ANALYSIS AND OVERVIEW OF THE CHANGES AND SYSTEM FIXES

The United States Citizenship and Immigration Services (USCIS) released the final rule that seeks to modernize and improve certain aspects of the employment-based immigration system. USCIS has also revised regulations to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents. This new rule will go into effect on January 17, 2017. That is 60 days after its November 18, 2016, release date.

The final rule seeks to clarify and improve longstanding DHS policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act related to certain foreign workers, which will enhance USCIS’ consistency in adjudication.

DETAILED COMPILATION OF IMPORTANT PROVISIONS

EAD AUTOMATIC 180 DAY EXTENSION

The new final rule changes several DHS regulations governing the processing of applications for employment authorization. This seeks to provide additional stability and certainty to U.S. employers and individuals eligible for employment authorization in the United States.

First, to minimize the risk of any gaps in employment authorization, the final rule automatically prolongs the validity of Employment Authorization Documents (EADs or Forms I-766) in certain circumstances based on the timely filing of EAD renewal applications. Specifically, the rule automatically extends the employment authorization and validity of existing EADs issued to certain employment-eligible individuals for up to 180 days from the date of expiration, as long as:

1. A renewal application is filed based on the same employment authorization category as the previously issued EAD (or the renewal application is for an individual approved for Temporary Protected Status (TPS) whose EAD was issued under 8 CFR 274a.12(c)(19));

2. The renewal application is timely filed prior to the expiration of the EAD (or, in accordance with an applicable Federal Register notice regarding procedures for renewing TPS-related employment documentation) and remains pending; and (3) the individual’s eligibility for employment authorization continues beyond the expiration of the EAD and an independent adjudication of the underlying eligibility is not a prerequisite to the extension of employment authorization. Concurrently, DHS eliminates the regulatory provisions that require adjudication of the Application for Employment Authorization (Form I-765 or EAD application) within 90 days of filing and that authorize interim EADs in cases where such adjudications are not conducted within the 90-day timeframe. These changes provide enhanced stability and certainty to employment-authorized individuals and their employers while reducing opportunities for fraud and protecting the security related processes undertaken for each EAD application. See final 8 CFR 247a.13(d).

COMPELLING CIRCUMSTANCES EMPLOYMENT AUTHORIZATION FOR I-140 APPROVALS

C ompelling circumstances Employment Authorization for I-140 Approvals

The final rule also provides a stopgap measure, in the form of temporary employment authorization, to certain nonimmigrants who are the beneficiaries of approved employment-based immigrant visa petitions, are caught in the continually expanding backlogs for immigrant visas, and are facing compelling circumstances. This stopgap measure is intended to address certain particularly difficult situations, including those that previously may have forced individuals on the path to a lawful permanent residence to abruptly stop working and leave the United States. When sponsored workers and their employers are in particularly difficult situations due to employment-based immigrant visa backlogs, the compelling circumstances employment authorization provision may provide a measure of relief, where currently there is none.

Specifically, the final rule provides that, to obtain a temporary grant of compelling circumstances employment authorization, an individual must

A. Be in the United States in E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status, including in any applicable grace period, on the date the application for employment authorization is filed;

B. Be the principal beneficiary of an approved Form I-140 petition;

C. Establish that an immigrant visa is not authorized for issuance based on his or her priority date, preference category, and country of chargeability according to the Final Action Date in effect on the date the application is filed; and

D. Demonstrate compelling circumstances that justify the exercise of USCIS discretion to issue an independent grant of employment authorization. See final 8 CFR 204.5(p)(1).

The final rule limits the grant of employment authorization in compelling circumstances to a period of 1 year. See final 8CFR 204.5(p)(4). Additionally, the principal beneficiary may seek renewals of this employment authorization in 1-year increments if:

1. He or she continues to face compelling circumstances and establishes that an immigrant visa is not authorized for issuance based on his or her priority date, preference category, and country of chargeability according to the Final Action Date in effect on the date the renewal application is filed; or

2. The difference between his or her priority date and the relevant Final Action Date is 1 year or less (without having to show compelling circumstances). See final 8 CFR 204.5(p)(3)(i). The final rule allows family members of these individuals to also apply for employment authorization and provides that the validity period for their EADs may not extend beyond that authorized for the principal beneficiary. See final 8 CFR 204.5(p)(2) and (p)(3)(ii). The large majority of these individuals, after availing themselves of this temporary relief, are likely to continue on their path to permanent residence.

