Significant New Rule on Employment-Based Immigration, and EADs

The Department of Homeland Security (DHS) made final a long-awaited rule on issues that impact mostly H-1B professional workers and employment-based visa applicants and their dependents. The rule is intended to clarify and codify issues related to the retention of EB-1, EB-2, and EB-3 immigrant workers and make improvements affecting high-skilled nonimmigrant workers. Its focus is to streamline the processes, increasing job portability and providing consistency in the adjudication of these types of cases. Both employers and foreign employees will largely benefit from the new provisions in different ways. While many of these provisions merely codify current policy and practice, some of the updates clarify areas that have been gray and others make changes that can have significant consequences – mostly for the good. The rule goes into effect on January 17, 2017.

Some of the most important provisions include the following:

Grace Periods, Portability and Priority Dates

• A 60-day grace period or a grace period until the existing validity period ends, whichever is shorter for those in H-1B, TN, O-1, L-1, E-1, E-2, E-3, and H-1B1 status to depart the country or seek new employment to extend their status;
• Curing a catch-22 by issuing temporary H-1B approvals for positions requiring a licensed professional, but where an applicant must have H-1B status before applying for the license;
• Codifying the “portability” procedures that allow certain workers whose green card applications have been pending 180 days or more to change jobs or employers without endangering their approved I-140s;
• Permitting instances where a previously approved I-140 petition remains valid despite a subsequent withdrawal by the employer or the permanent closing of the employer’s business; and
• Finalizing existing USCIS policy that a priority date for an employment-based green card application is generally established upon the filing of a PERM or a relevant petition. That priority date can be retained as long as the I-140 petition is not later revoked for fraud, misrepresentation, invalidation of a labor certification, or material error.

There are significant details in each of these new regulations that affect applicability, scope, and exceptions.

Clarification on Cap Exempt Employers
The final rule clarifies the requirements associated with the cap-exempt employment of H-1B workers by nonprofit entities that are affiliated with or related to an institution of higher education or other cap-exempt institutions. The final rule adds another way for qualifying as a cap exempt employer: demonstrating a formal written agreement between the entity and the institution of higher learning that establishes an active working relationship and that a fundamental activity of the nonprofit entity is to directly contribute to the research or education mission of the institution. Furthermore, the new rule expands the definition of a “governmental research organization” to include state and local organizations as well. Previously only federal research organizations qualified.

In addition, a separate requirement was defined that is associated with H-1B beneficiaries who work ‘at’ a cap-exempt qualifying organization. H-1B workers working at but not employed by a qualifying organization must spend the majority of their time performing job duties at the qualifying initiation and those duties must directly and predominately further the mission or purpose of the cap-exempt organization. Finally, the regulations will continue to allow concurrent employment with both a cap-exempt and cap-subject employer, as long as the cap-exempt employment is documented and maintained.

Changes to Employment Authorization
In publishing the final rule, DHS managed to sneak in changes to how it will process applications for employment authorization documents (EADs), particularly extensions. The most alarming change is that USCIS is formally rescinding the regulation that requires EAD adjudications within 90 after filing. This rescission of the requirement to adjudicate EADs within a reasonable period of time certainly does not coincide with the stated intention of “enhancing stability and certainty” to foreign nationals and their employers. USCIS will permit filings 180 days (up from the present 120 days) in advance in some cases, but this will be determined on an EAD category-by-category basis and it remains to be seen whether this will be helpful in its practical application.