New Department of Homeland Security (DHS) Changes Regarding Employment-Based Immigrant (EB-1, EB-2, EB-3) and Nonimmigrant Visa Programs

On December 31, 2015 DHS and the US Citizenship and Immigration Services (USCIS) published proposed changes to the regulations regarding employment-based immigrant and nonimmigrant visa programs. The proposed changes are extremely significant considering they would affect such a large number of the countries’ immigrant workers as well as potentially millions of other individuals applying for Employment Authorization Documents (EADs).

DHS explains that the benefits of the proposed changes are threefold. To provide improved processes for U.S. employers seeking to retain immigrant and nonimmigrant workers, greater stability and job flexibility for such workers and also increased transparency and consistency in the application of agency policy related to affected classifications.   The overall goals of the proposal are to improve the ability of U.S. employers to hire and retain highly skilled workers who are beneficiaries of approved employment based green card petitions and also increase the ability of workers to seek promotions, accept lateral positions with current employers, change employers or pursue other employment opportunities.  We will begin with a brief summary of the proposed DHS changes followed up by a more detailed examination.

Summary of Employment-Based Immigrant Visa Program Changes

EB-1, EB-2 and EB-3 applicants who have petitions pending 180 days or longer no longer have an automatic revocation of their petition based solely on withdrawal by the petitioner or because of termination of the petitioner’s business. Of course the beneficiary would still be required to obtain a new offer of employment and may require another immigrant visa petitioner.  The priority date will be retained provided the initial immigrant visa petition was approved and the approval was not revoked for fraud, material representation, invalidation of a labor certification or USCIS error.

 

Summary of Nonimmigrant Visa Program Changes

There is a proposed one-time grace period of up to 60 days when employment ceases for E-1, E-2, E-3, H-1B, H-1B1, L-1 or TN nonimmigrants. Work is not permitted during the grace period.  In addition, DHS may shorten or eliminate the 60-day grace period at its discretion on a case by case basis.  DHS has also proposed to allow E-3, H1-B, H-1B1, L-1 or O-1 nonimmigrant visas the ability to apply for a limited period of separate employment authorization if DHS finds that there are compelling circumstances.

 

There is a proposed change for H1-B occupations that require a license. H1-B application requirements will be considered satisfied if a license application is filed but has not been granted because a state requires a social security number.  The license requirement is also considered satisfied if the state allows unlicensed individuals to work under the supervision of a licensed supervisor.

An automatic 180-day extension of employment authorization for employment authorization documents as long as an I-765 was previously filed before the EAD has expired is also proposed. The 90-day time limit to adjudicate EADs is to be eliminated under the new regulations.

1. H1-B Extensions for Workers Being Sponsored for Lawful Permanent Residence

a. Extensions for Individuals Affected by Per Country Limitations

For H1-B nonimmigrant workers who are being sponsored for lawful permanent resident status the proposal would allow them to extend their nonimmigrant status beyond the usual 6-year limitation. Extensions will be granted in three year increments and beneficiaries are not required to be in the U.S. in H1-B status when the H1-B is filed to receive the benefit of this provision.  Also, the H1-B employer is not required to be the same employer that is listed in the immigrant visa petition.  The proposals are thought to allow workers to become more mobile.  However, these proposals do not extend to spouses and children in H-1B status but do permit H-4 extensions.

b. Extensions for Individuals Affected by Lengthy Adjudication Delays

The proposal would permit extensions for one year increments to beneficiaries who are not currently in the U.S. when the H1-B petition is filed.   Extensions would also be permitted even when the H1-B petitioner is not the employer that filed the labor certification or the I-140 for which the extension is based on.  The one year extensions are permitted until the labor certification expires or when a final decision is made to deny the labor certification, deny the immigrant visa petition, or grant or deny the application for adjustment of status or for an immigrant visa.

2. Job Portability for Certain Applicants for Adjustment of Status

An employment based immigrant visa petition filed for EB-1, EB-2 or EB-3 classification will remain valid regarding a new qualifying job offer when the worker changes jobs or employers if an application for adjustment of status has been filed and it remains pending for 180 days or more. This portability is allowed when the new job offer is in the same or similar occupational classification as the job for which the original immigrant visa petition was filed.  The new offer is permitted for a different position with the original employer, a new U.S. employer or for self-employment.

