United States Citizenship and Immigration Services (USCIS) has recently announced amendments to certain regulations to improve US employers’ ability to recruit and retain high-skilled personnel who have been granted employment-based immigrant visas and are waiting to become lawful permanent residents.
The rule effectively improves the job mobility process for those workers by allowing them to accept promotions, change employers, change positions with current employers, and pursue other employment opportunities.
The Final Rule will take effect on 17 January 2017. Below is a summary of several key components of the new rule.
New Grace Periods
Note that there is no work authorisation during these grace periods.
H-1B Visa Portability: Skilled Professionals Changing Employers
The H-1B portability provision defined in the Final Rule clarifies Department for Homeland Security (DHS) regulations consistent with prior policy guidelines.
The Final Rule:
Calculating Maximum H-1B Admission Period
The Final Rule clarifies method for “recapturing” time if the beneficiary has previously been counted against the cap. Key provisions include:
H-1B Cap Exempt Employer Rules
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 organisations 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 organisation 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 non-profit 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 to change status, without having to first leave the US.
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 US and therefore, their failure to possess a licence is simply due to their immigration status and not for substantive reasons.
For example, licensure may require 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 is valid for one year as long as the H-1B worker has filed an application for the licence.
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.
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 as 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 of the Form I-140 submitted 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.
Employment Authorisation for Compelling Circumstances
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 authorisation 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 authorisation.”
In the preamble to the Final Rule, DHS does, however, provide examples of what may constitute compelling circumstances, such as, serious illness or disability, other substantial harm and significant disruptions to the employer.
The application for an Employment Authorisation Document (EAD) can be submitted 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: