New Rule Affecting Retention of EB-1/EB-2/ EB-3 Workers

An Explanation of the U.S. Immigration Rule  “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers” of January 18, 2017

On January 18, 2017, USCIS published a new ruling designed to clarify DHS policies and enable U.S. employers to retain high-skilled workers.

An initial goal of the ruling is to codify regulations with longstanding policies and practices with the aim of improving employee portability and enhancing the employers’ ability to hire and retain employees during the immigration process.

The rule adds much needed fixes such as adding grace periods after termination and the ability to change employers during the green card process.

Highlights of the new provisions and benefits outlined in the final rule include the following:

1. 10-day grace periods before and after visa periods.

The final rule provides two periods of up to 10 days, like those already available to H-1B and O-1 visa holders, to E-1, E-2, E-3, L-1, and TN visas. The rule provides time to enter the United States and prepare to begin employment in the US. A second period of up to 10 days after the end of the expiration or termination provides time to depart or extend, change, or otherwise maintain lawful status.

Billie Jean Vandeweghe, a New Zealand tennis coach, didn’t get her new passport until three days after her visa expired. Because of the new rule, she’ll be able to stay in the US and apply for an extension of her O-1 visa without going out of status.

2. 60-day grace periods to find additional positions if resigns or is terminated.

The final rule provides a grace period of up to 60 consecutive days during each authorized period for E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN visa. This period allows workers to pursue new employment or find another job if they leave employment or are fired. They will be eligible for other employment visas with a new employer or may change their status to another visa status. Note: Grace period only protects lawful stay but not the ability to work.

Rodrigo Gonzalez, a Mexican graphic artist on a TN-1 visa, was terminated from his position at a Los Angeles based IT company when the company downsized.  Under this new rule, he’ll be able to remain in the US for 60 days while he searches for a new employer. Rodrigo will not be able to work until the visa is approved. He can utilize premium processing to obtain this in fifteen days.

3. Counting against the H-1B cap.

The final rule clarifies how H-1B holders are counted against the annual H-1B numerical cap, including calculating time spent outside the US. This could extend an H-1B visa and the method for determining which H-1B holders are “cap-exempt” as a result of previously being counted against the cap.

Ross Geller holds an H-1B visa as a paleontologist . He returned to his native France for 30 days last March to care for his ill mother. Ross can recapture these days in an extension of his H-1B visa.

4. H-1B portability

The final rule permits H-1B workers to change jobs or employers, including:  beginning employment with new H-1B employers upon the filing of non-frivolous petitions for new H-1B position and permitting H-1B employers to file successive or “bridge petitions.”

Angus Barnaby, a British  pharmacist at a small pharmacy in Oshkosh, Wisconsin received an offer to work as a pharmacist at Greenwalls, a national chain, at their Miami Beach location. It is the dead of winter in Wisconsin and the job starts in  three weeks.  Under this rule, Angus can begin work as soon as his new H-1B position is received by USCIS, he does not have to wait for it to be approved, which can take months.

5. H-1B cap exemptions

The final rule revises the definition of being related or affiliated with a nonprofit entity to clarify and improve the determination of whether H-1B petitions are exempt from the numerical cap due to employment at an institution of higher education, a nonprofit entity related to or affiliated with such an institution, or a governmental or nonprofit research organization.

Dr. Cam Golgi has accepted a research position with Evo biolabs, an industry leading research facility with has the same regents as the University of Colorado. Because the research center is affiliated with an institution of higher education, Golgi’s visa will be cap exempt.

6. Protections for H-1B whistleblowers

The final rule provides protection to H-1B visa holders who provide information to investigations regarding violations of Labor Condition Application (LCA) to demonstrate that their failure to maintain H-1B status was due to “extraordinary circumstances.”

Yo Mang, a booking agent in the music industry, reported her employer, Howie Productions, did not pay her the prevailing wage as indicated in her H-1B visa petition. Howie retaliated by terminating her. Under the new rule, Yo would be allowed to remain in status while she searched for a new employer.

7. H-1B with temporary licenses

The final rule allows for the temporary approval of an H-1B petition for an otherwise eligible unlicensed worker, if the petitioner can demonstrate that the beneficiary is unable to obtain the license before obtaining H-1B status. The final rule also clarifies the types of evidence to support approval of an H-1B petition on behalf of an unlicensed worker.

Dr. Ameen Shah has been offered a surgeon position at an Arkansas hospital.  He is not licensed in Arkansas to practice medicine. He cannot obtain the license he’s qualified for without having a preexisting H-1B status. The new rule would allow Arkansas’ medical board to issue Dr. Shah a temporary license to obtain the H-1B prior to obtaining a full state medical license.