DHS confirms that consistent with other processes, applicants who have been convicted of any felony or two or more misdemeanors are ineligible for employment authorization under the compelling circumstances provision. See final 8 CFR 204.5(p)(5). DHS, however, will not deport individuals without due process or in a manner inconsistent with controlling statutory and regulatory authority. Please note that these aliens will not be able to travel, as Advance Parole is not being granted only EAD. However, they do not accrue unlawful presence. He or she may be unable to adjust status to lawful permanent residence in the United States when his or her priority date becomes current. An individual who is seeking lawful permanent residence based on classification as an employment-based immigrant is generally barred by statute from applying to adjust status in the United States if he or she is not in lawful nonimmigrant status. If an individual working on a compelling circumstances EAD finds an employer who is willing to sponsor him or her for a nonimmigrant classification (such as the H-1B nonimmigrant classification), he or she would have to leave the United States and may need to obtain a nonimmigrant visa from a consulate or embassy overseas before being able to return to the United States to work in that status. See INA 248, 8 U.S.C. 1258; 8 CFR 248.1(b). Once the individual has been admitted in nonimmigrant status, he or she may be eligible to adjust status to lawful permanent residence, if otherwise eligible.

What is meant by compelling circumstances?

Although the final rule does not explicitly define compelling circumstances, the agency does provide this updated list of illustrative circumstances that USCIS, in its discretion, might find compelling. USCIS emphasizes that this list is not exhaustive of the types of situations that might involve compelling circumstances.

1. Serious Illnesses and Disabilities. The nonimmigrant worker can demonstrate that he or she, or his or her dependent, is facing a serious illness or disability that requires the worker moving to a different geographic area for treatment or otherwise substantially changing his or her employment circumstances. A move to another part of the country to ensure proper medical care is just one example of compelling circumstances resulting from a serious illness or disability of the principal beneficiary or his or her family member.

2. Employer Dispute or Retaliation. The nonimmigrant worker can demonstrate that he or she is involved in a dispute regarding the employer’s alleged illegal or dishonest conduct as evidenced by, for example, a complaint filed with a relevant government agency or court, and that the employer has taken retaliatory action that justifies granting separate employment authorization to the worker on a discretionary basis or that the dispute otherwise is shown to have created compelling circumstances. DHS recognizes that employer retaliation in response to a dispute is not limited only to termination of employment, but only could include any number of actions taken by an employer, including harassment.

Depending on the unique circumstances of a situation, an employer dispute could rise to the level of compelling circumstances even absent employer retaliation, baths declines to adopt the suggestion to grant a compelling circumstances EAD on the sole basis that the applicant is involved in a labor dispute. DHS is allowing sufficient flexibility under this ground, including by not defining “retaliation” or “labor dispute” in this rule or confining the ground to LCA violations alone. DHS further notes that the employer retaliation example does not identify the universe of fact patterns that might involve improper behavior by employers. DHS believes that the approach outlined in this final rule will make appropriate relief available for certain employees who can demonstrate that they do not have the option of remaining with their current employer or that they face retaliatory actions if they do remain with their current employer.

3. Other Substantial Harm to the Applicant. The nonimmigrant worker can demonstrate that due to compelling circumstances, he or she will be unable to timely extend or otherwise maintain status, or obtain another nonimmigrant status, and absent continued employment authorization under this proposal the applicant and his or her family would suffer substantial harm. In some situations, this showing might be tied to financial hardship facing the principal and his or her spouse and children. An example of such substantial harm may involve an H-1B nonimmigrant worker who has been applying an industry-specific skillset in a high-technology sector for years with a U.S. entity that is unexpectedly terminating its business, where the worker is able to establish that the same or a similar industry (e.g., nuclear energy, aeronautics, or artificial intelligence) does not materially exist in the home country. Another example might include a nonimmigrant worker whose return to his or her home country would cause significant hardship to the worker and his or her family by resulting in a series of circumstances regarding the family being uprooted that in their totality, rise to the level of compelling circumstances. In In this circumstance, the employment authorization proposal would provide the individual with an opportunity to find another employer to sponsor him or her for immigrant or nonimmigrant status and thereby protect the worker and his or her family members from the substantial harm the worker and his or her family members would suffer if required to depart the United States.

