• USCIS Proposes Rules Changes for Employer-Sponsored Foreign Nationals
  • January 26, 2016
  • Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office
  • In a proposed regulation published in the Federal Register on December 31, 2015, USCIS is seeking to ease job changes by foreign nationals in the employment-based permanent residence process, establish grace periods for nonimmigrants whose employment has been terminated early, and provide automatic work authorization extensions to adjustment applicants and certain other classes of foreign nationals who have timely filed an application for the renewal of an employment authorization document.

    The proposed regulation interprets provisions of two longstanding laws, the American Competitiveness in the 21st Century Act (AC21), enacted in 2000, and the American Competitiveness and Workforce Improvement Act (ACWIA), enacted in 1998. It is the latest of the Obama Administration’s executive actions on employment-based immigration and is intended to further the Administration’s goal of enabling U.S. businesses to retain and develop highly-skilled workers, reducing the burdens of lengthy immigrant visa backlogs on employment-based adjustment applicants, and removing restrictions on job mobility.

    The agency is accepting public comments on the proposed rule through February 29, 2016. None of the proposals will take effect until a final version of the rule is published later this year.

    PROPOSALS AFFECTING EMPLOYMENT-BASED ADJUSTMENT APPLICANTS AND FORM I-140 BENEFICIARIES

    The proposed rule would establish a range of benefits for beneficiaries of Form I-140 immigrant worker petitions and impose new procedures on adjustment applicants and their employers.

    Job portability procedures for employment-based adjustment applicants. The portability provisions of AC21 permit adjustment applicants to change jobs without the need for a new labor certification and Form I-140 immigrant worker petition, provided that their adjustment has been pending unadjudicated for 180 days or more and their new employment is in “the same or a similar occupational classification” as the position described in the original labor certification and Form I-140.

    The proposed regulation would require adjustment applicants who have changed jobs to submit a supplement to their Form I-485 adjustment application, describing the new position and demonstrating that it meets the requirements of the portability statute. If the adjustment applicant has not changed jobs, he or she would need to confirm the continued existence and bona fides of the original I-140 job offer. A written attestation signed by the applicant and the original or new employer would be required. The foreign national could file the supplement affirmatively or in response to a request from USCIS during the adjudication of the adjustment application.

    The regulation would also codify definitions of “same” and “similar” occupational classifications, consistent with a draft memorandum that USCIS recently released for public feedback.

    Employment authorization for certain approved I-140 beneficiaries. The regulation would allow certain beneficiaries of an approved I-140 petition, and their spouses and unmarried dependent children, to apply for a one-year employment authorization document (EAD), though in very limited circumstances.

    To qualify, the principal foreign national would have to demonstrate that (1) he or she is maintaining E-3, H-1B, H-1B1, L-1 or O-1 nonimmigrant status at the time the application for employment authorization is filed; (2) he or she is the beneficiary of an approved Form I-140 petition; (3) an immigrant visa is not immediately available to him or her; and (4) there are compelling circumstances justifying the grant of employment authorization. A foreign national would not be eligible for employment authorization if his or her priority date is more than one year beyond the cutoff date for immigrant visa issuance for his or her preference category and country listed in the State Department Visa Bulletin in effect at the time the application for employment authorization is filed, or if he or she has been convicted of a felony or two or more misdemeanors.  

    The proposed rule would not define “compelling circumstances” for purposes of EAD eligibility, but USCIS offers several examples in explanatory material to the rule, including:
    • A medical or other emergency to the beneficiary or a family member, which entails relocation to a different geographic area for treatment or some other substantial change in employment circumstances;
    • Employer retaliation against the foreign national for engaging in protected conduct, such as filing a complaint alleging that the employer failed to comply with its immigration obligations;
    • Significant disruption to the employer, such as where the foreign national is a critical employee, the employer has no other means of immediately employing him or her in the United States and would suffer significant business harm; or
    • Significant harm to the foreign national, though this would not include merely having exhausted the statutory maximum of his or her current nonimmigrant status.
    To obtain the EAD, the foreign national would be required to relinquish his or her underlying nonimmigrant classification. To renew the EAD, the foreign national would need to show that the compelling circumstances persist or that his or her priority date is one year or less from the cutoff date specified in the Visa Bulletin in effect at the time the EAD renewal application is filed.

