USCIS Publishes Proposed Rule Affecting High-Skilled Nonimmigrant Workers

Originally published January 4, 2016

On December 31, 2015, the United States Citizenship and Immigration Services (“USCIS”) released a proposed rule that will have a significant impact on foreign nationals in employment-based nonimmigrant status as well as in the long green card queues for immigrant status (“green cards). Note that this is a proposed rule – that means it is not yet in effect. In accordance with the federal regulatory process the public has until February 29, 2016 to submit comments.  After the commentary period, the rule will become effective once it is published in the Federal Register.  Although the rule is only at the proposed stage, it is valuable in that it allows insight into the intent of the USCIS in administering the new regulations as well as the final format.

In publishing the proposed rule, the USCIS stated that the intent of it is to, “modernize and improve certain aspects of employment-based nonimmigrant and immigrant visa programs. USCIS is also proposing regulatory amendments to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents.” “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Worker”, 80 Federal Register 251 (31 December 2015), pp. 81900 – 81945).

The proposed regulations offer a brief summary of a very long history, the proposed rule codifies provisions of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), as amended, and the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA). Much of the proposed rule states longstanding policy and memoranda that the USCIS has used in adjudicating these applications and petitions. In addition, it contains language clarifying the purpose of the proposed regulatory action to assist employers of foreign workers as well as the individual foreign workers and their families by providing, “additional stability and flexibility to employers and workers in those programs.”

Some of the specific provisions clarify longstanding policies in adjudication of cases while other provisions not only clarify but expand benefits. These provisions include:

  • Elimination of the ambiguity surrounding when an I-140 petition may be automatically revoked and no longer used for priority date retention. Revocation of an I-140 petition would be limited to error, fraud, willful misrepresentation and invalidation of the underlying labor certification
  • Revision of regulations with respect to approved I-140 Petitions so that a petition may continue to remain valid, despite withdrawal by the employer or termination of the employer’s business after 180 days or more have passed since the date of approval. This provision is significant in that, when a foreign national changes jobs, and, the former employer withdraws the I-140 petition, or the company dissolves solely on grounds that do not involve an element qualifying for revocation, there would be no effect on retention of the priority date or other benefits that flow from an approved I-140 petition such as an extension of H-1B stay beyond 6 years and Employment Authorization for H-4 spouses. The foreign national and his/her family may also be eligible for the new unrestricted compelling circumstances EAD described below
  • Clarification of the definition of same or similar occupation for foreign nationals. Uses a broad definition thereby allowing employers in certain cases to avoid having to recruit and file a new PERM
  • Allows Foreign nationals to be promoted and otherwise advance their careers without an employer having to recruit and file a new PERM
  • Unrestricted Employment Authorization for certain non-immigrants (E-3, H-1B, H-1B1, L-1 or O-1) based on compelling circumstances. Provides for employment authorization for spouses and children as well as the principal applicant. The principal applicant must have an approved I-140 petition and demonstrate “compelling circumstances.” Compelling circumstances is undefined.
  • Elimination of the 90 day timeframe for the issuance and extension of an Employment Authorization Document (EAD). Proposes an automatic extension of 180 days for certain workers filing renewal requests
  • Non-immigrants in Certain Nonimmigrant employment related classifications would be granted a grace period of up to 10 days before and after their validity period
  • A one-time grace period, upon cessation of employment, of up to 60 days or until the end of their authorized validity period, whichever is shorter, for certain employment based non-immigrant visa holders.
  • Expansion of the number of petitioners that would be considered H-1B cap exempt to include a broader definition of related or affiliated nonprofit entity and clarifies the definition of an institution of higher education.
  • Clarify rules related to exceptions to the requirement that make approval of H-1b petition contingent upon licensure where such licensure is required.

Please note that these are proposed regulations subject to a comment period before they become final.  If you have any questions related to these proposed regulations, please contact STONE GRZEGOREK OR GONZALEZ, LLP attention Kathy Grzegorek (Kathy@sggimmigration), Josie Gonzalez (Josie@sggimmigration.com) or Yeu Hong (Yeu@sggimmigration.com).

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