USCIS Final Rule Affects Employment Based Immigrant and Nonimmigrant Visa Programs
Back in November 2016, the Department of Homeland Security published a final rule that will change some of its regulations relating to certain employment-based immigrant and nonimmigrant visa programs. The new set of regulations is set to take effect as of January 17, 2017. Given that these changes are supposed to provide various benefits to participants in those programs, including improved processes, increased certainty for U.S. employers and greater stability and job flexibility for workers, it is important to review the effects of these new regulations.
The following will provide a brief summary of the new rules and their intended effects on the employment-based immigrant and nonimmigrant visa programs:
- Establishment of priority dates.For Form I-140 petitions that do not require permanent labor certifications, such as petitions filed under the employment-based first preference immigrant visa (EB-1) and national interest waiver (EB-2) categories, the priority date for the case is generally set as the date of the filing of the I-140. This new regulatory language is consistent with existing DHS practice in establishing priority dates.
- Retention of priority dates. Priority date retention will generally be available as long as the approval of the initial Form I-140 petition was not revoked for fraud, willful misrepresentation of a material fact, the invalidation or revocation of a labor certification, or material error. This rule is meant to enhance job portability for workers with approved I-140 petitions. This rule will allow workers with approved I-140 petitions to accept promotions, change employers, or pursue other employment opportunities without fear of losing their place in line for immigrant visas.
- Retention of employment-based immigrant visa petitions. The final rule states that Form I-140 petitions that have been approved for 180 days or more would no longer be subject to automatic revocation based solely on withdrawal by the petitioner or the termination of the petitioner’s business. This provision is meant to enhance the ability of workers with approved I-140 petitions, but who are unable to apply for LPR status because their priority date is not current, to switch jobs.
- Eligibility for employment authorization in compelling circumstances. The final rule allows individuals in E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status to apply for separate employment authorization for a limited period if there are compelling circumstances that, in the discretion of DHS, justify the issuance of employment authorization. This provision applies to workers with approved I-140 petitions who are unable to apply for LPR status because their priority date is not current.
- 10-day nonimmigrant grace periods. The final rule provides two grace periods of up to 10 days, consistent with those already available to individuals in some nonimmigrant classifications (such as H-1B), to individuals in the E-1, E-2, E-3, L-1, and TN classifications. The rule allows an initial grace period of up to 10 days prior to the start of an authorized validity period, which provides nonimmigrants in the above classifications a reasonable amount of time to enter the United States and prepare to begin employment in the country. The rule also allows a second grace period of up to 10 days after the end of an authorized validity period, which provides a reasonable amount of time for such nonimmigrants to depart the United States or take other actions to extend, change, or otherwise maintain lawful status.
- 60-day nonimmigrant grace periods. The final rule establishes a grace period of up to 60 consecutive days during each authorized validity period for individuals in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classifications. This grace period allows workers in these classifications, including those whose employment ceases or is terminated prior to the end of the petition validity period, to pursue new employment opportunities that will allow them to maintain their current status or obtain a new immigration status without having to immediately leave the United States. The grace period also allows U.S. employers to more easily facilitate changes in employment for existing or newly recruited nonimmigrant workers.
- H-1B licensing. The final rules officially provide for an exception to the H-1B requirement that makes the approval of a case contingent upon the beneficiary having a particular license, if that license is required to perform the duties of the relevant specialty occupation (e.g. architect). This will allow for the temporary approval of an H-1B petition for an otherwise eligible unlicensed worker, if the petitioner can demonstrate that the worker is unable, for certain technical reasons, to obtain the required license before obtaining H-1B status. The final rule also identifies the type of evidence required to approve an H-1B petition on behalf of an unlicensed worker who will work in a state that allows the individual to be employed in the relevant occupation under the supervision of licensed senior or supervisory personnel.
Looking at these new regulations, it is clear that the Department of Homeland Security and USCIS are taking steps in order to provide employment-based immigrant and nonimmigrant visa workers more flexibility with regards to changing employers. Prior to these new rules, various aspects of the employment-based immigration system were often criticized as promoting ‘indentured servitude.’ Employees with employment-based visas had difficulties in switching employers due to fears of losing priority dates, having their approved applications withdrawn, and being forced to leave the country. H-1B workers were often terminated and forced to leave the country as soon as possible due to losing their legal immigration status. These changes are welcomed with open arms.
Earvin Chionglo is a Partner at Nguyen and Chen LLP. He studied biochemistry at the University of Texas at Austin and law at the University of Houston Law Center. He utilizes his vast knowledge to assist clients primarily in matters of immigration, corporate, and employment law. His immigration practice focuses on obtaining employment-based nonimmigrant and immigrant visas for corporate clients and professionals, conducting extensive I-9 audits, obtaining family-based visas for individuals, and representing clients in immigration court proceedings. Earvin’s corporate practice ranges from the creation of new business entities all the way to facilitating acquisitions of companies and entities. His employment practice involves counseling employers on employment agreements, company handbooks, confidentiality and non-compete agreements, compensation issues, and so forth.