February 7, 2017
DHS Final Rule on Highly Skilled
Employment-Based Workers
The session will begin at 3:00 p.m. EST
February 7, 2017
DHS Final Rule on Highly Skilled
Employment-Based Workers
Moderator
David Fosnocht
Director, Immigration Practice Resources
NAFSA
Background
• Final Rule published at 81 Fed. Reg. 82398 (November 18, 2016), effective
January 17, 2017 - “Retention of EB-1, EB-2, and EB-3 Immigrant Workers
and Program Improvements Affecting High-Skilled Nonimmigrant Workers”
• Codifies USCIS’s interpretation of two laws: American Competitiveness in
the Twenty-First Century Act (AC21) (2000); and the American
Competitiveness and Workforce Improvement Act (ACWIA), (1998). Until
now, we have relied on language in AC21 and ACWIA and agency memos
that interpret these laws.
• Generally, clarifies USCIS policies and in some cases, allows for more
flexibility for highly-skilled workers
• Revises, eliminates, adds sections to Title 8 Code of Federal Regulations
• Still unknowns – wait and see how USCIS will interpret certain subjective
provisions
Resources
• New rule itself: 81 Federal Register 82398 (November 18, 2016)
• Preamble to the New Rule
• USCIS Fact Sheet, January 30, 2017 re: Automatic EAD Extensions
provided by this regulation:
https://www.uscis.gov/sites/default/files/USCIS/Verification/I9%20Central/FactSheets/Fact-Sheet-AutoExtendEAD.pdf
• NAFSA Adviser’s Manual 360
• University or outside counsel to assist in interpreting some of the new
provisions, especially those that include subjective language
• To submit questions for our presenters today, click the
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Presenters
Susan Ellison
Dartmouth College
Director, Office of Visa and Immigration Services
[email protected]
Dena Neese
Virginia Tech
Associate Director, International Support Services
[email protected]
David Muusz
University of Michigan
Assistant Director, International Center
[email protected]
Agenda – Review New Rule’s Impact On:
• H-1B Classification
• Grace periods for several nonimmigrant classifications
• EAD issuance
• Permanent Residency cases - priority dates and permanent residency
case portability
Due to limited time, we will focus only on sections of the new rule
that most impact institutions of higher education.
Impact of New Rule on H-1B Classification
• H-1B extensions beyond the 6th year, due to lengthy adjudication
delays –one and three year extensions (generally codifies AC21
sections 106(a) and 104(c) with some substantive changes)
• H-1B portability to new position or new employer – when may begin
work, and duration of employment eligibility, based on pending
portability petition
• H-1B approval as it relates to licensure requirements that the H-1B
worker may not possess, when initial H-1B filed
• Clarification on when recapture of H-1B time is allowed
• Clarification on qualifying for cap-exempt H-1Bs
One-Year H-1B Extensions Beyond 6th Year
• 8 CFR §214.2(h)(13)(iii)(D)
• Implements AC21 §106(a), which permits extensions in one-year increments beyond 6th year, if
365 days have elapsed since filing a labor certification with DoL or an I-140 with USCIS
• Clarifies that petitioner may file extensions before 365 days have elapsed, so long as at least 365
days will have elapsed since the filing of the labor cert or I-140 petition, before the requested
start date
• Confirms that H-1B employer filing extension need not be same employer who filed labor cert or
I-140
• Clarifies that you do not need to hold H-1B status at time of filing
• H-1B approvals under this section granted until either the approved labor cert expires, or a final
decision made to deny the labor cert (or revoke/invalidate it if approved); deny the immigrant
visa petition or if approved, revoke such approval; deny the immigrant visa/adjustment of status
application; or administratively close labor cert, immigrant visa or adjustment of status.
• Per new rule at 8 CFR § 205.1(a)(3)(iii), if I-140 employer withdraws aproved I-140, or goes out of business,
but this occurs 180 days or more after I-140 approved, or 180 days or more after associated I-485 was filed,
the I-140 will not be deemed revoked.
