USCIS Regulation on High-Skilled Foreign Workers, Effective January 17, 2017
On January 17, 2017, a U.S. Citizenship and Immigration Services (USCIS) regulation became effective that eases restrictions on job mobility for high-skilled foreign workers awaiting employment-based permanent residence. The new rule implements the American Competitiveness in the 21st Century Act (AC21), enacted in 2000, and the American Competitiveness and Workforce Improvement Act (ACWIA), enacted in 1998. The regulation establishes grace periods for nonimmigrant workers before and after their employment, and provides automatic work authorization extensions to Adjustment of Status applicants and certain other classes of foreign nationals who have timely filed for renewal of an employment authorization document (EAD).
Please note: the regulation was published as one of the last acts of President Obama’s administration, so it is possible that elements of this rule may be revised or even rescinded by the new Trump administration.
Here are some of the key provisions of the rule:
- 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 withdraws the petition or goes out of business. However, the foreign national will need a new job offer or a new I-140 petition to obtain employment-based permanent residence.
- Certain visa holders whose employment ceases will be given a one-time grace period of 60 days during each authorized period of stay to seek new employment. This provision would apply to the following categories: E, H-1B, H-1B1, L-1, O-1, and TN. The 10-day grace periods currently available to H-1B workers at the end of their nonimmigrant petition would also be available to E, L-1, and TN nonimmigrant classifications.
- Individuals in certain visa categories who are unable to obtain an immigrant visa because of numerical limits and who face “compelling circumstances” will become eligible to apply for an Employment Authorization Document (EAD). This provision applies to individuals in E-3, H-1B, H-1B1, L-1 or O-1 status who file during the authorized periods of admission. Examples of compelling circumstances include serious illness or disabilities, employer retaliation, other substantial harm to the applicant, or significant disruption to the employer.
- Certain individuals, including Adjustment of Status applicants, may obtain automatic EAD extensions for up to 180 days if they have timely applied to renew the EAD and maintain the same basis for employment authorization.
The new regulation eases the impact of I-140 petition revocations and codifies previous 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 for Adjustment of Status (AOS) Portability 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 I-140 petition was revoked based on fraud, material misrepresentation, invalidation or revocation of the underlying labor certification or material USCIS error.
The regulation allows E-3, H-1B, H-1B1, L-1 and O-1 nonimmigrants with approved I-140 petitions and who are maintaining lawful status to apply for a one-year employment authorization document (EAD) if their priority date is backlogged and they can show compelling circumstances – such as a medical emergency, an employer dispute or retaliation, other substantial harm to the applicant, or significant disruption to the employer – to justify the need for employment authorization.
Certain nonimmigrants (E, H-1B, H-1B1, L-1, O-1 and TN) whose employment ceases will be accorded one grace period of up to 60 days during each validity period to allow them to extend, change or maintain status. For H-1B holders, this grace period will also allow them to port to new employment, meaning that they can start work with a new employer upon filing of the H-1B change of employer petition.Additionally, 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 be able to request (at entry to the United States) 10 days at the end of their period of stay to extend, change or otherwise maintain status, or prepare for departure from the United States.Employment is not authorized during the above 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, if they previously held that status and remain eligible for an additional one- or three-year period of H-1B admission.
- An H-1B nonimmigrant will become ineligible for a one-year post-sixth year H-1B extension, if they fail to apply for adjustment of status or an immigrant visa within one year of the date that an immigrant visa became available.
- 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, their I-140 petition has been denied or revoked, or their Adjustment of Status application or Immigrant Visa has been approved or denied.
- 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 withdraws the petition or goes out of business and will remain eligible for a three-year H-1B 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 Earlier Filing for Renewals
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 (VAWA). The automatic extension is not available to H-4, L-2 or E nonimmigrant spouses seeking renewal of employment authorization.