USA December 1 2016

Last month, USCIS issued its long-awaited final rule regarding certain Employment-Based Immigrant and Nonimmigrant Visa programs. See 81 Fed. Reg. 82398 (November 18, 2016). The rule is extensive and, according to USCIS, largely conforms government regulations to current USCIS practices and policies established in response to various sections of the American Competitiveness and Workforce Improvement Act of 1998 and the American Competitiveness in the Twenty-first Century Act of 2000. These statutes were intended to provide greater flexibility and job portability to certain nonimmigrant workers, particularly those sponsored for U.S. permanent residence. The pertinent provisions are as follows: H-1B “Recapture”: The final rule incorporates into USCIS regulations the ability of FNs to “recapture” time spent abroad and use it to extend H-1B time beyond the six-year maximum limit.

H-1B “Portability”: The final rule incorporates into USCIS regulations the current administrative rules regarding when H-1B employees may move to a new employer while still maintaining their H-1B status.

H-1B Cap Exemption: The final rule clarifies two issues regarding when H-1B workers must be counted against the cap. First, it provides that H-1B workers who work for a cap-subject employer, but spend the majority of their time at a cap-exempt location, are not subject to the cap. Second, it allows a cap exemption for H-1B workers employed concurrently by cap-subject and cap-exempt employers.

H-1B Cap Exemption/Affiliation: In an important development for health care systems, the final rule expands the definition of “affiliation” to an institution of higher education by eliminating the “shared ownership and control” requirement for cap-exempt organizations.

H-1B Licensure: Under the final rule, qualified H-1B workers now may include unlicensed professionals who are legally permitted to “fully practice” occupations that normally require a license as long as they are under the supervision of a licensed professional.

H-1B Extensions Beyond Six Years: The final rule incorporates provisions of AC21 that (i) permit H-1B employees to extend their status beyond the six-year maximum when at least one year has elapsed since the filing of a labor certification application or I-140 petition, (ii) allow H-1B employees to continue to secure these H-1B extensions during the administrative appeal process for applications or petitions that have been denied, and (iii) permit H-1B employers to extend the status of these employees even though they were not the original approved labor certification application or I-140 petition sponsor.

Limits on H-1B Extensions During Lengthy Green Card Adjudications: The final rule limits extensions of H-1B status beyond six years whenever the FN has an approved I-140 petition and is eligible to file for permanent residence under the Visa Bulletin issued by the U.S. Department of State (“DOS”) but fails to do so within one year.

Green Card “Portability”: The final rule confirms when FNs sponsored by one employer may move to another employer but still preserve their pending green card application.

Continuing I-140 Petition Validity: The final rule confirms that an approved I-140 petition remains valid and will support green card or subsequent H-1B extension applications even when the sponsoring employer seeks to withdraw or revoke the I-140 petition so long as at least 180 days have passed after the I-140 petition approval or the filing of an accompanying green card application.

Priority Dates: The final rule clarifies when priority dates in employer-sponsored cases are established and retained when the employee moves to a new employer.

Employment Authorization: The final rule allows USCIS to issue employment authorization to certain nonimmigrants in E-3, H-1B, H-1B1, L-1, and O-1 nonimmigrant classifications when (i) “compelling” circumstances exist and (ii) their priority date is backlogged. The final rule also removes the 90-day period during which USCIS must adjudicate applications for employment authorization but provides for an automatic 180-day extension of employment authorization in certain situations where a FN files to renew an employment authorization document extension.

Grace Periods: The final rule provides (i) two 10-day grace periods—one before admission and one at the expiration of an FN’s E-1, E-2, E-3, L-1, or TN status—and (ii) one grace period of up to 60 consecutive days of allowed unemployment for FNs in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN nonimmigrant status.

This document has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorneys in connection with any fact-specific situation under federal law and the applicable state or local laws that may impose additional obligations on you and your company. © 2020 Epstein Becker & Green, P.C.