But Limitation on Who Qualifies for this OneYear Extension
• 8 CFR §214.2(h)(13)(iii)(D)(10)
• Ineligible for extension under this section if I-140 is approved and beneficiary
fails to file adjustment of status/apply for immigrant visa within one year of
immigrant visa availability (i.e., within one year of priority date being reached)
• If accrual of one-year interrupted by retrogression, new one-year period
allowed
• USCIS may excuse a failure to file in its discretion if alien establishes that
failure to apply was due to circumstances beyond his/her control
• Limitation applies to any approved I-140, including I-140 petitions
withdrawn by petitioner or filed by a petitioner whose business terminates
180 days or more after approval
Three-Year H-1B Extension Beyond
th
6
year
• 8 CFR §214.2(h)(13)(iii)(E)
• Implements AC21 §104(c), which permits H-1B extensions in up to 3-year
increments, if beneficiary has approved I-140 under EB1, EB2 or EB3
categories, but immigrant visa category is not current
• Clarifies H-1B petitioner need not be same employer who filed I-140
• Clarifies that this extension available to persons who are not currently in H1B status, and who are not currently in US, so long as requirements met
• Granted until final decision made to revoke I-140 approval if immigrant visa
category remains unavailable --- note that per new rule at 8 CFR §
205.1(a)(3)(iii), if I-140 employer withdraws I-140, or goes out of business,
but this occurs 180 days or more after I-140 approved, or 180 days or
more after associated I-485 was filed, the I-140 will not be deemed
revoked. Takeaway: extensions under this section would still be allowed!
Three-Year H-1B Extensions, cont’d
• USCIS will look to Visa Bulletin in effect at time the petition is filed to
determine availability of immigrant visa
• USCIS made clear in the regulation that this H-1B extension benefit
will only apply to the beneficiary of the I-140 (does not apply to the
beneficiary’s spouse, who may also be in H-1B status)
H-1B Ext beyond
th
6
year - Hypothetical
• Facts:
• Fiona is in H-1B status with Smart University. After four years of H-1B status, USCIS approved
her I-140. During that fourth year in H-1B status, her priority date became current and
remained so for over one year. During that time, Fiona did not file her I-485.
• Now she is almost to the end of her sixth year in H-1B status with Smart University. Her
priority date remains current.
• Questions:
• Can Smart University file a one-year H-1B extension for her beyond her 6th year of H-1B?
• What if the priority date retrogressed at the beginning of Fiona’s 5th year in H-1B status, but
became current again three months ago. Can she now qualify for the one-year H-1B
extension?
• What if, on the date Smart University wants to file the one-year H-1B extension beyond the
6th year, Fiona’s priority date was in fact retrogressed again?
• What if Fiona is subject to 212(e) (J-1 two yr home residency requirement) and therefore
cannot file her I-485, even though her priority date is current. Does this change things?
• Finally, let’s change the fact pattern . . . What if Fiona left Smart University for a position with
Best University AFTER her I-140 was approved for more than 180 days. Her priority date has
never been current. Smart University immediately filed a request with USCIS to withdraw her
I-140 petition after her departure. Does she qualify for a 3-year H-1B extension?
H-1B Portability - When New Employment May
Begin
• 8 CFR §214.2(h)(2)(i)(H)
• Clarifies that in a concurrent or change of employer scenario, the
beneficiary may start the concurrent or new employment upon the
filing of the H-1B petition, or on the start date requested in the new
petition, whichever is later
• Note that when porting from a cap-exempt to a cap-subject employer,
the employment cannot begin until October 1, regardless of whether
LCA covered a period of time prior to October 1.
H-1B Portability to New Employer or New Position May Work Until USCIS Adjudicates New Petition
• 8 CFR §214.2(h)(2)(i)(H) and 8 CFR §274(a).12(b)(9)
• Clarifies that if petitioner timely files an H-1B change of employer
petition/H-1B amendment, the 240 day receipt rule does not apply, and
beneficiary may work, based on the receipt notice, until USCIS adjudicates
the new petition
• Tip: Make sure your university’s I-9 team is aware of this rule – currently, it
may take more than 240 days for USCIS to adjudicate a change of employer
or amendment case, if not using premium processing
• Reminder: the new rule does not change the regulation at 8 CFR §
274a.12(b)(20) that allows for 240 days of employment authorization
beyond current status expiration date for H-1B extensions in same position
with same employer
H-1B Classification and Licensure
Requirements
• 8 CFR §214.2(h)(4)(v)(C)
• New rule clarifies when an H-1B petition may be approved
(sometimes for a limited timeframe), when the beneficiary does not
possess applicable licensure
• USCIS may approve H-1B petition for up to one year if state/local license
required, but not available due to lack of SSN or failure to meet similar
technical requirement
• Recognizes that some states permit non-licensed individuals to work under
supervision of licensed supervisor. Petitioner must include evidence of
identity, physical location, credentials of beneficiary’s supervisor and
evidence of compliance with state requirements.
