The U. S. Department of Homeland Security (“DHS”) has published in the Federal Register a Final Rule (Federal Register, Volume 81, No. 223, Pages 82398 to 82492) titled “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Non-Immigrant Workers.” The rule takes effect on January 17, 2017 and it amends DHS Federal Regulations contained at 8 Code of Federal Regulations (CFR) Parts 204, 205, 214, 245 and 274a. This Rule came out of President’s Obama November 20, 2014 Executive Order, aimed at modernizing and streamlining the employment-based immigration system.
HIGHLIGHTS OF THE RULE
Although, there are no major substantive changes under this Rule, it does codify certain long standing USCIS policies and practices that were until now largely driven by USCIS Policy Memoranda – and these changes should provide clarity in certain adjudications and as such assist positively, those who are delayed in the employment based processes.
In our summary below, GLF will first focus on changes that are most beneficial. Also, this Newsletter does not address certain aspects of the Rule (such as H-1B recapture of time spent outside US, 106a and 104c H-1B extensions, H-1B cap exempt petitions etc.), as they are either codifications of long established practices or our practice does not cover those areas.
I-140 Priority Date Retention
Until now there was ambiguity whether the Priority Date (PD) could be retained, particularly when the I-140 was withdrawn by the Petitioning Employer – the regulations did not seem to allow PD retention while the Adjudicator’s Field Manual (AFM) did. Under the New Rule, I-140 petitions which have been approved for more than 180 days will be valid for H-1B extensions beyond the six year limit and also valid for portability (retention and porting of PD to a new employer’s I-140) even when the petitioning employer withdraws the approved I-140 – so, withdrawal by an employer after 180 days does not lead to revocation and the Priority Date is retained as to future I-140 filings and also for H-1B portability. Withdrawal by USCIS for fraud, misrepresentation or material error however voids portability. This feature of the Rule, provides much needed clarity for Beneficiaries of I-140 petitions wishing to change employers, after their I-140 has been approved for 180 days.
I-485 EAD Extension – Continued Work Authorization for 180 Days
Until now those applying only for STEM EAD extensions could continue working upon timely EAD extension filing for up to 180 days. Under this Rule, the good news is that certain EADs (those that are not dependent on approval of an underlying application such as H-4 or L-2 Extension or Change of Status) will receive continued work authorization for up to 180 days – i.e., I-485 EADs. This provision applies to certain other EAD types also, but our practice does not receive those kinds of cases.
Now the bad news! USCIS is removing current requirement to adjudicate EADs within 90 days — “to address national security and fraud concerns.” Interim EADs are also being eliminated – although as a practical matter they were not being granted liberally anyways. The Rule states that they intend to continue to adhere to 90-day EAD processing timelines but there are no mechanisms for relief (such as requesting expedite after 60/75 days under the current practice) – especially when EAD remains pending for more than 180 days or for H-4 and L-2 EADs who do not have automatic EAD extension. USCIS is considering EAD extensions to be filed 180 days prior to expiration as with H-1B and L-1 extensions (instead of only 120 days prior).
In summary, continued work authorization for I-485 EADs is welcome news for those employed pursuant to such EADs, as until now the non-issuance of EADs in a timely fashion would cause a lot of unnecessary heartburn to employers, employees and also to GLF – with the need to file inquiries with USCIS, remove employees from payroll etc.
Grace Period Following H-1B Employment Termination
One Time 60-Day Grace Period
This Rule provides a one-time 60-day grace period after termination of H-1B employment (by employer or employee). The grace period is for up to 60 days or prior to expiration of authorized stay, whichever comes first. This should allow H-1B employees and dependents needed time to seek H-1B transfer, change of status or departure from the U.S. This grace period would also extend to E-1, E-2, E-3, H-1B1, L-1, O-1 and TN employees and dependents. There is no continued work authorization during the 60-day grace period and workers must wait for petition approval. This is a welcome step and it removes unnecessary stress for workers; even those wanting to wind-up and leave because: selling homes, ending apartment leases, selling cars, closing bank accounts etc. all take time and the regulations until now never really contemplated the time required for such activities.
10-day Grace Period Before and After Employment Validity Terms
H-1B workers have a grace period of 10 days before and after the validity of an H-1B petition during which period they remain in the US but not work. CBP officials at airports would often add 10 days to the end of H-1B petition validity in the issuance of I-94 end date. The new codifies and extends the practice of the 10-day grace period of authorized stay, to workers on E-1, E-2, E-3, L-1, and TN status also.
I-140 EADs for “Compelling Circumstances”
The most disappointing aspect of the Rule is the employment authorization piece for I-140 beneficiaries. GLF was hoping in earnest that the Final Rule would allow I-140 EADs more liberally and would as such this provision would become the centerpiece of the Rule.
By adding the need to demonstrate “Compelling Circumstances,” by placing restrictions on renewals, by removing availability of I-485 for applicants using this EAD, this Rule totally dilutes the availability of I-140 EADs and makes this provision practically worthless.
As such, GLF does not anticipate that any of our clients will be using this EAD provision very much.
For purposes of discussion, however, this Rule allows EAD for one-year duration, when the applicant can demonstrate that he/she:
(1) Is in the U.S. on valid E-3, H-1B, H-1B1, O-1 or L-1 status,
(2) Is the beneficiary of an approved EB-1, EB-2 or EB-3 I-140 petition,
(3) Does not have a visa number available, and
(4) Can demonstrate “Compelling Circumstances” for EAD approval.
EAD extension is limited to:
(1) Continued “Compelling Circumstances” or
(2) Priority date that is less than one (1) year from the current cutoff date
Examples of “Compelling Circumstances?” in the Rule:
The rule does not define “Compelling Circumstances” and prefers to grant discretion to USCIS officers adjudicating the EAD. However, the rule has identified four circumstances which may be considered compelling:
(1) Serious illness or disability – for example, requiring moving to a different area of requiring significant change in the employment circumstances.
(2) Employer dispute retaliation – for example, as a result of the employee filing a complaint or similar grievance with appropriate agency.
(3) Substantial harm to the applicant – for example, as a result to sudden change in terms of employment and substantial difficulty in finding other employment.
(4) Significant disruption to the employer – for example, disruption due to inability to obtain visa petition approval due to corporate reorganization.
GLF appreciates the opportunity to bring these important and timely updates. Please do not hesitate to contact us if you have any questions or concerns or would like to discuss this Rule in more detail.
Also, we request you to encourage your friends and colleagues also to sign up for the Free GLF Newsletter at http://www.gokarelaw.com/newsletter/
GLF appreciates your trust and confidence in us over the years and we thank you for the continued support!