 

The I-485 form will have a new supplement that will aid DHS in determining that a job offer which was outlined in an employment-based immigrant visa petition is still available when the individual files an adjustment of status application. This form will be submitted by an applicant when requesting adjustment portability and will describe the new position and its requirements and show that the new offer is the same or similar to the original one.  A copy of the I-485 receipt showing that the application has been pending for 180 days or more will also be required.

a. Job Portability for H1-B Nonimmigrant Workers

H1-B beneficiaries are authorized to accept new or concurrent employment upon filing of an H1-B petition provided the worker has been lawfully admitted into the U.S., has not worked previously without authorization and employment authorization continues until the petition is adjudicated. However, the proposal would make portability available only to H1-B beneficiaries currently in the U.S. on H1-B status.  Where a later employer files an H1-B petition on a worker’s behalf (also called a bridge petition), the subsequent portability petition is dependent on approval of an extension of stay in the preceding case.  The I-9 rules are also set to be changed to include H1-B portability situations and include them in the authorized workers for employment incident to status.

b. Calculating the H1-B Admission Period

DHS is proposing an addition to its current policy that any time spent outside of the U.S. will not count against the six-year period for H1-B employment. Beneficiaries are required to show objective evidence, which may include, passport stamps, I-94s and airline ticket stubs, that prove the H1-B worker was outside the U.S.  If an H1-B worker seeks recapture of time and the worker counted against the H1-B cap, seeking recapture does not subject the worker to the H1-B cap.  If it had not counted against the cap, the recapture petition would be cap-subject unless the new employment is also exempt from the cap.  The burden of proof in these cases is on the H1-B petitioner.

3. Exemptions from the H1-B Cap

a. Employers Not Subject to the H1-B Numerical Limitations

Workers employed at an institution of higher education or a related nonprofit entity or at a nonprofit research organization or governmental research organization are exempt from the H1-B cap. The current rule states that employed “at” is when the worker is located physically at a qualified entity and the worker is performing job duties that “directly and predominantly” further the normal, primary or essential purpose, mission, objectives or function of the qualifying institution, organization or entity.

The proposed rule employed “at” works if the majority of the worker’s duties will be performed at the qualifying institution, organization or entity and such job duties directly and predominantly further the essential purpose, mission objectives or functions of the qualifying institution, organization or entity. The petitioner must establish this based on a preponderance of the evidence which must show a nexus between the work performed and the purpose, mission or objectives of the exempt entity.

The fee exemption definition of “institution of higher education” will now apply to cap exemption which would eliminate for-profit colleges from claiming cap exemption. “Nonprofit research organization” and “government research organization” are also going to apply to cap exemption.  DHS is also proposing to expand the definition of “affiliated or related nonprofit entities” to include nonprofit entities that have entered into formal written agreements with institutions of higher education and can establish an active working relationship with the institution for purposes of research or education and also that one of their primary purposes is to directly contribute to the research or education mission of the higher education institution.

b. Counting Previously Exempt H1-B Nonimmigrant Workers

At present, individuals working at cap exempt institutions of higher education and related or affiliated nonprofit entities who switch to cap subject employers are subject to the cap at the time of transfer. The proposed new rule would be extended to nonprofit research organizations and governmental research organizations.  USCIS may also now revoke the petition for concurrent employment of an H1-B worker at a cap subject employer when the worker is no longer employed there.

 

Additional Changes to Further Improve Stability and Job Flexibility for Certain Worker

1. Revocation of Approved Employment-Based Immigrant Visa Petitions

The proposed rule would allow EB-1, EB-2 and EB-3 immigrant visa petitions that have been approved for 180 days or more to no longer be automatically revoked based solely on withdrawal by the petitioner or termination of the petitioner’s business. This is of course except when revocations are based on fraud, misrepresentation, invalidation or revocation of a labor certification or USCIS mistake.  However, a new I-140 would also be needed and for portability cases a new offer of employment would be needed.

2. Retention of Priority Dates

The proposed new rule explains that priority dates for petitions not requiring a labor certification, such as EB-1 and EB-5 will be the date the completed, signed petition is properly filed with DHS. The proposed rule will also allow retention of priority dates in all cases except where revocation occurs due to fraud, misrepresentation, USCIS error or revocation or invalidation of the labor certification associated with the petition.  Priority dates would be retained immediately upon approval even if the petition is revoked based on petition withdrawal or business termination less than 180 days after approval.

