On November 18, 2016, the Department of Homeland Security (DHS) released the final version of new regulations that will go into effect on January 17, 2017 (full title – Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers). The intent of these changes is to modernize the immigration process, allow greater flexibility for companies to hire and retain skilled foreign workers and increased security for workers both on work authorized Nonimmigrant status and for those working through a Green Card process.
Please note that these updates may be eliminated – while we are hopeful this will not happen it is a possibility. The president-elect and Republican Member of Congress have both indicated that they wish to void any regulations published in the last few months of the Obama Administration, which includes the below changes. We are advising our clients on these new regulations to ensure everyone knows of the possible changes, and we will advise if they are rescinded. We expect that we will know if they are in jeopardy by the end of February 2017.
The new regulation provides updates/changes to the following:
Employment Authorization Document (EAD) adjudication: DHS is getting rid of the requirement that USCIS must adjudicate an EAD application in 90 days. In its place, they are instituting a new rule that provides an employee with 180 days of authorized employment past the expiration date of his or her EAD as long as the extension application was timely filed.
Licensing requirements for H-1B petitions: If the proposed position indicated in an H-1B I-129 nonimmigrant petition requires a license, technically the license should be obtained by the employee before he or she begins working. However, DHS is allowing the H-1B to be approved before the license is required if the employer can demonstrate that there are “technical obstacles” in the way of the license being issued and that the employee is qualified to receive the license at the time of filing. Technical obstacles include the requirement of a social security number, requirement of work authorization, and other administrative issues. This helps to clarify an area in which USCIS provided guidance that was not uniformly followed by its own staff.
10-day grace period of authorized stay: For people in E-1, E-2, E-3, L-1 and TN statuses, DHS will allow entry into the U.S. up to ten (10) days before the start date noted on the petition, and stay in the U.S. up to ten (10) days after the expiration of the petition. For example, if an employee has an L-1 approval notice that is valid from December 20, 2016 through December 19, 2019, the employee would be able to enter the U.S. in L-1 status on December 10, 2016, and would be able to stay in the U.S. through December 29, 2019. Please note that this grace period does not provide work authorization; an employee must wait to start work until the start date indicated in his or her petition/approval notice and end employment when the I-797 confirms.
60-day grace period: Nonimmigrants in H-1B, E-1, E-2, E-3, H-1B1, L-1, O-1 and TN status will be granted a 60-day grace period after their employment has been terminated or after the company ceases to exist. Essentially, DHS is granting any employees in the previously mentioned statuses a total of 60 days of unemployed status before they must return to their home country. This provides obvious flexibility to those individuals who don’t wish to leave and need time to find an alternate employer to sponsor them. It also allows employers an opportunity to immediately notify USCIS and discharge this obligation timely without fear that it will harm the outgoing employee’s status. Please note that this grace period does not include work authorization. A new petition sponsoring the employee in a nonimmigrant status must be filed by the new employer.
Clarification of non-profit: DHS has clarified the definition of a nonprofit. They have also confirmed that if an H-1B employee will spend the majority of time working for a nonprofit, he or she may be except from the H-1B cap even though he or she is not directly employed by the non-profit entity. This is a potential new tool for avoiding an H-1 Cap lottery filing.
Retention of Priority Date/I-140 petition: I-140 Immigrant Visa petitions that have been approved can no longer be revoked based on termination of employment or cessation of the company’s business operations. Once an I-140 petition has been approved, the petition is considered a valid petition for retention of priority date unless revoked by USCIS for other reasons (fraud, material misrepresentation/error, revocation of PERM by DOL, etc.). These clarifications create further protection of the Priority Date awarded during the Green Card process. Notwithstanding the protection of the priority date, the regulations also allow an employer to revoke an I-140 Petition approval within 180 days of its approval. While such a move will not revoke the Priority Date, it can impact an individual seeking to claim Adjustment of Status portability. Note – there is no positive obligation requiring an employer to revoke an approved I-140. This change also applies to businesses that cease operations.
Filing form I-485 Application to Adjust Status: DHS has created a new form meant to streamline the collection of information that proves the employee has a bone fide offer of employment at the time of adjudication – form I-485 Supplement J. The supplement is a short form that confirms that the employee is still employed in the same or similar position at the same company, or the same or similar position with a different company. DHS states in the regulations that the intent of the form is to replace the usual offer letter from the new company. Form I-485 Supplement J may be filed in the following circumstances:
-If filing form I-485 separately from form I-140;
-If requesting portability of green card process to new employer; and
-If USCIS has issued a Request for Evidence or Notice of Intent to Deny that specifically questions the offer of employment.
The introduction of this form helps answer the age old question “Do we notify USCIS in the event that an employee changes employers during an Adjustment of Status process” with a “You can notify us if you wish, and if you do, please use our handy new form.” Which still provides discretion to not file an update with USCIS.
Employment Authorization for individuals with an approved Immigrant Visa Petition (I-140): DHS will now allow workers present in the U.S. in E-3, H-1B, H-1B1, O-1 or L-1 status to apply for an EAD while waiting to be eligible to file an Adjustment of Status application. The applicant must demonstrate “compelling circumstances” while waiting for approval of an immigrant visa. If the primary beneficiary applies for an EAD, his or her dependents are able to apply as well and there is an option to extend the EAD. We are waiting for some guidance on when USCIS feels there are “compelling circumstances.”
Q: I have an EAD application pending with USCIS. Will the new regulation affect the processing time?
A: If your EAD application is not approved before January 17, 2017, the approval of the application may be delayed but your current EAD should be extended automatically for up to 180 days so long as it was not expired prior to January 17, 2017.
Q: Can I still put in service requests if my EAD takes longer than 90 days?
A: Yes. Depending on when they set processing timeframes we can usually make a service request 30 days after USCIS has passed its current processing standard – so if EADs are taking 4 months, we can check in with USCIS at 5 months.
Q: How do I complete I-9 verification after my employee’s EAD has expired and he or she has an extension pending with USCIS?
A: You will use the expired EAD and the receipt notice for the application to verify work authorization for up to 180 days after the EAD expires.
Q: When do I need to notify USCIS if an employee is terminated?
A: We ask that you please contact our office and we will assist you in the timing of the withdrawal of nonimmigrant status for an employee. Generally, since the new regulations allow for 60 days of unemployed status for most nonimmigrant statuses, the withdrawal notice would be filed as soon as possible after the employee’s last day. And we will also withdraw any related LCAs filed.
Q: Are dependents included in the 10-day/60-day grace periods?
A: Yes, dependents are allowed to stay in the U.S. during the 10-day or 60-day grace periods. Please note that dependents do not have a separate grace period. Their authorization to stay in the U.S. tied to the principal beneficiary.
Q: Can I work during the 10-day/60-day grace periods?
A: No. You are only authorized to stay in the U.S., you are not authorized to work past the expiry of the work authorized portion of your nonimmigrant status.
Q: Can I extend my stay in the U.S. past the 10 day/60 day grace periods?
A: Depending on the specific situation, some nonimmigrants would be able to extend their status past the grace period. We recommend that you speak with our office if you wish to extend your stay past the grace periods.
Q: If I file my I-140 and Adjustment of Status together, do I need to file I-485 Supplement J?
A: No, you will never need to file the I-485 Supplement J with an initial I-140/AOS filing. The only reason that the I-485 Supplement J would need to be filed in this particular situation is if a request for evidence was issued.
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **