The Department of Homeland Security and US Citizenship and Immigration Services have published its long-awaited final skilled worker regulation that makes major changes to the H-1B program, I-140 green card applications and employment authorization documents. The regulation is 366 pages which is about twice the length of the proposed regulation. However, the regulation is largely unchanged from the proposed rule and the increased page length is due to the inclusion of extensive discussions of the public’s comments. In its summary, USCIS notes it is providing the following new benefits:
- streamlining the process for US employers to workers for green cards,
- increase job portability and provide greater stability and job flexibility for such workers, and
- increased transparency and consistency in the application of agency policy.
The rule covers the following subjects:
- H-1B extensions beyond six years under AC21
- INA 204(j) portability allowing certain workers with pending adjustment of status applications to change employers
- H-1B portability allowing workers to begin employment with a new employer upon the filing of a new H-1B petition
- Counting workers against the H-1B cap including clarifying when time spent abroad counts against H-1B time and determining which workers are “cap-exempt” as a result of previously being counted against the cap
- H-1B cap exemption determinations for employers
- Protections for H-1B whistleblowers
- Survival of an I-140 petition when an employer attempts to revoke it
- The establishment of priority dates in green card cases
- Retention of priority dates when workers change employers or accepts promotions
- Eligibility for employment authorization for backlogged employment-based green card applicants with “compelling circumstances”
- Extension of the H-1B’s ten day before and after grace periods to E-1, E-2, E-3, L-1 and TN classifications
- Creation of new 60 day grace periods for workers who stop working prior to the end of a non-immigrant validity period (applicable to E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classifications)
- H-1B licensing requirements
- Automatic extension of EAD validity for 180 days for certain work card categories with pending I485. Renewal applicants must continue to be employment authorized incident to status beyond the expiration of the EAD or be applying for renewal under a category that does not first require adjudication of an underlying benefit application, petition, or request.
- The end of the 90 day adjudication requirement for EADs
There are several important changes to the rule from the proposal published in early 2016. The following are the major ones:
- Retaining a priority date. The proposed rule said an error in adjudicating an I-140 can lead to the loss of an I-140. The final rule clarifies that the error must be “material”.
- Eligibility for employment authorization in compelling circumstances. – I140 Approved with no I485.
- The final rule clarifies that EADs may be requested during the 10 day grace periods before and after a non-immigrant classification validity period.
- Renewals of EADs may be sought up to 180 days before the expiration of an EAD if the renewal is based on the same employment authorization category the renewal application is timely filed and the application still demonstrates compelling circumstances OR the applicant’ priority date is one year or less from the Final Action date in the Visa Bulletin in effect on the date the EAD application is filed (compelling circumstances need not be shown in this case).
- Family extension applications may be filed concurrently with renewal applications filed by the principal or afterwards, but may not be approved before the principal’s application is approved.
- Automatic revocation. Clarifies that a Form I-140 will remain approved if a request to withdraw is received or the petitioner terminates its business 180 days or more after either the date of the petition’s approval or the date of filing an associated application for adjustment of status.
- Period of stay. The proposed rule’s expansion of the 10 day period of stay before and after a non-immigrant validity period from the H-1B to other NIV categories originally indicated that the purpose of the period of stay was to prepare for departure or to seek an extension or change of status based on a subsequent offer of employment. This language has been removed as it was deemed to be “unnecessarily limiting”. Also, with respect to the new 60 day grace period to continue in an NIV status if employment terminates early, O-1 classifications are now included. Also, the 60 day grace period will have to be used in a single period of consecutive days and cannot be broken up. But an individual can be provided other grace periods if she receives a new authorized validity period in one of the eligible categories.
- Duties without licensure. DHS is expanding the evidence USCIS will examine in cases where a state allows an individual without licensure to fully practice in the occupation under the supervision of licensed senior or supervisory personnel to include “evidence that the petitioner is complying with state requirements.” DHS is also expanding the language regarding how one can demonstrate that a license may not be issued because of the failure to possess a work status and not for substantive reasons.
- Definitions of non-profit entities related to or affiliated with an institution of higher education and governmental research organizations.
DHS is replacing the term “primary purpose” with “fundamental activity” with respect to evaluating the affiliation between a non-profit organization and an institution of higher education or non-profit research institution. And if a formal affiliation agreement is the basis for the claimed exemption, the entity need not show an absence of shared ownership or control. The definition of “governmental research organization” is being expanded to include state and local governmental research entities.
- Calculating the maximum H-1B admission period. DHS now stating that there is no time limit on recapturing time spent outside the US. The time may be recaptured at any time before the worker uses the full period of authorized H-1B admission.
- Lengthy adjudication delay exemption from section 214(g)(4) of the INA. Regarding getting one year extensions beyond the six year H-1B limit, the language is being changed to make it possible to base the requirement of a labor certification or I-140 being pending for 365 days to apply to the day the exemption would take effect and not the day the application is filed.
- Per country and worldwide limits. For the AC21 allowing three year H-1B extensions for people in backlogged green card categories, clarifies that backlog only need exist at time extension filed and not at time H-1B adjudicated.
- Validity of petition for continued eligibility for adjustment of status. USCIS now calling the new form to be required to claim adjustment portability the Form I-485 Supplement J. The types of evidence that can be submitted to claim adjustment portability and the list of evidence included in the proposed rule is being deleted. A Form I-140 must be approved before a portability request may be submitted. Also, a new provision is being added to say that a pending qualifying I-140 may be approved if 1) the petitioner established the ability to pay at the time of filing and 2) all other eligibility criteria are met at the time of filing and until the beneficiary’s application for adjustment has been pending for 180 days.
Steven (Sheetal) Markan, Immigration Attorney
Markan Law LLC
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