Although approaching or reaching the statutory temporal limit on an individual’s nonimmigrant status will not, standing alone, amount to compelling circumstances, this could be a factor considered by DHS in weighing the totality of the circumstances on a case-by-case basis. Likewise, job loss alone will not be considered substantial harm to the applicant, unless an individual can show additional circumstances that compound the hardship associated with job loss.

4. Significant Disruption to the Employer. The nonimmigrant worker can show that due to compelling circumstances, he or she is unexpectedly unable to timely extend or change status, there are no other possible avenues for the immediate employment of such worker with that employer, and the worker’s departure would cause the petitioning employer substantial disruption. DHS does not believe that standing alone, a time delay in project completion would likely rise to a compelling circumstance, as a commenter suggested; however, such delays when combined with other factors, such as the cost to train or recruit a replacement or harm to an employer’s reputation in the marketplace, might rise to a compelling circumstance.Additional examples of significant disruption may include the following:

4.A. An L-1B nonimmigrant worker sponsored for permanent residence by an employer that subsequently undergoes corporate restructuring (e.g., a sale, merger, split, or spin-off) such that the worker’s new employer is no longer a multinational company eligible to employ L-1B workers, there are no available avenues to promptly obtain another work-authorized nonimmigrant status for the worker, and the employer would suffer substantial disruption due to the critical nature of the worker’s services. In such cases, the employment authorization proposal would provide the employer and worker a temporary bridge allowing for continued employment while they continue in their efforts to obtain a new nonimmigrant or immigrant status.

4.B. An H-1B nonimmigrant worker who provides critical work on biomedical research for a non-profit entity, affiliated with an institution of higher education, that subsequently reorganizes and becomes a for-profit entity, causing the worker to no longer be exempt from the H-1B cap. In cases where the worker may be unable to obtain employment authorization based on his or her H-1B status, and the employer is unable to file a newH-1B petition based on numerical limitations or to obtain another work authorized nonimmigrant status, the employment authorization available under 8 CFR 204.5(p) could provide a temporary bridge for continued employment of the worker as his or her departure would create substantial disruption to the employer’s biomedical research.

CHANGING JOBS WHEN I-485 PENDING ,CHANGES IN PROCESS

First, in § 245.25(a), DHS is replacing a general reference in the NPRM to a “USCIS designated form” with a specific reference to “Form I-485 Supplement J” as the form DHS intends to be used for an individual to demonstrate continuing eligibility for adjustment of status based on an existing or new job offer under INA 204(j).

Second, DHS also is clarifying that the Supplement J may be accompanied by “material and credible documentary evidence, in accordance with form instructions.” This revision expands the types of evidence that can be submitted in support of Supplement J beyond “material and credible information provided by another Federal agency, such as information from the Standard Occupational Classification (SOC) system,” as had been proposed. As a result, DHS is deleting the evidentiary list included in proposed § 245.25(b).

Third, DHS is revising proposed § 245.25(a)(2)(ii) to reaffirm that qualifying Form I-140 petition must be approved before DHS examines a portability request under INA 204(j). Moreover, DHS is adding §245.25(a)(2)(ii)(B) to confirm that, unless approval of the petition would be inconsistent with a statutory requirement, a pending qualifying Form I-140petition may be approved if (1) the petitioner established the ability to pay at the time of filing the petition and (2) all other eligibility criteria are met at the time of filing and until the beneficiary’s application for adjustment of status has been pending for 180 days.

