Nov 17 2016

New USCIS Regulation Eases Job Portability for Employer-Sponsored Foreign Workers

United States

United States

USCIS is set to publish a new regulation that is intended to ease restrictions on job mobility for foreign workers awaiting employment-based permanent residence.  The new rule, which takes effect on January 17, 2017, also establishes grace periods for nonimmigrant workers before and after their employment, and provides automatic work authorization extensions to adjustment applicants and certain other classes of foreign nationals who have timely filed for renewal of an employment authorization document (EAD).

The rule codifies USCIS’s interpretations of two key statutes, the American Competitiveness in the Twenty-First Century Act (AC21), enacted in 2000, and the American Competitiveness and Workforce Improvement Act (ACWIA), enacted in 1998.  It is one of the Obama Administration’s key executive actions on employment-based immigration, and is intended to help enable U.S. businesses to retain and develop highly-skilled foreign workers and reduce the burdens of lengthy immigrant visa backlogs on employment-based adjustment applicants.

Key provisions of the final rule are summarized below.

Portability and Priority Date Retention for I-140 Beneficiaries

The new regulation eases the impact of I-140 petition revocations and codifies certain longstanding agency policies on I-140 job portability.

A foreign national whose I-140 petition has been approved for 180 days or more will not have the petition automatically revoked if the employer goes out of business or withdraws the petition.  However, the foreign national will need a new job offer or a new I-140 petition to obtain employment-based permanent residence.

An I-140 beneficiary whose petition is revoked will be able to use the priority date for a subsequent I-140 petition, unless the reason for revocation was fraud, material misrepresentation, invalidation or revocation of the underlying labor certification or material USCIS error.

Consistent with current policy, the beneficiary  of a pending I-140 will be able to port to new employment after his or her adjustment of status 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 adjustment application.

Employment Authorization for Certain Approved I-140 Beneficiaries

The regulation allows E-3, H-1B, H-1B1,  L-1 and O-1nonimmigrants with an approved I-140 petition to apply for a one-year employment authorization document if their priority date is backlogged and they can show compelling circumstances – such as a medical emergency or significant disruption to the employer – to justify the need for employment authorization. 

Grace Periods for Nonimmigrant Workers

E, H-1B, H-1B1, L-1, O-1 and TN nonimmigrants whose employment is terminated early will be accorded one grace period of up to 60 days during each validity period, to allow them to extend, change or otherwise maintain status or, in the H-1B context, to port to new employment. 

Approved E, L-1 and TN nonimmigrants will receive a 10-day grace period before and after their validity period, as is currently available to H-1B nonimmigrants. They will be able to enter the United States 10 days before their start date to prepare for employment, and will have 10 days at the end of their period of stay to take action to extend, change or otherwise maintain status, or prepare for departure from the United States. 

Employment is not authorized during the grace periods, except for H-1B foreign nationals who are porting to new employment.

H-1B Extensions Beyond the Sixth Year

The regulation codifies USCIS’s longstanding policies on H-1B extensions beyond the sixth year, with some additional requirements.

  • Post-sixth year extensions will be available to foreign nationals who are not currently in H-1B status, as long as they previously held that status and remain eligible for an additional period of H-1B admission, consistent with current policy.
  • An H-1B nonimmigrant will become ineligible for a one-year post-sixth year extension, if he or she fails to apply for adjustment of status or an immigrant visa within one year of the date an immigrant visa becomes available to him or her.
  • A one-year post-sixth year H-1B extension will cease to be available if, at the time the extension is filed, the foreign national’s labor certification is no longer valid, his or her I-140 has been denied or revoked or an adjustment application or an immigrant visa has been approved or denied.
  • 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, material misrepresentation, material USCIS error, or revocation or invalidation of the underlying labor certification.

Employment Authorization Documents:  Automatic Extensions and Application Processing

The regulation offers an automatic 180-day work authorization extension to certain foreign nationals who timely file for EAD renewal, including adjustment applicants, applicants for extension of Temporary Protected Status, and certain applicants under the Violence Against Women Act. The automatic extension will not be available to H-4, L-2 or E nonimmigrant spouses seeking renewal of employment authorization.  

The new regulation eliminates a rule that required USCIS to process EAD applications within 90 days and grant interim work authorization to those with an EAD application pending for more than 90 days.  As a practical matter, the agency had ceased adhering to these rules in recent years. USCIS has indicated that, except when impracticable, it will accept renewal applications up to 180 days before EAD expiration to minimize the impact of extended EAD processing delays on a foreign national’s continued eligibility to work; previous policy prohibited renewal applications from being filed more than 120 days before EAD expiration.

What the New Regulation Means for Employers and Foreign Nationals

The new regulation clarifies and in many cases enhances USCIS policies on job mobility for nonimmigrants and foreign nationals in the employment-based permanent residence process.  Comments provided by business immigration stakeholders during the regulatory review process yielded some improvements to key provisions of the rule. 

The new rule will take effect just days before President-Elect Donald Trump takes office, and it is not yet clear whether the new administration will seek to make changes to or withdraw the regulation.  Any such action would require notice and an opportunity for the public to provide feedback, a process that typically takes several months to unfold.

This alert is for informational purposes only. If you have any questions about the new regulation, please contact the immigration professional with whom you work at Fragomen. 

© 2016 Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All Rights Reserved.