Recapturing H-1B Time Outside the US
• 8 CFR 214.2(h)(13)(iii)(C)
• New rule clarifies that time spent physically outside the US exceeding
24 hours shall not be considered for purposes of calculating the
beneficiary’s total period of authorized H-1B admission
• Tip: may recapture this time in subsequent H-1B petitions, but it is
the petitioner’s burden to demonstrate time outside the US - the new
rule provides examples of evidence to submit
H-1B Cap Exemptions Clarified, Revised
• Clarifies that a move from cap-exempt to cap-subject employment cannot begin
until October 1 (8 CFR 214.2(h)(8)(ii)(F)(5))
• Concurrent employment – if cap-exempt H-1B employment ends then USCIS may
revoke cap subject petition – and cap-subject H-1B may only be approved until
date cap-exempt petition approved
(8 CFR 214.2(h)(8)(ii)(F)(6))
• Cap exemption based on nonprofit entity’s affiliation to an institution of higher
education updated, more relaxed language
(8 CFR 214.2(h)(8)(ii)(F)(2)(iv))
• Refines definition of what it means to be employed AT a cap-exempt employer,
and to benefit from a cap exemption (8 CFR 214.2(h)(8)(ii)(F)(4))
• Expands definition of cap-exempt government research organization to include
state and local (8 CFR 214.2(h)(19)(iv))
New 10-Day Grace Period, Before/After NIV
Validity Period
• 8 CFR §214.1(l)(1)
• New rule establishes a 10-day grace period for E1, E2, E3, H-1B, L-1, TN and
dependents (already available to Os and Ps)
• May be admitted for additional 10 days before validity period begins and 10 days
after validity period ends. May not work during this “grace period.”
• May apply for extension of stay or change of status while in this grace period, if
otherwise eligible
• At discretion of CBP officer to add 10 days onto I-94 admission period at Port of Entry
• At discretion of USCIS on Form I-797/I-94: In Preamble, DHS notes that: “USCIS does
not presently provide grace periods of up to 10 days before or after petition validity
approval when issuing Form I-797 or Form I-94 . . . DHS does not consider the 10 day
grace period to be automatically provided; rather, they are provided through an
exercise of discretion on a case by case basis. USCIS is revising Form I-797 to
facilitate consistent application of the discretionary 10-day grace period and will
continue to explore ways of notifying petitioners and beneficiaries when grace
periods are provided.”
New 60-Day Grace Period When Employment
Ends Early
• 8 CFR §214.1(l)(2)
• 60-day grace period for E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN and
dependents
• Shall not be considered to have failed to maintain NIV status on basis of ending
employment on which classification based, for up to 60 consecutive days or until
the end of the authorized validity period, whichever is shorter, one-time during
each authorized validity period
• DHS may eliminate or shorten this 60 day period as a matter of discretion
• May not work during this grace period
• May apply for extension of stay or change of status during this grace period, if
otherwise eligible
• Decision to grant grace period made at time the extension/change of status request
made
• Does this rule apply, if employee in a period of authorized stay, per an H-1B
extension, with no approval notice? Rule does not, on its face, support this – must
be in the validity period of the approved petition or stay (in the case of E1, E2, E-3
and TN)
Read 60-day grace period carefully!
• Very different from grace periods in the context of F/J status so do not
equivocate them
• Allows a grace period of “up to 60 day or until end of authorized
period, whichever is shorter”
• Allows for this grace period one-time during each authorized validity
period
• Discretionary – what will this mean, in practice?
• Preamble states: a shorter/no grace period may be allowed if there have
been status violations, fraud or national security concerns, unauthorized
employment during grace period, or criminal convictions, “among other
reasons.”
Grace Period Hypothetical #1
• Dr. King is in H-1B status as a postdoctoral associate at Smart
University.
• Her status through Smart University expires June 20, 2017.
• She now has an offer of employment for an Assistant Professor
position at Best University. Can Best University file an H-1B
portability/change of employer petition for Dr. King, given a
requested start date of:
• August 15, 2017?
• How about June 28, 2017?
Grace Period Hypothetical #2
• Dr. Morales is also in H-1B status in a postdoctoral associate position
at Smart University.
• His status expires October 30, 2017.
• He too has an offer of employment for an Assistant Professor position
at Best University, with a start date of August 15, 2017. Dr. Morales
wants to resign from his position at Smart University on June 20,
2017, and camp out at the US National Parks all summer, before his
position begins at Best University on August 15, 2017.
• Can Best University file an H-1B portability/change of employer
petition for Dr. Morales?
• If yes, can Best University file said petition after Dr. Morales resigns
on June 20, 2017?