3. Nonimmigrant Grace Periods

Under the proposal, the ten-day grace period before and after the relevant validity period in H1-B cases would be extended to E-1, E-2, E-3, L-1 and TN classifications. For H1-B cases a worker is admitted but not authorized to work during the 10-day grace period at the beginning and end of the H1-B period.  This grace period is being extended to the other classifications above.

The proposal also includes a one-time grace period of up to 60 days or until the validity period ends, whichever is shorter, whenever employment ends for these individuals. DHS explains that the reason for this proposed rule is to allow nonimmigrants sufficient time to respond to a sudden or unexpected change related to their employment in order to seek new employment, change status to a different visa category or depart the US.  During the grace period status would be maintained for the purpose of filing a change of status but employment authorization is not permitted during the grace period.  Dependents of eligible nonimmigrant workers also benefit from the grace periods.  DHS notes that the proposed 60-day grace period may also be shortened as a matter of discretion.

 

Eligibility of Employment Authorization in Compelling Circumstances

The proposal suggest discretion in the interpretation of compelling circumstances however four examples are given by DHS. 1) Serious illness and disabilities which causes the worker to move to a different geographic area for treatment resulting in a change in economic circumstances.  2) Employer retaliation when a worker files a complaint with a government agency or court.  3) Other substantial harm to the applicant and the applicant shows he will be unable to timely extend or maintain status, obtain another immigrant status and without continued employment, the applicant and his or her family would suffer substantial harm.  4) When there is significant disruption to the employer and the worker shows he is unexpectedly unable to change status and the worker’s departure would cause the employer substantial disruption to a project for which the worker is crucial.

 

Individuals would be eligible for one year of employment authorization if they are currently working in the U.S. and maintaining E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status, the individual is a beneficiary of an approved immigrant visa petition under the EB-1, EB-2 or EB-3 classification, the individual does not have an immigrant visa immediately available and the individual can demonstrate compelling circumstances that justify granting employment authorization. DHS explains that the goal is to provide interim relief while a new nonimmigrant visa is obtained.

 

H1-B Licensing Requirements

The proposed new rule would not mandate the H1-B beneficiary possess a state or local license before H1-B issuance if the job is in a state that allows unlicensed individuals to work under the supervision of a licensed supervisor. DHS also formalizes the rule that approves an H1-B for a year if the license application was filed at the time of filing the H1-B petition and only problem with obtaining the license is the lack of social security number or employment authorization.

 

Processing of Applicants for Employment Authorization Documents (EADs)

The proposed rule would automatically extend EADs up to 180 days if new I-765s are filed before the green card expires, the application is in the same green card category and the person continues have their employment authorized incident to their status beyond the expiration date of the EAD and are applying under a category that does not first require adjudication of an underlying application, petition or request. The 180-0day extension is eligible for the following categories:

1. Refugees
2. Asylees
3. Parents of dependent children of people who got permanent residency under INA 101(a)(27)(I)(a)(7)
4. Citizens of Micronesia or the Marshall Islands
5. People granted withholding of deportation or removal
6. TPS
7. People with pending asylum or withholding of deportation or removal
8. Pending adjustment of status applicants
9. People with pending suspension of deportation and cancellation of removal
10. Applicants for creation of a records of lawful admission for permanent residence
11. Legalization applicants
12. LIFE Act adjustment applicants
13. VAWA cases

 

H-4 green card holders and spouse-based nonimmigrant visa green cards are not eligible for the 180-day extension. Also, the current 90-day time limit to adjudicate EADs would be eliminated to address national security and fraud concerns.

 

Conclusion

The proposed regulations were published in the Federal Register on December 31, 2015 and DHS has provided the public with 60 days in which to submit comments on the proposal. This would allow comments to be submitted up until February 29, 2015.  After this date DHS will base its reasoning and conclusions on the rulemaking record, which consists of the comments, scientific data, expert opinions, and facts accumulated during the pre-rule and proposed rule stages.  If the rulemaking records contains persuasive new information the agency may decide to terminate the rulemaking or alternatively if there are only minor changes to make the agency may proceed with a final rule.

 

DHS will then publish the final rule which will become effective no less than thirty days after the date of publication in the Federal Register. Once the final rule is published in the Federal Register it will then be added to the Code of Federal Regulations which contains all of the rules of the Federal Government.