New Immigration Regulations Provide Grace Periods and Clarifications for High-Skilled Workers

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Effective January 17, 2017, new immigration regulations will take effect that clarify long-established practices and provide grace periods for high-skilled individuals. The Alliance of Business Immigration Lawyers predicts the new regulations will help many foreign nationals.

The new regulations are a welcome relief to many high-skilled workers who, in the past, could lose their status overnight with any corporate changes and layoffs. The new regulations allow them to plan their lives more reasonably.

Effective January 17, 2017, new immigration regulations will provide benefits to many high-skilled workers who are already in the long queue for employment-based permanent residency. In addition to clarifying and affirming long-standing Department of Homeland Security (“DHS”) practices relating to H-1B extensions and exemptions, certain nonimmigrants will have two 10-day grace periods on either end of their authorized period of stay, while others will gain a 60-day grace period at the end. The final rule also provides for a 180-day automatic extension of the employment authorization document if a timely application for renewal is filed.

Highlights of Changes

10-day Nonimmigrant Grace Periods
Nonimmigrants in E-1, E-2, E-3, L-1, and TN status will now have a 10-day grace period to enter the U.S. before starting their job and another 10-day grace period to wrap up their affairs before leaving. (Current regulations indicate that an officer at the border has discretion to grant a 10-day grace period at the end of one’s H-1B period of stay. This was not always granted, however.)

60-day Nonimmigrant Grace Period
A welcome relief to many who may find themselves suddenly terminated is a 60-day grace period granted to nonimmigrant workers in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN classifications. This means that individuals who have been terminated by their employers will now have up to 60 days to have a new employer file a petition on their behalf. (This is similar to the 60-day grace period currently afforded F-1 international students.)

Automatic Extension of EADs
While eliminating the rule that requires DHS to adjudicate an application for employment authorization document (“EAD”) within 90 days, the regulations allow for an automatic 180-day extension where a request for a renewal of an EAD under the same category has been timely filed.

Retention of Employment-Based Immigrant Visa Petitions
The new regulations provide that a Form I-140 that had been approved for 180 days or more will remain valid and not automatically revoked based on the withdrawal by the petitioner or the termination of the petitioner’s business, unless it was revoked for fraud, willful misrepresentation of a material fact, the invalidation or revocation of a labor certification, or material error.

Eligibility for Employment Authorization in Compelling Circumstances
Where an individual is in E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status, has an approved Form I-140, and who is awaiting an immigrant visa number to complete her permanent residency process, the individual is eligible for an EAD under “compelling circumstances.” (Currently, an individual must wait until there is an immigrant visa number before she is able to file Form I-485 adjustment of status application and concurrently request an EAD. For some, this new rule speeds up the process for obtaining an EAD by years.)

H-1B Approvals without Meeting Licensing Requirement
Under normal circumstances, an H-1B individual must be qualified for the specialty occupation at the time of filing the H-1B petition. This includes having obtained the degree and any necessary licenses to perform the duties of the specialty occupation. In the past, however, DHS has sometimes made exceptions and approved H-1B petitions where the individual did not yet have her license if she could show that but for a technical reason she could not obtain a license necessary to perform the specialty occupation. The new regulations affirm this practice and also explain the evidence needed meet the exception.

Highlights of Clarifications

H-1B Extensions under AC21
While normally one would max out after being in the U.S. for six years in H-1B time, the American Competitiveness in the Twenty-First Century Act (“AC21”) allows an individual who is the beneficiary of a labor certification application filed more than 365 days ago to extend her H-1B stay by at least one year. It also allows one who is the beneficiary of an approved Form I-140 immigrant petition to extend her H-1B stay by three years if there is no immigrant visa number available to her to complete her permanent residency application. The new regulations confirm these statutory provisions.

INA 204(j) Portability
The new regulations allow individuals with approved Forms I-140 to change to a job of the same or similar occupation where the Form I-485 adjustment of status application has been filed and pending for more than 180 days. The regulations address how one can prove eligibility under such portability.

H-1B Portability
Employers can already employ individuals who are already in H-1B status upon the filing of non-frivolous petitions. The new regulations explain “bridging” where one is the subject of a string of such H-1B filings.

H-1B Six-Year Cap
The regulations clarify how individuals are counted against the H-1B six-year cap, including how they may recapture time spent outside of the U.S. at any time before reaching the six-year cap. The regulations also clarify that the labor certification, and some instances the Form I-140, do not have to be pending 365 days when the six-year cap is reached. Instead, the operative time is when the exemption would take effect. Likewise, under the option to extend an H-1B for an additional three years, the unavailability of an immigrant visa number must exist at the time the petition seeking the extension is filed, not at the time the petition is adjudicated.

H-1B Cap Exemptions
The new regulations clarify how to determine if an H-1B nonimmigrant worker is exempt from the H-1B cap based on employment at a nonprofit entity related to or affiliated with an institution of higher education. While the regulations indicate that, where there is a formal affiliation agreement, shared ownership and control does not need to be proven, the “fundamental activity” of the nonprofit entity must directly contribute to the research or educational mission of the institution of higher education. Additionally, the regulations clarify that the term “governmental research organization” includes state and local government research entities.

Protections for H-1B Whistleblowers
The new regulations address conditions for protecting H-1B nonimmigrant workers in the course of aiding in the investigation of violations of the Labor Condition Application (“LCA”).

The above information has been provided for educational purposes only and should not be construed as legal advice. Please be sure to contact ABIL attorneys for further guidance as to how the above may impact your particular circumstances.

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Lauren Anderson
@ABILImmigration
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