8. H-1B extensions under AC21

The final rule allows H-1B visa holders who are being sponsored for permanent residency (Green card) status, and their dependents, to extend their H-1B visas beyond the otherwise applicable 6 year limit pursuant to AC21.

Chai Patel is an Indian programmer for a Chicago based telecom. He has an approved I-140 for a Green Card. As an Indian his priority date for an EB-2 is not until 2008. His H-1B visa is being extended in one-year increments while he waits for his green card to be authorized. Currently he has been in H-1B status for 3 years. He can continue to obtain extensions while his green card is processing. As indicated in other new rules, he can actually move employers and obtain a new H-1B.

9. Green Card portability

The final rule permits certain Green Card beneficiaries with I-140 Petitions that have been approved for more than 180 days to change employers during the process.

Chai decides to leave the telecom and accept a programming position at a gaming company in New York.  Because his I-140 has been approved for more than 180 days, he will be allowed to change employers while he continues to await his Green Card approval.

10. Form I-140 petition validity

The final rule clarifies the circumstances under which an approved Immigrant Petition for Alien Worker (Form I-140 petition) remains valid. The form remains valid after the employer withdraws the petition or the business terminates. In addition, the form remains valid for purposes of status extension applications filed on behalf of the beneficiary, job portability of H-1B nonimmigrants, and job portability under section 204(j) of the Immigration and Nationality Act (INA).

Chai’s previously approved I-140 for the telecom company will not be automatically revoked as it would have been prior to the new rule and he can continue to apply for extension of his H-1B visa in one year increments.

11. Establishment of priority dates

The final rule is consistent with existing DHS practice in establishing priority dates for EB-1 category. EB-1 priority dates are upon filing of the I-140.

12. Retention of priority dates

The final rule permits workers to retain priority dates from previously approved Form I-140 petitions. Priority date retention is available as long as the approval of the initial Form I-140 petition was not revoked for fraud, willful misrepresentation of a material fact, the invalidation or revocation of a labor certification, or material error. Permits workers to accept promotions, change employers, or pursue other employment opportunities without losing their place in line for immigrant visas.

When Chai files the form I-485 J to indicate his new employer, as indicated in another rule below, he will maintain the same priority date he was provided when he filed his labor certification for his EB-2 Green Card three years ago.

13. Retention of employment-based immigrant visa petitions

The final rule provides that Form I-140 petitions for EB-1, 2, and 3 Green Card Petitions that have been approved for 180 days or more would no longer be subject to automatic revocation based solely on withdrawal by the petitioner or the termination of the petitioner’s business.

Chai’s previously approved I-140 for the telecom company will not be automatically revoked as it would have been prior to the new rule.

14. Eligibility for employment authorization in compelling circumstances

The final rule allows beneficiaries of E-3, H- 1B, H-1B1, L-1, or O-1 visas to apply for separate employment authorization for a limited period if there are compelling circumstances that, in the discretion of DHS, justify the issuance of employment authorization. Examples of compelling circumstances include illness, disability, dispute, retaliation, harm to the application, and significant disruption to the employer.

Yo Mang  was a victim of retaliation from her employer. While she is looking for a new job in her field, Yo may apply for an EAD to allow her to work for any employer.

15. Adjudication of EADs

The final rule states USCIS will no longer be bound to adjudicate Employment Authorization Document (“EAD”) applications within 90 days. To compensate for this change, USCIS permits renewal filings up to 180 days before the expiration of the EAD, rather than the current 120 day policy. USCIS indicates it will update filing time periods for renewal applications on its website. Most Importantly, USCIS will grant an automatic EAD extension of up to 180 days based on a timely filed, pending EAD renewal under the same eligibility category.

Veronica Vaughn, second grade teacher and wife of Billy Madison, a L-1 visa holder as an executive in his father’s international hotel operation, will now receive an automatic extension of her EAD. In the past she would have to wait until approval of the EAD to continue work.

16. Form I-485 Supplement J

To continue receiving eligibility for adjustment of status based on an existing or new job offer under INA 204(j), the worker is required to file a Form I-485 Supplement J and submit evidence regarding the new job offer for continued AOS eligibility, if requested by USCIS, or alternatively may proactively provide this information.

Chai will file the Form I-485 Supplement with information about his new job and the similarity of the position to the previously submitted job description.

For full text of the new rule, visit https://www.federalregister.gov/documents/2016/11/18/2016-27540/retention-of-eb-1-eb-2-and-eb-3-immigrant-workers-and-program-improvements-affecting-high-skilled