More details on High Skilled Worker regulation
On 11/18/2016 the USCIS published a final rule to modernize and improve several aspects of certain employment-based nonimmigrant and immigrant visa programs. USCIS also amended 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.
As a reminder, this rule goes into effect on January 17, 2017.
I reviewed the regulation over the weekend and provide this summary of the key aspects.
- This is not the I-140 EAD rule that had been hoped for. It has been significantly scaled back to the point where it will only benefit very few.
- Requirements for I-140 EAD are:
- Applicant in E-3, H-1B, H-1B1, O-1 or L-1 status.
- Applicant has approved I-140, but Priority Date is not current based on "final action" date.
- There are compelling circumstances that would warrant the discretionary grant of an EAD valid for 1 year.
- What are compelling circumstances?
a. Serious illness or disability of principal employee or spouse,
b. Employer retaliation against employee resulting in termination,
c. Substantial harm to employee (e.g. employer goes out of business and there are no similar industry in home country, or it would be a hardship for the family to return to the home country), OR
d. Significant disruption to the employer (e.g. can't extend L-1 status beyond the 5- or 7-year maximum).
- May seek 1-year renewals if compelling circumstances continue OR employee's priority date is backlogged by less than 1 year (based on final action date).
- Dependents may also apply for I-140 EAD, if eligible.
- The "compelling circumstances" must be beyond the control of the employee. For example, employer restructures in a way that would invalidate the L-1 status of its employees. Or, non-profit company restructures to become for-profit, invalidating the H-1B cap-exempt status of its employees.
- The I-140 EAD does not include a grant of Advance Parole so international travel will not be permitted.
- The I-140 EAD is only a temporary solution and in most cases, the applicant will need to revert to nonimmigrant status again.
Nonimmigrant Grace Periods
- The 10-day grace period that has been available to H-1B, O and P employees is now being extended to those in E-1, E-2, E-3, L-1 and TN status and their dependents.
- This will permit employees in those statuses to be admitted to the U.S. up to 10 days before the petition start date.
- The USCIS will now recognize a formal grace period of up to 60-days following the termination of employment for individuals in E-1, E-2, E-3, H-1B, H-1B1, L-1, TN and O-1 status.
- The concluding grace period is valid for 60-days or until the petition end date, whichever comes first. So, if H-1B petition expires on 06/30/2017 and the H-1B employee is terminated on 05/15/2017, the employee's grace period will only be 6 weeks.
- This grace period is to permit the employee additional time to find a new employer/petitioner or to depart the U.S.
- Only one 60-day grace period is permitted within an authorized period of stay. For example, if H-1B petition is valid from 10/01/2016 through 09/30/2019 and employee is terminated on 01/01/2017 and uses the 60-day grace period to find a new employer who files an H-1B petition, if that employer were to withdraw the petition before it were approved, the employee would not be eligible for another 60-day grace period.
- Under the H-1B portability provision, an H-1B employee may begin working for a new employer upon the filing of the H-1B petition, this does not apply to those in E-1, E-2, E-3, H-1B1, L-1, TN or O-1 status.
- An automatic 180-day extension has been implemented for EAD extensions filed under 15 categories.
- The EAD categories that will be of most interest to you are:
a. Applicants for adjustment of status (I-485)
b. Temporary Protected Status
- Individuals applying for EAD renewals in one of the 15 categories will be permitted to keep working for up to 180 days following the expiration of their current EAD card as long as they have filed an application for a renewal before the current EAD expired.
- EAD renewals may now be filed up to 180 days before the expiration, rather than just 120 days.
- The 90-day EAD adjudication rule is being eliminated. This means that the USCIS is no longer required to process EAD applications within 90-days.
- In cases where the automatic 180-day extension does not apply, it will be important to file the EAD renewal application as early as possible to avoid any gaps in employment.
- The automatic 180-day extension does not apply to EADs for those in H-4, L-2, E or J-2 status. As in-country extensions for H, L and E employees are taking 6+ months, this means that an EAD renewal for dependents in H, L and E status will not be processed until the extensions have been approved so extensions may need to be filed under Premium Processing to avoid a gap in employment for spouses.
- F-1 STEM OPT extensions already have their own automatic 180-day extension that is covered under a separate regulation. There are no changes to that regulation.
- The automatic 180-day EAD extension does not apply to Advance Parole. So, adjustment applicants who have a combined EAD/AP card cannot use the EAD/AP card for re-entry to the U.S. following the expiration date listed on the card.
I-9 Employment Authorization and Reverification for EAD extensions
- For EADs subject to the automatic 180-day extension, employment authorization may be temporarily re-verified using:
- The expired/expiring EAD card, AND
- Form I-797C (Receipt Notice) for an EAD renewal for the
same EAD category as the initial one.