    Limitation on automatic revocation of certain approved I-140 petitions. Current regulations provide that an approved I-140 petition is automatically revoked by USCIS if the sponsoring employer withdraws the petition or the sponsor’s business is terminated. Under the proposed rule, an I-140 that has been approved for 180 days or more would not be automatically revoked solely on the basis of withdrawal by the employer or termination of the petitioner’s business. The foreign beneficiary would be able to rely on the petition approval for retention of his or her priority date, I-140/adjustment job portability (provided that the foreign national meets all other portability requirements) and for extensions of H-1B status beyond the statutory six-year maximum, unless the revocation was for reasons of fraud, material misrepresentation, invalidation or revocation of the underlying labor certification, or USCIS error.

    Priority date retention for approved I-140 beneficiaries. The regulation would clarify that an I-140 beneficiary whose approved petition is later revoked could use his or her priority date for a subsequent I-140 petition unless the reason for revocation was fraud, material misrepresentation, invalidation or revocation of the underlying labor certification, or USCIS error. This means that the foreign national could rely on an earlier priority date for a subsequent immigrant petition in most cases if the original petitioner withdrew the I-140 or the petitioner’s business was terminated less than 180 days after approval.

    H-1B PROVISIONS

    H-1B cap exemption for certain classes of employer.
    Under current law, there is an H-1B cap exemption for institutions of higher education and their related or affiliated nonprofit organizations, nonprofit research organizations and governmental research organizations. The exemption applies in two ways: (1) where the H-1B beneficiary is employed directly by the cap-exempt organization; or (2) where the beneficiary will be employed at a cap-exempt organization but sponsored by an employer that would ordinarily be subject to the cap. The cap exemption extends to H-1B beneficiaries who are employed concurrently at a cap-exempt organization and by a cap-subject employer.

    The proposed rule would expand the definition of “related or affiliated nonprofit entity” to extend the cap exemption to nonprofits with less formal, but still bona fide, affiliations with institutions of higher education than are recognized under current rules. USCIS would include nonprofits that have a written affiliation agreement with an institution of higher education, provided that the nonprofit can show that it has an “active working relationship” with the institution for the purposes of research or education and that one of the primary purposes of the nonprofit is to directly contribute to the research or education mission of the higher education institution.

    However, the proposed regulation would limit the cap exemption when the petitioner is an employer that would ordinarily be subject to the cap. In such cases, the employer would be required to demonstrate that the majority of the H-1B beneficiary’s duties would be performed at the qualifying cap-exempt institution and that those duties directly and predominantly further the essential purpose of the institution. Furthermore, if the foreign national is concurrently employed by cap-subject and cap-exempt employers, termination of the cap-exempt employment could lead to revocation of the non-cap exempt employment unless the beneficiary was previously counted against the H-1B cap.

    H-1B portability. The proposed regulation would specify that H-1B portability is available only to foreign nationals in H-1B status when the petition for new employment is filed.

    H-1B extensions beyond the sixth year. Under AC21, an H-1B nonimmigrant is eligible for an extension beyond the standard six-year maximum either (1) in three-year increments, if the foreign national is the beneficiary of an approved I-140 petition but is subject to immigrant visa backlogs; or (2) in one-year increments, if 365 days have elapsed since the filing of a labor certification or I-140 petition on the foreign national’s behalf.

