The U.S. Department of Homeland Security (DHS) has issued new regulations that provide some greater flexibility for high-skilled foreign professionals. They also codify current informal administrative guidance about statutory provisions added in 2000. The regulations take effect on January 17, 2017, unless Congress prevents them from going into effect.
They include the following key provisions:
I-140 Priority Date Retention & AOS Portability
An I-140 approval can no longer be automatically revoked by employer request more than 180 days after filing. The rule also clarifies that a foreign national will not lose his/her priority date unless the petition is revoked for fraud or misrepresentation. In addition, an I-140 petition that has been approved for 180 days or more will not be automatically revoked if the employer goes out of business (unless the I-140 is revoked for fraud, or misrepresentation). However, a foreign national will need a new job offer or a new I-140 petition to obtain employment-based permanent residence.
The beneficiary of a pending I-140 will continue to be able to port to new employment after the AOS application has been pending for 180 days or more, as long as the pending I-140 petition was approvable when filed and remained approvable for 180 days after the filing of the AOS application. The regulation also creates a new AOS portability form – Supplement J to the Form I-485 – that foreign nationals must use to demonstrate continuing eligibility to adjust status.
New Grant of Employment Authorization for I-140 Beneficiaries
Those individuals in L-1, O-1, E-3, H-1B, H-1B1, and E-3 status with an approved I-140 petition (and their family members), may apply for a one-year renewable EAD, if their priority date is backlogged and they can show exigent circumstances – such as a medical emergency or significant hardship to the employer or individual/family – to justify the grant of employment authorization.
New Grace Periods
Nonimmigrants in E, H-1B, H-1B1, L-1, O-1 and TN status whose employment is terminated will now have a 60-day grace period, to allow them to extend, or change status. Those individuals in E, L-1 and TN status will now receive a 10-day grace period and will be able to enter the U.S. 10 days before their start date, and will have 10 days at the end of their period of stay to change/extend status or depart the U.S.
H-1B Extensions Beyond the Sixth Year
The regulation codifies longstanding policies on H-1B extensions beyond the sixth year, with some clarifications:
- Post-sixth year extensions will be available to foreign nationals who are not currently in H-1B status, as long as they previously held H-1B status and remain eligible for an additional period of H-1B admission.
- An H-1B nonimmigrant will not be able to obtain a one-year post-sixth year extension, unless they apply for adjustment of status or an immigrant visa within one year of the date an immigrant visa becomes available.
- An H-1B whose approved I-140 petition was withdrawn 180 days or more after approval will remain eligible for a three-year extension unless the I-140 was withdrawn for fraud or material misrepresentation.
H-1B Portability & Cap Exemption
A foreign national may have successive H-1B change of employer petitions filed, as long as each petition meets the requirements for H-1B classification.
With regard to H-1B cap exemption, DHS codified rules that a non-profit entity that has a written affiliation agreement with an institution of higher education, such as a teaching hospital, will be exempt from the H-1B cap. The agreement would need to demonstrate an active working relationship with the school and that a fundamental activity of the nonprofit is to directly contribute to the mission of the institution of higher education.
Automatic EAD Extensions and New Application Filing Timeframes
The new rule provides for an automatic 180-day work authorization extension (assuming a timely filed renewal) for AOS applicants. Unfortunately, the automatic extension does not apply to H-4, L-2 or E nonimmigrant spouses.
The new regulation eliminates the 90-day EAD processing rule. However, USCIS will now accept renewal applications up to 180 days before expiration.
Will The Trump Administration Make Changes?
The new rule takes effect just days before President-Elect Trump assumes office and it is unclear if his administration will seek to modify or eliminate any of these changes. The rule may be eliminated in two ways, by Congress or by the new administration. Congress could vote to disapprove the regulation under the Congressional Review Act, which Congress may do for up to sixty legislative days after enactment (before May or June of 2017, depending on how many days Congress is in session). Administrative change would require the Trump Administration to begin the rulemaking process anew, which is a process that typically takes at least a year to complete. Thus, these changes should remain in effect for at least the immediate future.