Approval of I-140 after it is pending for 180 days even If employer withdraws or business closes

If DHS receives a written withdrawal request from the petitioner, or the petitioner’s business terminates, after the associated application for adjustment of status has been pending for 180 days or more, DHS will not deny the petition based solely on those reasons. DHS, however, will deny a Form I-140 petition if DHS receives the written withdrawal request, or a business termination occurs, before the associated application for adjustment of status has been pending for 180 days, even when DHS adjudicates the petition after the associated application for adjustment of status has been pending for 180 days or more.

The applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of filing the benefit.

Finally, DHS maintains through this final rule its existing policy and practice to deny a pending Form I-140 petition at any time, and even after the associated application for adjustment of status has been pending for 180 days or more, if the approval of such petition is inconsistent with a statutory requirement in the INA or other law. See final 8 CFR 245.25(a)(2)(ii)(B)(2). For example, DHS will deny an otherwise qualifying Form I-140 petition at any time if the beneficiary seeks or has sought LPR status through marriage that has been determined by DHS to have been entered into for the purpose of evading the immigration laws. See INA 204(c), 8 U.S.C. 1154(c). DHS also will deny, at any time, a pending Form I-140 petition that involves a petitioner or an employer that has been debarred, under INA 212(n)(2)(C)(i) and (ii), 8 U.S.C. 1182(n)(2)(C)(i) and (ii),even when the debarment occurs after the filing of the petition. Similarly, DHS will deny a Form I-140 petition, at any time, if the beneficiary is required by statute to be licensed to perform his or her job and the beneficiary loses such licensure before the petition is adjudicated. See e.g., INA 212(a)(5)(B) and (C), 8 U.S.C. 1182(a)(5)(B) and (C). DHS notes that these examples do not encompass all scenarios when a statute requires DHS to deny a pending Form I-140 petition. DHS will review such petitions on a case-by-case basis.

NON IMMIGRANT GRACE PERIODS

10-day Grace Periods Before and After Employment Validity Terms

Under the final rule, DHS may provide grace periods of up to 10 days before the petition validity period (or other authorized validity period) begins, and of up to 10 days after the validity period ends to individuals in certain employment-authorized nonimmigrant visa classifications that previously have not been afforded these periods, namely the E-1, E-2, E-3, L-1 and TN classifications. See final 8 CFR 214.1(l)(1).Similar grace periods are currently available to nonimmigrants with H-1B, O, and P classification. Extending such grace periods in these other classifications—which, like in the H-1B, O, and P classifications, are generally available to high-skilled individuals with authorized stays of multiple years—promotes stability and flexibility for such workers, thereby furthering goals consistent with those underlying AC21.

In response to public comment, DHS is striking a phrase from the proposed regulation that was unnecessarily limiting and not fully consistent with how existing 10-day grace periods may be used by H, O, and P nonimmigrants. Specifically, DHS is deleting from proposed 8 CFR 214.1(l)(1) the phrase that could have been read to limit the use of a 10-day grace period only “to prepare for departure from the United States or to seek an extension or change of status based on a subsequent offer of employment.” As noted, this deletion will further the purpose of the NPRM proposal to extend to the E-1,E-2, E-3, L-1 and TN nonimmigrant classifications a benefit similar to the one already available to the H, O, and P nonimmigrant visa classifications. DHS is also making minor technical edits to this provision.

60-day Grace Period Following Termination of Employment

Under the final rule, DHS may also authorize a grace period of up to 60 days in the E-1, E-2, E-3, H-1B, H-1B1, L-1, visa and TN classifications during the period of petition validity (or other authorized validity period). See final 8 CFR 214.1(l)(2).

In response to public comments, DHS is retaining this provision while adding the O-1 visa classification to the list of nonimmigrant classifications eligible for the 60-day grace period. This rule establishes a grace period for up to 60 consecutive days, or until the existing validity period ends, whichever is comes first, whenever employment ends for these individuals. This is to enhance job portability for these high-skilled nonimmigrants. The individual may not work during the grace period. An individual may benefit from the 60-day grace period multiple times during his or her total time in the United States. However, this grace period may only apply one time per authorized nonimmigrant validity period. DHS believes that limiting this grace period to one instance during each authorized validity period balances the interests of nonimmigrant flexibility with the need to prevent abuse of this provision.

