On November 18, 2016, the Department of Homeland Security issued final regulations that will change a number of provisions relating to high-skilled immigration. The new rules become effective January 17, 2017. The regulations offer several positive improvements, and they also codify many of the policy positions and interpretations that USCIS has developed over the past several years. However, they also make some changes that are cause for concern.
The primary improvements created by the rule relate to grace periods and employment authorization documents (EADs). Under existing law, foreign workers holding H-1B, L-1, and other temporary forms of nonimmigrant status who lose their employment are considered immediately out of status. The new regulations change this policy, creating an automatic 60-day grace period for workers in H-1B, H-1B1, L-1, O-1, TN, E-1, E-2, or E-3 status. The individual is not permitted to work during this grace period, but is permitted to remain in the United States to seek other employment or to prepare to depart the U.S. The rule also applies the 10-day discretionary grace period that is sometimes given to H-1B workers at the port-of-entry to individuals entering in E-1, E-2, E-3, L-1, or TN status. In addition, the rule creates an automatic 180-day extension of an expired EAD card where a timely renewal application has been filed if extension of the underlying status is not required to renew the EAD (such as H-4 and L-2). This will primarily assist applicants for adjustment of status who are relying on an EAD for work authorization. The rule eliminates the current regulatory requirement for EAD applications to be adjudicated within 90 days, but does allow for EAD renewal applications to be filed 180 days before the expiration of the existing EAD card. Finally, the rule provides the opportunity for certain individuals to obtain an EAD upon the showing of “compelling circumstances.” To obtain such an EAD, the applicant must (1) have an approved I-140 immigrant petition, (2) be unable to file for adjustment of status because of backlogs in the immigrant visa quota, and (3) have “compelling circumstances” justifying the EAD, such as a major disruption to the employer or substantial harm to the applicant if they are unable to continue to work.
The regulations also clarify and codify certain policy positions and interpretations on adjudication issues. Importantly, the rule addresses a vexing problem that exists under current policy relating to withdrawals of approved I-140 immigrant petitions. Under current policy, if an approved I-140 immigrant petition is withdrawn by the petitioning employer (which sometimes happens after the employee leaves that company to take a new job), the worker is unable to gain further extensions of H-1B status beyond the normal six-year maximum based upon that approved I-140. Under the new rule, if 180 days has passed since the I-140 was approved, the I-140 will continue to be valid, notwithstanding the withdrawal, for purposes of (1) retention of the priority date established by that I-140 for the immigrant visa backlog; (2) eligibility for extensions of H-1B status beyond the normal 6-year maximum stay; (3) adjustment of status portability; and (4) EADs based on compelling circumstances as described above. In addition, the regulations largely codify current USCIS practice regarding adjustment of status portability, which allow an adjustment of status applicant to change to new employment in the same or a similar occupational classification without interrupting the green card process after the adjustment of status application has been pending for 180 days. The rule confirms that the underlying I-140 need not be approved for adjustment of status portability to apply, and it creates a new form that must be filed with USCIS to request adjustment of status portability.
The regulations do raise some areas of concern. First, agency policy has long allowed H-1B workers who hold H-1B status with a cap-exempt employer (such as many universities, hospitals, and research organizations) to change employer and begin with a cap-subject employer (such as a private, for-profit company) under the H-1B portability rules without waiting for October 1st when the cap-subject employer’s H-1B petition would become effective. While not addressed in the rule itself, in comments to the rule DHS stated that the employment with the cap-subject employer would not be able to begin before October 1st. This is a significant change in long-standing agency policy, and will hamper job flexibility for H-1B workers changing from cap-exempt to cap-subject employers which is common practice in health care. Second, the rule modifies current policy relating to exemption from the H-1B cap for non-profit employers that are affiliated with a cap-exempt institution of higher education. Teaching hospitals, for example, are often exempt from the H-1B cap because they have an affiliation agreement with a university to train medical students, residents, or fellows. Under the new rule, to obtain the exemption it must show that “a fundamental activity” of the non-profit employer is to directly contribute to the research or education mission of the institution of higher education. While this is an improvement from the language on this issue in the proposed version of the regulation (which would have required the contribution to be the “primary purpose” of the non-profit employer), it nevertheless raises concerns about how it will be interpreted by USCIS. Finally, the regulations confirm that if the occupation for which an H-1B petition is being filed requires a license, evidence of compliance with the license requirements must be submitted. This raises some concern that USCIS will independently examine licensure issues, rather than deferring to the individual states as to license requirements.
A final consideration regarding the regulations is whether they will survive with the incoming administration of President-Elect Trump. Should the new administration choose to withdraw the new regulations, any changes made by them could be short-lived. It is difficult to know now the degree to which the incoming administration will focus on regulations relating to high-skilled immigration, but SPS Immigration will continue to monitor this issue.