December 22, 2016

High-Skilled Foreign Workers: Summary of Rule Changes Effective January 17, 2017

Starting January 17, 2017, the long-awaited regulations for high-skilled workers incorporating provisions of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) and the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) will finally be implemented.

The Department of Homeland Security issued the final rule called “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers” on November 18, 2016, after initially publishing and requesting comments on the proposed rule on December 31, 2015. As outlined in more detail below, many of the provisions incorporated into this final rule are clarifications or a continuation of current immigration policies and processes which stem from the AC21 and ACWIA legislation passed into law over 15 years ago. However, some provisions are new and in line with the visa modernization proposals announced by President Obama in 2014. In implementing the final rule, DHS and USCIS indicate that the rule will enhance consistency within the agency and clarify questions raised over the years under AC21 and ACWIA. Although most of the provisions as outlined in the proposed rule remained intact, some provisions were clarified or enhanced based on comments that the agency received during the 60-day comment period in early 2016.

Highlights of the High-Skilled Worker Rule

  • Implementation of AC21 and ACWIA: With this final rule, DHS has clarified and improved long-standing policies and procedures in response to the laws under AC21 and ACWIA. This includes policy memoranda and a precedent decision of the USCIS Administrative Appeals Office (AAO). Clarifying and improving these laws pursuant to this regulation will provide greater consistency and transparency in agency adjudication pursuant to AC21 and ACWIA.

  • Extending H-1B status for workers being sponsored for permanent residence – individuals affected by per-country limitations: The final rule clarifies that consistent with current practice, H-1B extensions will be granted in three-year increments until adjustment of status applications are approved and that this is not just a “one-time” protection. Will continue to include time remaining in the normal six-year period of H-1B status and will continue to apply to those individuals in or outside of the U.S. H-1B petitioner does not have to be the same employer listed in the I-140 immigrant visa petition. Any qualifying immigrant visa petition can be used.

  • Extending H-1B status for workers being sponsored for permanent residence – individuals affected by lengthy adjudication delays: Will continue to apply to individuals both in and outside of the U.S. Final rule continues the current practice that a denial or revocation is not final during the period in which an appeal is pending so that an H-1B extension can continue to be filed. Government will continue to allow extensions to be filed as early as six months prior to the requested H-1B start date and can include any recapture and remainder time, along with the time requested under AC21. However, the final rule clarifies that an individual becomes ineligible for the lengthy adjudication delay exemption if he or she fails to apply for adjustment of status or an immigrant visa within one year of the date an immigrant visa is authorized for issuance.

  • AC21 job portability for certain adjustment of status applicants: Final rule conforms to current agency policy interpretation. New offer of employment under AC21 may be from the petitioning employer, a different U.S. employer or based on self-employment. Offer must be bona fide. DHS has amended the rules to prohibit approval of an adjustment of status application when the underlying I-140 immigrant visa petition has been revoked. However, automatic revocations will be less frequent with additional changes under the final rule. This will include cases where the initial petitioning employer has gone out of business since the I-140 approval. Same or similar language is incorporated in the final rule and USCIS has developed a new form - Supplement J to Form I-485, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j). The government indicates that by using Supplement Form J, there will be uniformity in the collection and submission of evidence and that USCIS can then confirm that the job offer continues to be available and meets the same or similar occupational standard. By using Supplement Form J, submitting job offer letters and other documentation will no longer be required. Before the proposed rule was published and this final rule implemented, many thought this rule would be expanded so that a new PERM and I-140 would not be needed with a change of employer before an I-485 application was filed and the portability rules kicked in. This rule clearly states that if a foreign worker does NOT satisfy the I-485 portability rules which includes a pending I-485 for the 180 day time period, a change of employer WILL require a new PERM (if the first step in the permanent residence process) and I-140 in order to continue moving forward with the permanent residence process with the ability to file an I-485 adjustment of status application once the individual’s priority date becomes current.

