New USCIS Regulation Addresses Job Mobility for Employer-Sponsored Foreign National Workers
On November 18, 2016, USCIS published a new regulation intended to ease restrictions on job mobility for employer-sponsored foreign workers and help enable U.S. businesses to retain and develop highly-skilled foreign workers in light of the burdens imposed by lengthy immigrant visa backlogs on employment-based adjustment applicants.
The new rule takes effect on January 17, 2017.
Specifically, the rule addresses and codifies provisions made in two key statutes: the American Competitiveness in the Twenty-First Century Act (AC21), enacted in 2000, and the American Competitiveness and Workforce Improvement Act (ACWIA), enacted in 1998. The rule also establishes grace periods for nonimmigrant workers and provides automatic work authorization extensions to adjustment applicants and certain other classes of foreign nationals who have timely filed for renewal of an employment authorization document (EAD).
While some questions remain outstanding on the full application of these new regulations, some key points of the final rule are as follows:
Retention of Priority Dates for Some I-140 Beneficiaries:
- The rule provides an I-140 petition that is withdrawn 180 days or more after approval OR 180 days or more after the associated adjustment of status application has been filed REMAINS APPROVED unless the approval is revoked on other grounds (ie: fraud, material misrepresentation, invalidation/revocation of an underlying labor certification, or material USCIS error).
- The rule also provides that if an I-140 petitioner’s business terminates 180 days or more after approval OR 180 days or more after the associated adjustment of status application has been filed, the I-140 REMAINS APPROVED unless the approval is revoked on other grounds (ie: fraud, material misrepresentation, invalidation/revocation of an underlying labor certification, or material USCIS error).
In both provisions, the rule specifies that if an employment based petition on behalf of an alien is withdrawn, the job offer is rescinded and the alien must obtain a new employment based preference petition in order to seek adjustment of status.
The rule also provides that a priority date from a revoked I-140 petition can be applied to subsequent -140 filings for an alien, unless the approval is revoked on other grounds (ie: fraud, material misrepresentation, invalidation/revocation of an underlying labor certification, or material USCIS error).
Adjustment of Status Portability:
The rule provides that the beneficiary of a pending I-140 may port employment to a new employer as long as his/her adjustment of status application has been pending for 180 days or more AND as long as the pending I-140 petition was eligible for approval at the time of filing AND remains approvable until the adjustment of status application has been pending for 180 days or more. This is consistent with current USCIS policy.
Employment Authorization (EAD) for Some I-140 Beneficiaries:
The rule allows E-3, H-1B, H-1B1, L-1 and O-1 nonimmigrants employees with an approved I-140 petition to apply for a one-year employment authorization document (EAD) if their priority date is backlogged AND they can show compelling circumstances to justify the issuance of employment authorization (ie: medical emergency or significant disruption to the employer).
An alien may renew the EAD authorized under this provision if their priority date is backlogged AND EITHER ONE OF THE FOLLOWING APPLIES:
- The alien can show compelling circumstances to justify the issuance of employment authorization (ie: medical emergency or significant disruption to the employer).
OR
- The difference between the alien’s priority date and the date upon which the immigrant visa is available is one year or less according to the Department of State Visa Bulletin’s LAST ACTION DATE publication in effect on the date of the EAD application filing.
The rule also allows for dependent family members to apply for an EAD under this provision provided that the principal alien has been granted an EAD under this provision. The petition may be filed concurrently. The dependent validity date may not exceed that of the primary applicant.
The rule also indicates an alien is not eligible for an EAD (including renewal) under this provision if the alien has been convicted of any felony or two or more misdemeanors.
Grace Periods for Nonimmigrant Workers:
The regulation provides E, E3, H-1B, H-1B1, L-1, O-1 and TN nonimmigrants (including dependents) may be admitted to the United States for the validity period of their stay PLUS an additional period of up to 10 days before the validity period begins and 10 days after the validity period ends. The alien may work only during the validity periods of the visa (not the grace periods). The exception is H-1B foreign nationals who are porting to new employment.
The regulation also provides that E, E3, H-1B, H-1B1, L-1, O-1 and TN nonimmigrants (including dependents) whose employment terminates prior to the end validity date shall not be considered to have failed to maintain nonimmigrant status for up to 60 consecutive days OR until the end of the authorized end validity date of the nonimmigrant status (whichever is shorter). This will allow such employees to extend, change or otherwise maintain status or (for H1B employee), port to new employment. The alien may work only during the validity periods of the visa (not the grace periods). The exception is H-1B foreign nationals who are porting to new employment.
Post 6th Year H1B Extensions:
While the rule does not alter current USCIS policy around post 6th year H1B extension eligibility, the rule does add additional requirements and limitations.
- Post 6th Year H1B extensions (one year increment) will not be granted if the alien is the beneficiary of an approved I-140 and fails to file an adjustment of status within one year of the immigrant visa becoming available (ie: within one year of the priority date becoming current).
- Post 6th Year H1B extensions (one year increment) will not be granted if, at the time of the extension filing, the alien beneficiary’s labor certification is no longer valid, the I-140 has been denied or revoked or an adjustment of status application has been approved or denied.
- Post 6th Year H1B extensions (three year increments) may be granted in cases where an approved I-140 petition was withdrawn 180 days or more after approval unless the approval is revoked on other grounds (ie: fraud, material misrepresentation, invalidation/revocation of an underlying labor certification, or material USCIS error).
Automatic Extension of Employment Authorization (EAD)
The rule provides for an automatic 180 day extension of employment authorization documents (EAD) from the date of the EAD expiration if the EAD extension:
- Is properly filed prior to the expiration date of the current EAD.
- Based on the same EAD category as shown on the underlying EAD.
- Based on a class of aliens whose eligibility to apply for an EAD continues. This includes adjustment applicants, applicants for extension of Temporary Protected Status, and certain applicants under the Violence Against Women Act.
The automatic extension will not be available to H-4, L-2 or E nonimmigrant spouses seeking renewal of employment authorization.
The automatic extension period will automatically terminate the earlier of up to 180 days after the expiration date of the EAD or upon issuance of a denial of the application.
This rule provides that an EAD that has expired on its face is considered unexpired when combined with a Notice of Action (Form I797C) which demonstrates that the EAD application was properly filed prior to the expiration date of the current EAD
USCIS has indicated that, except when impracticable, it will accept renewal applications up to 180 days before EAD expiration to minimize the impact of extended EAD processing delays on a foreign national’s continued eligibility to work; previous policy prohibited renewal applications from being filed more than 120 days before EAD expiration.