    The proposed rule would codify the agency’s longstanding policies on post-sixth year extensions, with some additional clarifications:
    • Both the one-year and the three-year extensions would be available to foreign nationals who are not currently in H-1B status, as long as they previously held that status and remain eligible for an additional period of H-1B admission.
    • To remain eligible for an extension, an H-1B would be required to file an application for adjustment of status or an immigrant visa within one year of an immigrant visa becoming available to him or her. If the foreign national’s employment-based preference category retrogressed within a year after becoming available, the foreign national would have a new one-year period within which to file when visa numbers again became available.
    • The one-year extension would cease to be available if the labor certification is no longer valid at the time of the extension filing.
    • As noted above, an H-1B whose approved I-140 petition was withdrawn 180 days or more after approval would remain eligible for a three-year extension unless the I-140 was revoked for reasons of fraud, material misrepresentation, USCIS error or revocation or invalidation of the underlying labor certification.
    H-1B nonimmigrants and licensure requirements. Under current regulations, where a foreign national must have a state license to perform the duties of the H-1B position, USCIS cannot approve the petition unless the license has been issued. The proposed rule would allow a petitioner to meet the licensure requirement by demonstrating that the foreign national has filed a request for the license but is unable to obtain it because a Social Security Number or employment authorization is required. DHS would be authorized to approve the H-1B petition of the unlicensed foreign national if he or she will work in a state that allows the unlicensed to work in the occupation under the supervision of licensed senior or supervising personnel. If approved, the petition would be valid for one year, and could not be extended unless the state license had been granted.

    H-1B whistleblower protections. Current law prohibits employers from taking retaliatory action against employees who provide information concerning a violation of the employer’s labor condition application (LCA) obligations or cooperate in an investigation or proceeding pertaining to the employer’s LCA compliance. Consistent with current law, the proposed regulation establishes that an H-1B who faced unlawful retaliatory action can be sponsored for an H-1B extension or a change of status to another nonimmigrant category.

    GRACE PERIODS FOR CERTAIN NONIMMIGRANT CLASSES


    Sixty-day grace period after employment termination. USCIS would establish a 60-day grace period that would preserve the status of E-1, E-2, E-3, H-1B, H-1B1, L-1 and TN nonimmigrants whose employment is terminated early. The grace period would be available one time per authorized nonimmigrant validity period and would permit the foreign national to seek new employment or, in the H-1B context, to port to new employment. During the grace period, foreign nationals would not be eligible to work, though an H-1B nonimmigrant could begin new H-1B employment as soon as a new employer files a nonfrivolous portability petition, as under current law.

    DHS would be authorized to eliminate or shorten the 60-day grace period on a case-by-case basis.

    Ten-day grace period before and after petition validity. Approved E-1, E-2, E-3, L-1 and TN nonimmigrants would have ten days before their petition start date to enter the United States and ten days after the petition expiration date to seek new employment or prepare for departure, which is currently permitted for H-1B nonimmigrants only. As in the H-1B context, these foreign nationals would not be permitted to work during these grace periods.

    EMPLOYMENT AUTHORIZATION DOCUMENT VALIDITY AND PROCESSING

    Automatic extension of EAD validity. USCIS is proposing to grant an automatic 180-day work authorization extension to certain foreign nationals who timely file their applications for EAD renewal. The extension would be available to a limited pool of foreign nationals, including adjustment applicants, applicants for extension of Temporary Protected Status, asylees and asylum applicants, refugees and self-petitioning victims of domestic abuse under the Violence Against Women Act. Automatic EAD extension would not be available to H-4, L-2 or E nonimmigrant spouses seeking renewal of employment authorization. DHS would be authorized to terminate the automatic extension through a written notice to the applicant or with respect to a class of foreign nationals through a notice in the Federal Register.

    The regulations would be amended to allow employers to accept an expired EAD and a receipt notice for an EAD renewal when completing Form I-9 for employees eligible for the automatic extension.

    Elimination of EAD processing time limits.
    USCIS would eliminate current regulations that require the agency to process EAD applications within 90 days and grant interim employment authorization to those with an EAD application pending for more than 90 days. As a practical matter, USCIS ceased granting interim EADs many years ago and frequently takes 120 days or more to adjudicate EAD applications.

    Employers interested in commenting on the proposed regulation should contact their designated Fragomen professional or the firm’s Government Strategies Group.