  • AC21 H-1B portability: Clarifies current USCIS interpretation that H-1B portability only applies to H-1B workers in the U.S. Employment authorization under the pending H-1B portability petition continues until adjudication. Successive “bridging” petitions can be filed and will be processed by USCIS. However, subsequent petitions will depend on the approval of the extension of stay in a prior pending petition. The final rule also clarified that H-1B portability does not apply in the cap-exempt to cap-subject situation to allow an H-1B worker to start working for the H-1B cap employer with H-1B portability prior to October 1.

  • H-1B admission period – calculating remainder time: Current policy interpretation is added that time spent outside of the U.S. can be added back to the six-year validity period. Any trip of at least 24 hours outside of the U.S. can be recaptured.

  • H-1B cap-exempt employers: Final rule clarifies and improves cap exemption for certain H-1B petitioning employers. Incorporates “employed at” standard and petitioner must establish a nexus between the work performed and the purpose/objectives of the exempt entity by a preponderance of the evidence. Fee exemption definitions of institution of higher education will now apply to cap exemption. DHS will specifically expand the definition of “affiliated or related nonprofit entities” to include nonprofit entities that have entered into formal written affiliation agreements and establish an active working relationship with the institution of higher education and one of the primary purposes is to directly contribute to the research/education mission of the institution of higher education. Per the comments received, DHS removed the phrase “absent a demonstration of shared ownership or control” to clarify that a nonprofit entity need not prove the absence of shared ownership or control when relying on the existence of a formal affiliation agreement to establish that the entity is related to or affiliated with an institution of higher education. Some commenters asked DHS to adopt a deference policy based on the 2011 interim policy memorandum which deferred to prior recognition of cap-exempt status. DHS did not adopt this deference standard in the final rule indicating that USCIS will now use the criteria outlined in this final rule to determine cap exemption and clarified that other past guidance on this issue has been superseded by the final rule. DHS also confirmed that an H-1B worker can work under H-1B concurrent employment for both an H-1B cap subject and H-1B cap exempt employer. However, the H-1B cap subject employment cannot be authorized for a validity period beyond that of the H-1B cap exempt employment.

  • Revocation of approved employment-based immigrant visa petitions: Will amend regulations so that EB-1, EB-2 and EB-3 immigrant visa petitions that have been approved for 180 days or more would no longer be automatically revoked based on withdrawal by the petitioner or termination of the petitioner’s business. Does not apply to petitions revoked based on fraud, misrepresentation and similar issues. However, a new I-140 must be in place because an I-140 withdrawn or based on an employer’s termination of business cannot be the basis for an immigrant visa for an I-485 adjustment of status application.

  • Retention of priority dates: Clarifies that the priority date for employment-based petitions not requiring a labor certification is the date that the I-140 petition is signed and filed with USCIS. Retention of priority dates for subsequent petitions will be allowed except in fraud or misrepresentation situations or invalidation of labor certification. The final rule also addressed certain comments regarding the retention of priority dates and confusion with the new 180-day rule regarding approved I-140 petitions and referenced above. DHS clarified that under this rule that the beneficiary of a Form I-140 petition may be able to retain his or her priority date even if approval of the petition is revoked due to withdrawal or business termination.

  • Grace periods – temporary workers: Will allow for 10-day grace periods at the beginning and end of work validity period for work visa categories other than the H-1B category. The following nonimmigrant categories will now all have the 10 day grace period: H-1B, O, P, E-1, E-2, E-3, L-1 and TN. The final rule also implements a grace period of up to 60 days to allow for a change in employment for certain work visa classifications, including the E-1, E-2, E-3, H-1B, H-1B1, L-1, TN and O-1 categories. The government indicates that having this 60-day grace period will enhance job portability for these high-skilled workers and will allow a grace period for up to 60 days or until the validity period ends (whichever is shorter). The worker cannot work during the grace period and this grace period can only be applied one time per authorized nonimmigrant validity period. Finally, the final rule also clarifies that the nonimmigrant worker, during either a 10-day or 60-day grace period may apply for and be granted an extension or change of status, as well as can commence employment pursuant to the H-1B portability rules also clarified in this new rule. USCIS also notes in the comments to the final rule that the Form I-797 approval notice will be changed to include language about the discretionary 10-day grace period.

