A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Monday, January 4, 2016

Sweeping Proposal to Provide 60-Day Grace Period, 180-Day EAD Extension & Other Flexibilty Provisions to High-Skilled Workers


As a New Year's present to foreign high-skilled workers, the DHS published a lengthy proposal in the Federal Register, dated December 31, 2015, to implement a number of new flexibility provisions and also codify some current policies pursuant to American Competitiveness in the Twenty-first Century Act of 2000 (AC21) and American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), as part of the Obama Administration's immigration reform plan.  


The proposed rules, entitled "Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers," are about 180-page long and touch on many areas of foreign workers' immigration process and immigration status.   The following is a summary of the most important changes, grouped under two categories: New Rules and Existing Policies Clarified.

NEW RULES

  • Automatic Revocation of Approved I-140 Petition Removed:  Currently an approved I-140 is revoked automatically under certain conditions (invalidation of the labor application, death of the petitioner or beneficiary, withdrawal by petitioning employer, and termination of the petitioning business).  USCIS will no longer automatically revoke or cancel an approved I-140 petition once the I-140 petition has been approved for 180 days or more, unless there is evidence of fraud, misrepresentation, invalidation or revocation of the labor application or USCIS error.   Even when the petitioning employer requests for cancellation, the approved I-140 will continue to be valid for the purposes of retention of priority date, job portability and extension of H-1B status.  8 CFR 205.1(a)(3)(iii)(C) and (D). 
  • Extension of 10-Day Grace Period to E, L & TN Visas:  Currently H-1B workers may enter the U.S. 10 days before their H-1B employment begins and also remain here for 10 more days after their H-1B employment terminates.  DHS proposes to extend these 10-day grace periods to other visa classifications including the E, L visas and also TN classification.  8 CFR 214.1(l)(i). Employment is not authorized during these grace periods.  
  • 60-Day Grace Period for E, H-1B, L, TN & H1B1 Workers:  DHS proposes a one-time grace period of 60 days for these nonimmigrant workers to allow them time to seek new employment, apply for another visa status or prepare to depart from the U.S. when their employment is terminated.  The grace period would be for up to 60 days or until the existing validity period ends, whichever comes first. 8 CFR 214.1(l)(ii).  Dependents are also eligible for the grace period. Employment is not authorized during the grace period. 
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  • Emergency EAD for Compelling Circumstances:  DHS proposes to allow certain foreign workers to apply for employment authorization for one year if they meet four criteria: "(1) The individual is currently in the United States and maintaining E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status; (2) the individual is the beneficiary of an approved immigrant visa petition under the EB-1, EB-2 or EB-3 classification; (3) the individual does not have an immigrant visa immediately available; and (4) the individual can demonstrate to the satisfaction of DHS compelling circumstances that justify an independent grant of employment authorization." 8 CFR 204.5(p)(1).  Compelling circumstances have not been defined but may include serious illnesses and disabilities, employment retaliation, and other substantial harm to the applicant or his family (e.g., inability to seek employment in home country), and significant disruption to the employer.  The dependent family members would also be eligible for such an EAD.  Extensions are also possible.  However, there are two caveats.  First, the proposal would "generally require the worker to forgo adjusting status in the United States and seek an immigrant visa abroad through consular processing.   Secondly, in order to apply for such an emergency EAD, the foreign worker's immigrant visa priority date must be less than one year from the current cut-off date at the time of the application.  
  • Automatic Extensions of EAD:  DHS proposes automatic extension of a person's EAD for up to 180 days upon filing of an extension I-765 application prior to the expiration of the current EAD. The extension must be based on the existing authorization category and does not require adjudication of another application.  8 CFR 274a.13(d)(1).  Some eligible categories include refugees, asylees, individuals granted withholding of deportation / removal, TPS recipients, individuals with pending I-485 applications, etc. 