EAD Issuance/Practices - Give and Take
• Removes the regulation that required USCIS to adjudicate EAD
applications within 90 days
• For certain EAD renewal applicants, in same category, automatic 180day EAD extension, while renewal application is pending
• Now those with I-140 approvals, who are retrogressed, plus family
members, may qualify for EAD, upon demonstrating “compelling
circumstances”
Elimination - 90 Day EAD Adjudication Rule
• Final rule eliminates prior rule at 8 CFR 274a.13(d) that required USCIS to adjudicate
applications for EAD within 90 days, or grant “interim employment authorization”
• The final rule’s preamble states: “The public will be able to rely on USCIS’s
announcements regarding Form I-765 processing, which will reflect USCIS’s up to date
assessment of its operational capabilities. Applicants also will continue to have redress
in case of adjudication delays by contacting USCIS.”
• See: https://www.uscis.gov/forms/tip-sheet-employment-authorization-applicationspending-more-75-days)
• Will USCIS allow earlier submission of I-765 now (i.e., 180 days vs. 120 days prior to
requested start date)?
• Takeaway: Consider impact on first-time OPT EAD applicants and first-time AOS EAD
applicants who have used up H-1B time and do not qualify for continued H-1B
extensions. Consider H4 and J-2 EAD extensions. Educate departments that regularly
hire persons in OPT status about possible delays in issuance of EAD (but aren’t they
already used to these delays)??
EAD Renewals – 180-Day Automatic Extensions
• 8 CFR §274a.13(d)
• Must be filed before expiration date of current EAD;
• Must be based on same employment authorization category as shown on face of
expiring EAD; and
• Must be in an employment authorization category that does not require adjudication of
an underlying application or petition before adjudication of the renewal application –
categories will be posted on USCIS website – and EAD categories listed in new USCIS
memo.
• Available for EAD renewals for adjustment applicants (does not also mean 180-day auto extension
for Advance Parole), TPS extensions and certain renewal EAD applications under VAWA
• Applies to Form I765 renewal applications pending on effective date of 1/17/17
• 180 day extension begins on date the current EAD expires
• USCIS now recommends filing EAD renewals 180 days from expiration date – they will
update their webpages to reflect this.
• NOTE: This new rule has no impact on the already-existing 180 day extension rule for
OPT STEM Extension EADs
New EAD Option– Approved I-140,
Retrogressed and Compelling Circumstances
• 8 CFR §204.5(p)
• New rule permits EAD in one year increments if:
•
•
•
•
In the US in valid E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status;
Principal beneficiary of an approved EB1, EB2 or EB3 I-140 petition;
Does not have an Immigrant Visa immediately available; and
Can demonstrate compelling circumstances that justify issuance of employment
authorization
• Family members are also eligible for this EAD and may concurrently apply, but
cannot be granted until principal’s EAD granted; validity period cannot exceed
that granted to principal
• Persons who have been convicted of any felony or two or more misdemeanors
are ineligible
• Preamble states that would generally lose nonimmigrant status, once use this
EAD to work
Renewals of Compelling Circumstances EAD
Allowed - Requirements
• If filed before expiration of current EAD;
• Must still show compelling circumstances; and
• Must have approved EB-1, EB-2 or EB-3 I-140 and either an immigrant
visa is not immediately available, OR the difference between the
priority date and the “current” date for principal beneficiary is one
year or less, according to the visa bulletin in effect when EAD filed
• Example in the rule itself: if Visa Bulletin in effect on date renewal application
filed indicates the beneficiary’s immigrant category is current for priority
dates 11/1/2000 and earlier, then USCIS may grant renewal to a principal
beneficiary whose priority date is on or between 10/31/1999 and
10/31/2001.
Status Considerations – take note!
• How does this new EAD category impact one’s status in the US? Remember, individuals
who obtain this EAD would not have a filed I-485. What is their “status” once they work
on a compelling circumstances EAD, and can they apply for I-485 later, if they have no
underlying nonimmigrant status?
• Preamble: DHS provides that to first apply for a compelling circumstances EAD, an individual must
be in a valid nonimmigrant status, but they “will generally lose that status once they engage in
employment pursuant to such an EAD”; also upon renewal, they need not be in a valid NIV status.
• Preamble: Such foreign national will no longer be maintaining nonimmigrant status, but will
generally not accrue unlawful presence during the validity period of the EAD. If an individual who
was employed under a compelling circumstances EAD leaves the US to apply for a nonimmigrant
or immigrant visa at a consular post abroad, the departure should not trigger unlawful presence in
admissibility grounds, according to Preamble: “USCIS intends to adjust its policy guidance to
confirm that holders of compelling circumstances EADs will be considered . . . in a period of stay
authorized by the Secretary for that purpose.”