  • Compelling circumstances I-140 employment authorization: This new immigration provision will allow certain skilled workers with compelling circumstances who have an approved I-140 immigrant visa petition to apply for a one-year employment authorization card if specific requirements are satisfied. Such requirements include establishing compelling circumstances such as medical issues or other emergencies, employees engaging in protected conduct who fear retaliation from the employer, or other economic harm facing the employee or employer. Comments to the final rule provide several examples of situations where compelling circumstances employment authorization might be applicable. Additional criteria include that the individual is currently in the U.S. and maintaining E-3, H-1B, H-1B1, O-1 or L-1 status, that the individual is the beneficiary of an approved I-140 petition, and that the individual cannot immediately move forward with the permanent residence process due to visa backlogs. Such work authorization is only for a limited period when there are compelling circumstances. If the compelling circumstances are continuing and can be shown to USCIS, a one-year renewal of this type of work authorization can be applied for and approved by USCIS. This employment authorization must be applied for with Form I-765. The final rule confirmed that applicants who have been convicted of a felony or two or more misdemeanors are ineligible for this compelling circumstances work authorization. Spouses and children will be eligible for an EAD if the principal spouse or parent is granted an EAD. The EAD of the dependent will only be granted for the same time period of the principal spouse or parent. Although commenters to the proposed rule requested that advance parole be granted as part of the compelling circumstances work authorization, with the issuance of the final rule, USCIS decided not to make advance parole automatic with the issuance of this type of EAD. However, USCIS did note that it would consider such advance parole travel authorization on a case by case basis for a specific humanitarian reason or significant benefit to the public. The comments with the final rule indicate that those individuals in the U.S. working under this compelling circumstance provision will be considered in a period of authorized stay. However, having this type of work authorization will NOT allow an individual to adjust status to permanent residence. In order to file an I-485 adjustment of status application, this means that the individual would need to find an employer to sponsor him or her for H-1B status, leave and obtain an H-1B visa stamp, return back to the U.S. and then file the I-485 application. Based on the narrow requirements and the inability to file for an I-485 application, it is likely that this new provision will not be routinely used by immigration filers.

  • H-1B licensing: Final rule follows current USCIS policy which allows for H-1B approval for a temporary period if the obstacle to obtaining the license is the lack of a Social Security number, employment authorization or other technical requirement. H-1B petition will be approved for a one-year period to allow for the license in this discrete situation. All other requirements of the H-1B visa category must still be satisfied.

  • Processing of employment authorization documents – 180-day automatic extensions in certain circumstances: DHS will now allow certain classes of individuals eligible for employment authorization to have the validity of their EADs automatically extended for a period of 180 days as long as the renewal application for an extension was timely filed. The 15 categories that would allow for these automatic extensions include: refugees; asylees; parents or dependent children of people who got permanent residency under INA 101(a)(27)(I)(a)(7); citizens of Micronesia or the Marshall Islands; individuals granted withholding of deportation or removal; TPS (a)(12) and (c)(19); applicants with pending asylum or withholding of deportation or removal (c)(8); pending I-485 adjustment of status applicants; individuals with pending suspension of deportation and cancellation of removal; applicants for creation of record of lawful admission as permanent residents; legalization applicants under (c)(20) and (c)(22); LIFE act adjustment of status applicants; and VAWA cases under (c)(31). H-4 and other spouses with EADs are not eligible for the 180-day benefit. Under the new rule, a filing receipt will be required to demonstrate work authorization for Form I-9. Although DHS indicates that it will remain committed to a 90-day processing time period, the 90-day time limit to process EADs is being eliminated under the proposed rule. DHS also announced in the rule that it will adopt a new filing policy which will allow EAD extension applications to be filed no sooner than 180 days before expiration instead of the current 120-day policy. DHS also confirmed in its comments that applicants will continue to have redress in the case of adjudication delays by contacting USCIS.

As referenced above, these are highlights of the new rule. As with any new rule, we will see additional clarification, guidance and practical implications as this rule is implemented by USCIS in early 2017 and beyond.

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