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Immigration Law Update: USCIS Publishes Final Rule, New AAO NIW Standard

Jan 21, 2017

USCIS Publishes Final Rule For Certain Employment-Based Immigrant and Nonimmigrant Visa Programs

On November 18, 2016, US Citizenship and Immigration Services (USCIS) published a final rule aimed at improving several aspects of certain employment-based immigrant and nonimmigrant visa programs. This rule codifies longstanding Immigration Agency policies and practices established as a result of the American Competitiveness and Workforce Improvement Act of 1998 and the American Competitiveness in the Twenty-first Century Act of 2000.

Aspects of this new rule were mentioned in President Obama's November 2014 speech on immigration reform, see Clark Hill's 11/21/16 Immigration Update for more. While the new House of Representatives has proposed a law which would repeal many of President Obama's recent regulations, the Senate, at this time, does not appear willing to pass a similar law.

This final rule went into effect on January 17, 2017 and is not retroactive; it only applies moving forward. Below is a summary of the major areas impacted by this final rule:

Petitions for Employment Based Green Cards and Priority Date Retention

  • Existing regulations establish that a priority date of an employment-based immigrant visa petition accompanied by a labor certification is established when the labor certification is accepted for processing by the US Department of Labor (DOL). The new rule confirms that the priority date of a form I-140 Immigrant Worker petition that does not require a labor certification is the date the I-140 petition is properly filed with USCIS. 
  • Once an I-140 has been approved, the beneficiary may retain the priority date, regardless of the amount of time that has passed since the I-140 was approved, so long as the I-140 approval is not revoked because of fraud, willful misrepresentation of a material fact, invalidation or revocation of the labor certification, or material error with regards to USCIS's approval of the petition.
  • The new rule amends existing automatic revocation rules to prevent I-140 petitions that have been approved for 180 days or more from being automatically revoked solely because the employer withdraws the I-140 petition or the employer's business has terminated. These approved I-140 petitions will remain valid for certain H-1B extensions; and job portability for Adjustment of Status applicants whose Adjustment of Status has been pending for 180 days or more, where there is a change to a new job that is in the same or a similar occupational classification. It is important to note that an I-140 priority date may be retained despite employer withdrawal or termination of the business less than 180 days after the I-140 petition has been approved. Retention of I-140 priority dates and retention of the I-140 petition approvals are treated differently under the rule. 
  • The new rule clarifies that an approved I-140 that is subject to withdrawal or business termination cannot on its own be used when filing an I-485 Adjustment of Status application or appear at an immigrant visa interview (at a US consulate outside the US). To obtain an immigrant visa or Adjust Status, the beneficiary must have either a new I-140 filed approval on their behalf; or if eligible for Adjustment Portability, there must be a new employer offer of employment in the same or a similar occupational classification.
  • Once an applicant's priority date becomes current, the I-140 expires within a one year time period. This one year time period will start over if the priority date retrogresses during the year. USCIS will have some discretion here if there are circumstances outside of the applicant's control.  
  • For more information about I-140's and Adjustment of Status, please see the Clark Hill website.

Adjustment of Status Portability

  • This applies to persons who have an Adjustment of Status application that has been pending for 180 days or more, and there is a change to a new job that is in the same or a similar occupational classification.
  • To use Adjustment Portability, an Adjustment of Status applicant must have a valid offer of employment from the employer who sponsored or is sponsoring their I-140 to be able to even file the initial I-485 Adjustment of Status application. 
  • There is no deadline to file notification that an applicant will be using Adjustment of Status Portability.  The new form is called I-485 Supplement J.  Applicants may file proactively to see if USCIS will approve the new position. Currently, there is no USCIS fee to apply for Adjustment Portability.
  • As stated above, if employer withdraws the I-140 before the I-140 and I-485 have been pending 180 days, the I-140 goes away and the applicant can no longer rely on the I-140 for Adjustment Portability.
  • There is still no definition of how long an applicant must stay with the I-140 employer after the green card is approved - as applicants need to be willing to stay for some "reasonable period of time."
  • For more information about Adjustment Portability, please see the Clark Hill website.