• However, generally speaking, to file adjustment of status application, Form I-485, one must be in a
valid nonimmigrant status. Preamble states that an individual may need to consular process an
NIV and return to the US in NIV status before allowed to file an adjustment of status application.
“Once the individual has been lawfully admitted in nonimmigrant status, he or she may be eligible
to adjust status to lawful permanent residence, if otherwise eligible.”
• But, what NIV status will they request? What if they have run out of H-1B time?
What are “Compelling Circumstances”?
• In Preamble, updated list of illustrative circumstances that USCIS, in
its discretion, might find compelling for purposes of this section –
DHS emphasizes that the list is not exhaustive:
•
•
•
•
Serious Illnesses and Disabilities;
Employer Dispute or Retaliation;
Other substantial harm to the applicant; and
Significant disruption to the Employer
PR Processes: Priority Date Retention
• 8 CFR §204.5(e) clarifies when priority date can be retained
• Where I-140 petition is approved in any category under EB1, EB2 or EB3, beneficiary
may retain the earliest Priority Date in case of multiple approved petitions
• Beneficiary retains Priority Date even if employer later withdraws approved I-140, or
goes out of business, even if less than 180 days after approval (REMEMBER: Priority
Date Retention and I-140 Portability are two different things– see next slide)
• Circumstances where priority date is not retained:
• Petition denied
• Petition revoked for fraud, willful misrepresentation of material fact; revoked by DoL of
approved labor cert; invalidation by USCIS or DoS of labor cert or determination by USCIS that
petition approval was based on a material error
• Takeaway: Once I-140 approved, assuming petition not denied or revoked for the
reasons above, beneficiary can retain priority date, but may need to start the
permanent residency process (labor cert and or I-140) over again for the new offer of
employment, if PR portability rule at INA 204j is not met (see next slide)
Permanent Residency Portability
• INA 204(j) and new 8 CFR 245.25 allow applicants for adjustment of status
to change jobs or employers without having to start the permanent
residency process over, provided:
• The adjustment of status application (Form I-485) has been pending 180 days or
more
• The applicant is the beneficiary of an approved EB1, EB2, or EB3 I-140 petition, or if
the I-140 is still pending when the I-485 has been pending for more than 180 days,
USCIS approves the I-140 before adjudicating the I-485
• The applicant has a new job offer in the "same or a similar occupational
classification" as the job for which the qualifying Form I-140 petition was filed.
• If these conditions are met, the approved Form I-140 “shall remain valid with respect
to a new job if the individual changes jobs or employers, if the new job is in the same
or a similar occupational classification as the job for which the petition was filed,”
unless the I-140 has been revoked (see next bullet)
• The new rule at 8 CFR 205.1(a)(3)(iii)(C) provides that once the I-140 has
been approved for 180 days or more, or the associated I-485 has been
pending 180 days or more, the I-140 is still valid/not revoked, even if the I140 employer later withdraws it, or the I-140 business shuts down
A closer look at 8 CFR 205.1(a)(3)(iii)(C)
• Here is what the new rule establishes:
• EB I-140 petitions that have been approved for 180 days or more, or that have
an associated adjustment of status application that has been pending 180
days or more, will no longer be automatically revoked based upon a
withdrawal by the petitioner, or termination of petitioner’s business
• Of course, USCIS can still revoke the I-140 at any time, based on
fraud, material misrepresentation, invalidation of labor cert, or
material error
• Takeaway: The new rule increases mobility in the context of porting
between jobs; it allows more certainty when relying on a previouslysubmitted employment-based adjustment of status application to
obtain permanent residency
New I-485 Supplement J: Confirmation of Job
Offer
• 8 CFR 245.25(a)
• Used to confirm job offer that is the basis of immigrant visa classification sought
• If concurrently filing I-140/I-485, no need to affirmatively file Supplement J, although USICS may
request it at a later time
• If filing stand-alone Form I-485, must file Supplement J with I-485, to confirm bona fide job offer
• Must also file Supplement J in response to RFE or NOID from USCIS, even if one had already been
filed before
• Beneficiary may file Supplement J to request job portability to a new, permanent job offer under
INA section 204(j) (PR portability provision), plus documentation of new job offer that is in “the
same or a similar occupational classification” as I-140 position. May file affirmatively after I-485
pending 180 days or more, or may file in response to RFE or NOID from USCIS
• New Supplement J and instructions now on USCIS website
• Both beneficiary and current employer must complete/sign portions of the form
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