Finally, the final rule at 8 CFR 214.1(l)(3) makes clear that the nonimmigrant worker, during either a 10-day or 60-day grace period, may apply for and, if otherwise eligible, be granted an extension of stay or change of status. The beneficiary may also commence employment under H-1B portability per § 214.2(h)(2)(i)(H), discussed in some detail below, if otherwise eligible.

USCIS is revising Form I-797. This is to facilitate consistent application of the discretionary 10-day grace periods and the USCIS will continue to explore ways of notifying petitioners and beneficiaries when grace periods are provided. Specifically, DHS is revising 8 CFR 214.1(l)(1) to clarify that 10-day grace periods may be authorized as a matter of discretion, on a case-by-case basis, to nonimmigrants seeking changes of status or extensions of stay. DHS further notes that if such individuals travel abroad and seek admission at a port of entry upon return, they may show the Form I-797 to a CBP officer who has the discretion to grant 10-day grace periods to eligible H-1B, E-1, E-2, E-3, L-1 and TN nonimmigrant workers. See INA214(a)(1), 8 U.S.C. 1184(a)(1); final 8 CFR 214.2(l)(1).

DHS notes, however, that in limited instances it may be possible for a nonimmigrant worker to qualify for both grace periods. Use of both grace periods may occur, for instance, when a nonimmigrant worker, upon his or her last admission, was provided with a grace period of up to 10 days at the expiration of the validity period, and then experiences a cessation of employment in the last 60 days of the validity period.

DHS also clarifies that, while the grace period may only be used by an individual once during any single authorized validity period, it may apply to each authorized validity period the individual receives. DHS further clarifies that the grace period can last up to 60 consecutive days or until the existing validity period ends, whichever is shorter. As modified, the final rule provides that while the nonimmigrant worker may only receive one grace period in an authorized validity period, he or she would be eligible for a new grace period of up to 60 days in connection with any subsequently authorized validity period. Any days available in such a grace period must be used consecutively, and unused days may not be used later in the same authorized validity period or carried over into a subsequent validity period.

DHS notes that individuals may be eligible for the 60-day grace period if they port to new H-1B employers under INA 214(n) and the petition for new employment (i.e., the H-1B petition used to port) is denied prior to the expiration of the validity period of the previously approved petition on which the individual’s status had been based. However, the 60-day grace period would not apply where a petition for new employment under section 214(n), or an extension of stay petition with the same employer, is denied after the expiration of the validity period.

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DHS will determine whether facts and circumstances may warrant shortening or refusing the 60-day period on a case-by-case basis. If DHS determines credible evidence supports authorizing the grace period, DHS may consider the individual to have maintained valid nonimmigrant status for up to 60days following cessation of employment and grant a discretionary extension of stay or a change of status to another nonimmigrant classification. See 8 CFR 214.1(c)(4) and 248.1(b). Such adjudications require individualized assessments that consider the totality of the circumstances surrounding the cessation of employment and the beneficiary’s activities after such cessation. While many cases might result in grants of 60-day grace periods, some cases may present factors that do not support the favorable exercise of this discretion. Circumstances that may lead DHS to make a discretionary determination to shorten or entirely refuse the 60-day grace period may include violations of status, unauthorized employment during the grace period, fraud or national security concerns, or criminal convictions, among other reasons.

Job Portability for H-1B Nonimmigrant Workers

The final rule at 8 CFR 214.2(h)(2)(i)(H) codifies longstanding DHS policies implementing H-1B job portability under INA 214(n). This section of the final rule enhances the ability of H-1B nonimmigrant workers to change jobs or employers by authorizing them to accept new or concurrent employment upon the filing of a non-frivolous H-1B petition (“H-1B portability petition”).

