January 19, 2016

High-Skilled Foreign Workers: New Rules From USCIS on H-1B Work Visas, AC21, I-140 Petitions and EADs

The long-awaited proposed rule — “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers” (aka I-140/AC21/EAD Proposed Rule) — was published in the Federal Register on December 31, 2015, by the U.S. Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS). Although there are some new announcements from the government which will affect the employment-based permanent residence process and H-1B work visa category once this rule becomes final, most of the “updates” in this proposed rule are clarifications or a continuation of current immigration policies and processes which stem from the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) and the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA).

In the proposed rule, DHS and USCIS state that the rule will enhance consistency within the agency and clarify questions raised over the years under AC21 and ACWIA. This proposed rule has a 60-day comment period. Additionally, on January 15, 2016, these agencies issued a final rule clarifying provisions related to E-3 and H-1B1 workers, as well as allowing comparable evidence for EB-1 outstanding professors and researchers.

Highlights of Skilled Worker I-140/AC21/EAD Proposed Rule:

  • Proposed implementation of AC21 and ACWIA: With this rule, DHS intends to clarify and improve 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 great 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: Regulations clarify 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 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. Proposed rule will continue 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.

  • AC21 job portability for certain adjustment of status applicants: Proposed rule will conform 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 proposes to amend 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 proposed rule. This will include cases where the initial petitioning employer has gone out of business since the I-140 approval. New supplemental form for I-485 portability cases along with written attestations. Same or similar language from recent proposed USCIS memo also incorporated in proposed rule.

  • AC21 H-1B portability: Clarifies current USCIS interpretation that H-1B portability only applies to H-1B workers in the U.S. 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.

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

  • H-1B cap exempt employers: Proposed 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.

  • 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.

  • 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. DHS is also proposing a one-time 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 and TN categories.

  • I-140 employment authorization in compelling circumstances: Proposed rule 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 criteria are met. Such requirements include establishing compelling circumstances such as medical issues or other emergencies, employees engaging in protected conduct who fear retaliation from the employer, other economic harm facing the employee or employer. 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 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. Although compelling circumstances is left undefined in the proposed rule to provide flexibility for the skilled worker, several examples of what might be a compelling circumstance are outlined by DHS in the proposed rule. Extensions of the one-year period of employment authorization are extremely limited and an individual will be ineligible for such employment authorization if convicted of any felony or two or more misdemeanors. 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.

  • H-1B licensing: Proposed rule will follow 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 or employment authorization. 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-automatic extensions in certain circumstances: Under the proposed rule, DHS will 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 proposed 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.

  • This is a proposed rule with comments being accepted until February 29, 2016.

  • A copy of the proposed rule is available on the Federal Register website under “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, December 31, 2015.”

Highlights of Final Rule on H-1B1 and E-3 Workers and EB-3 Outstanding Researchers/Professors:

  • Continued employment of H-1B1 workers from Chile and Singapore and E-3 workers from Australia while extension of status pending with USCIS: Allows E-3, H-1B1 and CW-1 (Commonwealth of the Northern Mariana Islands) nonimmigrant workers to continue employment for up to 240 days while a timely filed extension request is pending with USCIS.

  • E-3 and H-1B1 workers are work authorized incident to status: Clarifies that E-3 and H-1B1 workers are work authorized incident to status; regulations amended to add H-1B1 and E-3 workers to the list of nonimmigrant workers that can extend or change their nonimmigrant status in the U.S.

  • Comparable evidence for EB-1 outstanding researcher/professors: EB-1 regulations modified to allow “comparable evidence” to be allowed as initial evidence for outstanding researchers and professors. Provides for greater flexibility in initial evidence to be presented to USCIS for these highly skilled workers and aligns with comparable evidence that can be presented in the EB-1 extraordinary ability category.

  • This final rule is effective on February 16, 2016. Proposed rule initially published on May 12, 2014.

  • A copy of the final rule is available on the Federal Register website under “Enhancing Opportunities for H-1B1, CW-1, and E-3 Nonimmigrants and EB-1 Immigrants, January 15, 2016.”

Conclusion / Upcoming Webinar

As outlined above, DHS/USCIS is taking comments on the December 31, 2015, proposed rule until February 29, 2016. At this time, it is hard to know whether the proposed rule will be released as outlined or if changes will be incorporated by the government after comments are reviewed. With the change in administration coming in 2017, it is likely that this proposed rule will become final in the coming months once any comments are reviewed and incorporated.

Please watch for details on an upcoming Live Webinar scheduled for Tuesday, February 2, 2016, that will discuss the proposed rule and information outlined above.

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