- Upon the 180th day following the expiration of the initial EAD, the individual's employment authorization must again be re-verified. At this time the employee must have either the new EAD card or some other form of employment verification.
- This has also been scaled back significantly from what was initially hoped, which was that an individual with an approved I-140 could change employers without the new employer having to re-do green card sponsorship. That is not the case under the new regulation. The new employer will need to re-sponsor the employee. In order to file Form I-485, an employee must have an approved I-140 filed by the current employer.
- I-485 Portability is permitted when:
a. There is an approved I-140 on behalf of the employee.
b. The employee's I-485 application has been pending with the USCIS for at least 180 days and has not been approved.
c. The employee is taking a new position that is "the same or similar" to the position on which the green card process was based.
- New Supplement J to form I-485 must be filed where an employment-based applicant changes jobs/employers at the I-485 stage. This does not apply to NIW or Extraordinary Ability petitions, which are self-sponsored.
- Supplement J has not yet been created by the USCIS, but should help with determining "same or similar occupations," which are based on the occupational classification under which the Department of Labor (DOL) has classified the position (e.g. Mechanical Engineer, Software Engineer, etc.). This should reduce the number of green card sponsorships that must be re-done when an employee changes jobs with the same employer.
- The new regulation codifies the long standing practice that an employee's priority date is established by the filing of a PERM application OR an I-140 (in cases where a PERM is not required such as NIW, EB1A, EB1B).
- Priority date may not be retained if the USCIS subsequently revokes the I-140 due to fraud, misrepresentation or material error.
- Priority date may be retained if I-140 is withdrawn by petitioner or petitioner goes out of business 180 days or more following I-140 approval. This also means that an H-4 EAD can be based on a prior I-140 approval that has since been withdrawn by the petitioner.
- Approved I-140 filed by a prior employer cannot be the basis for the filing of an I-485 application. There must be a valid "offer of employment" in the form of an approved I-140 filed by the current employer at the time that the I-485 is filed.
- The long-standing H-1B portability provision has finally been codified in the new regulation. It permits an H-1B employee to begin working for a new employer once the USCIS has received an H-1B petition filed by the new employer. The Receipt Notice need not have been received.
- The H-1B beneficiary must have been in H-1B status and must not have worked without authorization.
- "Piggy-backed" or "bridged" H-1B petitions are also eligible for H-1B portability, but the earlier petition(s) must be approved in order for the subsequent petitions to be approved. For example, Employer A files an H-1B petition on behalf of employee and employee begins working for Employer A. Before Employer A's H-1B petition has been approved by the USCIS, Employer B files an H-1B petition and employee starts working for Employer B. In this scenario, in order for Employer B's request for a Change of Employer to be approved, Employer A's petition must first be approved. If Employer A withdraws the petition once employee leaves, this will impact Employer B's petition.
H-1B licensure requirements
- H-1B petition may be approved on behalf of an employee who requires licensure (e.g. health care workers), but has not obtained the required license as long as he/she is working under the supervision of licensed senior or supervisory personnel.
- Must provide evidence of duties, identity, physical location, and credentials of the supervisor.
- The USCIS should also approve H-1B petitions in circumstances where licensure could not be obtained due to lack to a SSNo., employment authorization or other similar technical requirement.
- H-1B petitions in these cases should be approved for 1 year only.
H-1B Exempt from Quota
- Non-Profits are exempt from the H-1B quota if:
a. There is a written affiliation between the non-profit and an institute of higher education/university, OR
b. The non-profit is related to a university (e.g. through shared ownership, operated by university, or attached to university as a member, branch, cooperative or subsidiary).
- Government research organizations exempt from the H-1B quota have been extended to include State and Local research entities, as well as Federal research entities.
- The H-1B employee may be employed at the non-profit or government research entity, not necessarily by the entity. This means that individuals employed through staffing companies may also take advantage of this rule.
Exemptions to maximum H-1B period of admission
- Recapture of H-1B time may be requested at any time, not just toward the end of the 6-year H-1B period.
- For H-1B extensions beyond the 6th year, there must be a PERM or I-140 petition filed at least 365 days before the date the extension would start.
- Once the priority date becomes current, an individual must file I-485 (or apply for immigrant visa if outside the U.S.) within one year of the priority date becoming current. H-1B extensions will no longer be permitted at that time.
- For H-1B extensions beyond the 6th year, the priority date must have been backlogged at the time that the H-1B petition was filed. If it later becomes current at the time that the USCIS is actually adjudicating the petition, it will not prevent the USCIS from approving the extension.
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If you have any questions or concerns about the information provided in this email, please don't hesitate to contact me.
Law Office of Leila Freijy PLLC
Leila Freijy, Esq.
3150 Livernois Rd #103
Troy, MI 48083