EXISTING POLICIES CLARIFIED
  • Three-Year H-1B Extensions:  Section 104(c) of AC21 authorizes approval of H-1B status beyond the general 6-year maximum period if an immigrant visa is unavailable to the beneficiary due to per-country cap limits in the applicable visa category.  The proposed rule codifies this section and clarifies that extensions can be granted multiple times until an immigrant visa number becomes available to the beneficiary. Further, extensions can be granted regardless of whether the beneficiary is current in H-1B status or physically present in the U.S. However, dependent beneficiaries are not covered by this rule. 8 CFR 214.2(h)(13)(iii)(E)(1).
  • One-Year H-1B Extensions:  Section 106(b) of AC21 authorizes approval of 1-year extensions of H-1B status beyond the 6-year maximum period if 365 days have passed since the filing of labor application or immigrant visa petition by an employer on behalf of the beneficiary.  This current rule is codified in the proposed regulation.  8 CFR 214.2(h)(13)(iii)(D)(1).  These extensions would generally be granted until a final decision has been made on the underlying labor application or immigrant visa petition.  A denied case under appeal is not considered a final decision.  However, extensions would not be granted to expired labor applications. Further, DHS proposes that the beneficiary must file an I-485 adjustment of status application within one year of visa number becoming available. (This is a new rule) 8 CFR 214.2(h)(13)(iii)(D)(10).  However, failure to timely file the I-485 can be excused or tolled due to unavailability of visa numbers, visa retrogression, or other valid reasons beyond the control of the beneficiary. 
  • Ability to Change Jobs after Filing of I-485:   Under AC21 Section 106(c), visa applicants may change jobs or employers if an I-485 adjustment application has been properly filed and remains pending for 180 days or more.   The new rule continues to require that the new job offer must be "in the same or a similar occupational classification."  The new rule clarifies that the new job offer may be from the original petitioner, a different U.S. employer, or based on self employment. 8 CFR 245.25(a).  The intent of the parties at the time of filing will be used to determine the bona fides of the job offer.
  • Ability of H-1B Workers to Change Jobs and Employers:   The new regulation implements Section 105(a) of AC21, which allows H-1B employees to change jobs or employers by allowing them to work immediately upon filing of a non-frivolous amendment or extension H-1B petition.   8 CFR 214.2(h)(2)(i)(H).  However, employment authorization ceases if the H-1B petition is denied pursuant to section 214(n) of the INA.  This portability provision is only available to H-1B workers who are in the U.S. in H-1B status (contrast this with the other AC21 extensions).   Further, if there are several "bridge petitions", denial of a preceding H-1B petition will result in the denial of any requests for extension in the subsequent petitions.   8 CFR 214.2(h)(2)(i)(H)(3).
  • Recapture of Days Spent Outside of the U.S.:   In regards to the calculation of maximum period of time of authorized admission for H-1B workers, the current policy allows recapturing of any days that the beneficiary spent outside of the U.S.  The new rule will codify this current policy without changes.  8 CFR 214.2(h)(13)(iii)(C). Any trip of at least 24-hour duration may be recaptured. 
  • Employment at Exempt Organizations for H-1B Cap:   Certain employers such as institutions of higher education and nonprofit research organizations are exempt from the H-1B quota restrictions.  The new rule codified the current policy that employment "at" (not just "by") such qualifying organizations are also exempt as long as (1) the employment is located at a qualifying institution; and (2) the H-1B worker will perform duties that "directly and predominately further the normal, primary, or essential purpose, mission, objectives or function" of the qualifying organization.  8 CFR 214.2(h)(8)(ii)(F)(4).
  • Exempt Affiliated or Related Nonprofit Entities:   The definition of these affiliated or related nonprofit entities is expanded in the proposal, which would include also those nonprofit organizations that have entered into formal written affiliation agreements with institutions of higher education if these entities also (1) "establish an active working relationship with the institution of higher education for the purposes of research of education"; and (2)  "establish that one of their primary purposes is to directly contribute to the research or education mission of the institution of higher education."  8 CFR 214.2(h)(8)(ii)(F)(2)(iv) and (h)(19)(iii)(B)(4).
  • Whistleblower Protection of the H-1B Workers:   The current policy protects H-1B workers who encounter retaliations as a result of their filing of a complaint against their employers' LCA violations. Under the proposed rule, documentary evidence regarding any retaliatory action from the beneficiary's employer (or former employer) can be submitted with an H-1B petition. 8 CFR 214.2(h)(20).  This evidence can be used as the basis to excuse any loss of or failure to maintain H-1B status by the beneficiary in relation to such retaliations as an “extraordinary circumstance” under 8 CFR 214.1(c)(4) and 248.1(b). 




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