Bridging

The final rule allows H-1B employers to file successive H-1B portability petitions (often referred to as “bridge petitions”) on behalf of H-1B nonimmigrant workers. An H-1B foreign worker who has changed employment based on an H-1B portability petition filed on his or her behalf may again change employment based on the filing of a new H-1B portability petition, even if the former H-1B portability petition remains pending. Eligibility for employment pursuant to a second or subsequent H-1B portability petition, however, would effectively depend on

1. Whether any prior H-1B portability petitions have been approved or remain pending, and

2. Whether the individual’s Form I-94, issued upon admission or extended pursuant to an approved H-1B petition, has expired. If the request for an extension of stay was denied in a preceding H-1Bportability petition and the individual’s Form I-94 authorizing admission in or extension of H-1B status has expired, a request for an extension of stay in any successive H-1Bportability petition(s) must also be denied. See 8 CFR 214.2(h)(2)(i)(H)(3). SuccessiveH-1B portability petitions thus may provide employment authorization as long as each such H-1B portability petition separately meets the requirements for H-1B classification and for an extension of stay.

An eligible nonimmigrant may be granted employment authorization until the adjudication of the H-1B petition if he or she chooses to engage in concurrent or new employment (including new employment with the same employer) or may be granted employment authorization for a period not to exceed 240 days if he or she chooses to continue the current employment with the same employer.

DHS is aware that H-1B nonimmigrants (and their employers) have expressed concern about their eligibility for admission to the United States during the pendency of a new employer’s petition on their behalf. DHS has long acknowledged that, otherwise, admissible H-1B nonimmigrants may travel and be admitted in H-1B status while H-1B portability petitions on their behalf are pending. However, individuals requesting admission as H-1B nonimmigrants must prove at the port of entry that they are eligible for admission in that status

Employers Exempt from H-1B Numerical Limitations and Qualifying for Fee Exemptions

A notice of proposed rulemaking (NPRM) was proposed to also allow nonprofit entities to qualify for the cap and fee exemptions based on having a written affiliation agreement within an institution of higher education. As proposed, the regulatory text would have allowed such an agreement to serve as the basis for the cap and fee exemptions, if the agreement established an active working relationship between the nonprofit entity and the institution of higher education for the purposes of research or education and so long as one of the nonprofit entity’s primary purposes was to directly contribute to the research or education mission of the institution of higher education.

In the final rule, DHS is replacing the phrase “primary purpose” with “fundamental activity” to avoid potential confusion. This change makes it clearer that nonprofit entities may qualify for the cap and fee exemptions even if they are engaged in more than one fundamental activity, any one of which may directly contribute to the research or education mission of a qualifying college or university. Further, the term “related or affiliated nonprofit entity” is defined consistently for both cap-exemption and ACWIA fee-exemption purposes. This change results in a standard that better reflects current operational realities for institutions of higher education and how they interact with and sometimes rely on, nonprofit entities. Second, the final rule revises the definition of “governmental research organization,” in response to public comment, so that the phrase includes state and local government research entities in addition to federal government research entities. See 8 CFR 214.2(h)(8)(ii)(F)(3) and (h)(19)(iii)(C). Both the ACWIA fee and H-1B cap statutes provide exemptions for “governmental research organizations,” without specifying whether such organizations must be federal government entities. See INA 214(c)(9)(A) and (g)(5)(B), 8 U.S.C. 1184(c)(9)(A) and (g)(5)(B). DHS believes it is reasonable to interpret this language to include state and local government entities and that doing so is consistent with the goals of this rulemaking to improve access to and retention of high-skilled workers in the United States.

DHS believes that its policy extending the cap exemption to individuals employed “at” and not simply employed “by” a qualifying institution, organization or entity is consistent with the language of the statute and furthers the goals of AC21 to improve economic growth and job creation by immediately increasing U.S. access to high-skilled workers, and particularly at these institutions, organizations, and entities. DHS, moreover, believes that the “majority of work time” requirement is a reasonable means to ensure that Congress’ aims in exempting workers from the H-1B Visa cap based on their contributions at qualifying institutions, organizations or entities are not undercut by employment that is peripheral to those contributions.

Employment Authorization and Re-verification on Form I-9

Employers are required to verify the identity and employment authorization of all individuals they hire for employment on Form I-9. For those individuals whose employment authorization or EADs expire, employers must re-verify employment authorization at the time of expiration. DHS is finalizing the changes related to the FormI-9 verification process as proposed, with the exception of minor, technical revisions, in order to conform to the new automatic employment authorization provision established by this rule.