Eligibility for Employment Authorization in Compelling Circumstances

  • The new rule provides for temporary employment authorization (EAD) to certain nonimmigrants who are the beneficiaries of approved I-140 visa petitions, but whose cases are backlogged. To qualify, an individual must:
  1. Be in the US in E-3, H-1B, H-1B1, O-1, or L-1 status, including any applicable grace periods of authorized stay, at the time the employment authorization is filed;
  2. Be the principle beneficiary of an approved I-140 petition;
  3. Show that an immigrant visa is not available based on their priority date, preference category, and country of birth according to the final action date in effect on the date the employment authorization is filed; and
  4. Demonstrate a compelling circumstance to justify the issuance of employment authorization.
  • The new rule specifies that "compelling circumstances" will be determined on a case-by-case basis, based on the totality of the circumstances and that it is a higher standard than a "mere inconvenience." The rule intentionally does not establish a bright-line definition of the meaning of compelling so that there is flexibility to recognize the various circumstances that could be considered compelling. The new rule, and comments to the rule, specify a non-exhaustive list of examples of situations that may be considered compelling and those that likely do not rise to the level of compelling.
    • The following circumstances may be considered compelling and justify a need for employment authorization under the new rule:
  1. Serious illness or disability faced by the applicant or their dependent that requires the worker moving to a different geographic location for treatment or otherwise substantially changing his or her employment circumstances.
  2. Employer retaliation against the applicant. The applicant would need to show they are involved in a dispute regarding the employer's alleged illegal or dishonest conduct evidence by, for example, a complaint filed with a government agency or court because the employer has taken retaliatory action.
  3. Other substantial harm to the applicant, such as an applicant who has been applying an industry-specific skill set with a US employer that unexpectedly terminates the business, where the applicant's skill set is not needed in their home country.
  4. Significant disruption to the employer, and where the applicant's departure would cause the petitioning employer substantial disruption.
  • The following circumstances, alone, do not rise to the level of compelling circumstances:
  1. Lengthy wait for an immigrant visa;
  2. Applicants seeking advanced academic experience in the US;
  3. Dissatisfaction with current employment or pay;
  4. Home ownership;
  5. Children who will turn 21 years of age before the green card is approved;
  6. Unemployment; or
  7. Negative impact on applicant's derivative family members, professional career, or on the on-going education of the applicant's children.
  • An applicant can file for an EAD at any time before the expiration of their nonimmigrant status in accordance with the I-765 filing instructions.
  • The new rule limits employment authorization to a one year period.  Additionally, the applicant may seek renewals for up to one year increments if they can show one of the following:
  1. That they continue to face compelling circumstances and that an immigrant visa is not available based on priority date, preference category, and country of birth according to the final action date in effect or
  2. The difference between his or her priority date and the relevant final action date is one year or less (without having to show compelling circumstances).
  • Family members of primary beneficiaries who qualify for this type employment authorization will also be able to apply for EADs.
  • Individuals eligible for this type of employment authorization must be in lawful nonimmigrant status at the time of filing as mentioned above. Once they begin working pursuant to the EAD, these individuals will generally lose their underlying nonimmigrant status as they will no longer be maintaining their nonimmigrant status. These individuals will generally not accrue unlawful presence during the validity of the EAD or during the pendency of a timely filed and non-frivolous application. (See the Clark Hill website for more information about unlawful presence.) Because individuals working pursuant to these EADs will no longer be maintaining their nonimmigrant status, they will not be able to apply for an I-485 Adjustment of Status application in the US once their priority date becomes current; rather, they will need to either apply for a new nonimmigrant status, secure a new visa, and return to the US; or secure their green card through an interview at a consular post abroad. The applicant must have an I-140 approved if they are with a new employer.
  • Clark Hill believes this should be avoided, as it is not very flexible, and is only for applicants who truly need it.

10 and 60 Day Nonimmigrant Grace Period

  • Under the new rule, USCIS may provide grace periods of up to 10 days before a petition validity period begins and up to 10 days after the validity period ends to certain employment-authorized nonimmigrant visa classifications, including E-1, E-2, L-1, and TN classifications.  Similar grace periods are currently available for H-1B, O-1, and P holders (Not H-1B1).
  • Additionally, USCIS may also authorize a grace period of up to 60 days for E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN classifications during the period of petition validity. The rule establishes a grace period for up to 60 consecutive days, or until the existing validity period ends, whichever is shorter, for those nonimmigrants that face termination of employment prior to the end of their petition validity period.  The individual may not work during this 60 day validity period and they are only entitled to one grace period during the nonimmigrant validity period. Nonimmigrants are eligible for the 60 day grace period only if they have otherwise maintained their status. Under the prior practice, nonimmigrants are given a 30 day grace period to submit a request to change employer or change status.
  • During either a 10-day or 60-day grace period, a nonimmigrant worker, if otherwise eligible, can be granted an extension of stay or change of status. The nonimmigrant worker may also commence employment under H-1B portability rules, detailed below.
  • Both grace periods are discretionary. The 10 day grace period is only available if the nonimmigrant worker finishes their full status, not if employment ends early.
  • Because the 10 and 60 day grace period are intended to serve the same purpose, a nonimmigrant will not be eligible for both grace periods except in rare cases. For instance, if a nonimmigrant worker was granted a grace period of up to 10 days at the expiration of the validity period at their last admission to the US, and then is terminated in the last 60 days of their employment, USCIS may consider the nonimmigrant in status for up to 60 days preceding the expiration and the nonimmigrant may also us the 10 day grace period after the validity period ends.

