifies that an I-485 applicant may port even before the I-140 has been approved, but USCIS confirms that approval of the I-140 will be required in order for the I-485 to be approved.  Supplement J will not be adjudicated before the I-140 has been approved.  The Final Rule also provides guidance regarding the definition of “same or similar occupation”.

Preserving I-140 petitions

The 180-Day Rule

Foreign national workers who are beneficiaries of an employer’s petition on their behalf for an employment based green card (Form I-140 Immigrant Petition for Alien Worker)  may be subject to automatic revocation of their green card application in the event it is withdrawn by the employer, or the employer’s business ends. 

However, the Final Rule clarifies that the foreign national is not subject to automatic revocation if the Form I-140 filed on the foreign national’s behalf  (EB-1, EB-2 or EB-3), if the I-140 has been approved for at least 180 days.  In addition, automatic revocation does not occur when the I-140 remains unadjudicated, provided that the beneficiary’s I-485 has been pending for more than 180 days. 

Compelling Circumstances EAD

Foreign national  workers with approved I-140 petitions whose priority dates aren’t current and hold E-3, H-1B, H-1B1, L-1 or O-1 non-immigrant status can apply for separate employment authorization for a limited period under “compelling circumstances” at the discretion of DHS.  The Final Rule does not define what would constitute “compelling circumstances” but simply states: USCIS determines, as a matter of discretion, that the principal beneficiary demonstrate compelling circumstances that justify the issuance of employment authorization. In the preamble to the Final Rule, DHS does, however, provide examples of what may constitute compelling circumstances, such as, serious illness /disability, other substantial harm and significant disruptions to the employer. 

The application for an EAD can filed at any time before the expiration of the relevant non-immigrant status. EADs granted under this provision will be limited to one year and the worker will need to continue to provide evidence of compelling circumstances to renew the EAD.

Changes in EAD Processing and Extensions

The Final Rule provides some very important changes and benefits to the EAD process.  Some of the most important provisions include:

  • Instead of the current 120-day window, workers can apply for an EAD renewal up to 180 days before expiration.
  • The Final Rule will grant an automatic extension of the validity of expiring EADs for up to 180 days if the extension of the EAD is timely filed as long as:
    • the EAD renewal is filed on the same basis as the previous EAD; or,
    • the worker (dependent spouses, such as H-4s and L-2s are excluded ) is renewing the EAD on a basis which does not first require adjudication of an underlying application or petition. (For example: and adjustment of status applicant, asylee or refugee.) 
  • USCIS issued new guidance on February 1 , 2017 that eligible EAD renewal applicants that are still pending may be eligible for the 180-day extension, even if that application was filed before January 17, 2017.