H-1B Extensions of Stay Beyond the Six Year Limitation

  • The new rule codifies longstanding policies regarding recapturing time. An H-1B worker can recapture time spent physically outside the US (24 hours) or in another status any time before the foreign worker uses the full period of H-1B admission.
  • The rule also allows certain beneficiaries to obtain H-1B status for a one year time period if 365 days has passed since the filing of a permanent labor certification (PERM) or I-140 form, even if the PERM or I-140 was not filed 365 days or more prior to the end of the 6-year limitation in H-1B status. Workers need not be in H-1B status to take advantage of lengthy adjudication delays; as long as the individual has previously held H-1B status.
  • As stated above, USCIS will no longer automatically revoke an I-140 approval based on employer withdrawal or termination of the employer's business if the petition has been approved for 180 days or more. The approved I-140 petition will generally continue to be valid for H-1B extension purposes. H-1B holders with approved I-140 petitions will generally be eligible for three year increments until the Adjustment of Status is adjudicated.

H-1B Portability

The new rule codifies longstanding polices regarding H-1B portability. Under the rule, H-1B nonimmigrant workers can change jobs or employers upon the filing of a nonfrivolous H-1B petition if:

  • The H-1B nonimmigrant worker was lawfully admitted into the US;
  • Has not worked without authorization after such lawful admission; and
  • Is in H-1B status or in H-1B period of authorized stay.

H-1B portability eligibility ends once the H-1B application is adjudicated. Under the current regulations, H-1B nonimmigrant workers are eligible for up to 240 days of work authorization if they have a timely filed H-1B extension or H-1B transfer pending. Under the new rule, if an H-1B is filed using portability, the H-1B nonimmigrant worker can work the entire time the H-1B is pending - they will no longer be limited to 240 days. The 240 day rule remains unchanged for those who have filed an H-1B extension not using H-1B portability.

EAD Processing Requirements

  • The new rule eliminates the regulatory provision that directs USCIS to adjudicate EAD applications within a 90 day time frame.
  • The new rule adds a provision providing for automatic extension of EADs for up to 180 days for certain workers filing EAD renewal requests if filed timely. These workers include:
  1. Aliens admitted as refugees;
  2. Aliens granted asylum;
  3. Aliens admitted as parents or dependent children of aliens granted permanent residence status under section 101(a)(27)(I) of the Immigration and Nationality Act (INA);
  4. Aliens admitted as citizens of the Federated States of Micronesia, the Marshall Islands, or Palau;
  5. Aliens granted withholding of deportation or removal;
  6. Aliens granted Temporary Protected Status (TPS);
  7. Aliens who have properly filed applications for TPS and have received an EAD as a "temporary treatment benefit";
  8. Aliens who have properly file applications for asylum or withholding of deportation or removal;
  9. Aliens who have filed for adjustment of status under section 245(a) of the INA or section 1104 of the LIFE Act;
  10. Aliens who have filed applications for suspension of deportation under section 244 of the INA, cancellation of removal under section 240A of the INA;, or special rule cancellation of removal under section 309(f)(1) of the IIRAIRA;
  11. Aliens who have filed applications for creation of a record of lawful admission for permanent residence;
  12. Aliens who have properly filed legalization applications under section 210 or 245A of the INA;
  13. Aliens who are the principle beneficiaries or qualified children of approved VAWA self-petitioners; and
  14. This 180 day automatic EAD extension rule does NOT apply, for example, to applications for extensions of H-4 EADs, L-2 EADs, or E visa EADs.
  • Additionally, USCIS is adopting a filing policy that will generally permit the filing of an EAD renewal application up to 180 days before the current EAD expires (except when impracticable).
  • There will not be an automatic grant of Advanced Parole in conjunction with an EAD. USCIS will continue to grant parole only on a case-by-case basis as appropriate.

New AAO NIW Standard

On December 28, 2016, in a precedent decision, the Administrative Appeals Office (AAO), in the Matter of Dhanasar, set forth a new standard for I-140 EB-2 National Interest Waiver (NIW) petitioners. The decision replaces the current standard with a three-part standard to provide clarity and flexibility. According to the decision, USCIS may grant an NIW if the petitioner demonstrates by the preponderance of the evidence that the following three standards are met:

  1. That the foreign national's proposed endeavor has both substantial merit and national importance. This standard can be met by showing that the foreign national's work has national or even global implications within a particular field.  In the decision, the AAO gives an example of how an entrepreneur can meet this standard "an endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance."
  2. That the foreign national is well positioned to advance the proposed endeavor. The second standard asks whether the foreign national has the "education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals." 
  3. That, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.  In this standard, USCIS will evaluate "whether, in light of the nature of the foreign national's qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification."  

The decision should help entrepreneurs and others who may not have qualified under the NIW standard in the past.