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DHS Regulation Affords New Benefits, Clarifies Limitations on H-1B Extensions and Immigrant Portability

23 Nov

More than fifteen years after Congress passed the American Competitiveness in the Twenty-first Century Act of 2000 (AC-21), and almost two decades after passage of the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), the U.S. Department of Homeland Security (DHS) has finally published a final rule interpreting, clarifying and implementing the legislation. The rule will go into effect January 17, 2017.

When DHS first proposed the rule almost one year ago, the department received thousands of comments, some in favor of, and others against, various provisions that DHS had suggested were largely intended to formalize by regulation the existing CIS interpretation and practice. In response to the comments, DHS revised and further clarified certain provisions prior to publishing the final rule.

As expected, the final rule includes some new, beneficial provisions, but also implements additional limitations on certain benefits provided for by statute.

New Benefits

Admission for Ten Days Before and After Petition Validity – Nonimmigrants in E-1, E-2, E-3, H-1B, L-1, and TN classification are eligible for admission up ten days prior to the validity period of their petition or status authorization, plus an additional ten days after their petition or status authorization expires. Previously these 10-day periods were authorized by regulation only for H-1B nonimmigrants. The 10-day periods are not work-authorized, but are periods of authorized stay during which a request for change or extension of status may be filed.

Sixty-Day Grace Period – Nonimmigrants in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN classification are afforded a “grace period” of up to 60 consecutive days of potential unemployment during each period of authorized status validity, so long as the nonimmigrant does not engage in unlawful employment. This grace period may be shortened by the DHS as a matter of discretion.

Automatic Extension of EAD Card – Applicants for renewal of Employment Authorization Document (EAD) cards under the same eligibility category as previously authorized, and which do not require an adjudication of nonimmigrant status or other basis of eligibility, are afforded an automatic extension of EAD validity for a period of up to 180 days while the EAD renewal application remains pending. This automatic extension of validity would not apply in cases of renewal of EADs for L-2, H-4, or E spouses.

Retention of Priority Date Clarified – Though the concept of retaining an earlier priority date from a previously approved immigrant petition is not new, the DHS final rule confirms that an intending immigrant may retain an earlier priority date despite a previous employer’s withdrawal of the earlier immigrant petition that established the priority date.

Automatic Revocation of Immigrant Petition Clarified – Since the passage of AC-21 in 2000, the impact of employer withdrawal of an I-140 Immigrant Visa Petition has been unclear. At issue was whether CIS revocation after receiving an employer’s request to withdraw the petition would operate to terminate eligibility for H-1B extensions and permanent residency portability. In this final rule DHS clarifies that the CIS will not automatically revoke an I-140 upon employer request for withdrawal if the I-140 has been approved for at least 180 days, or if an I-485 Application to Adjust Status has been on file for at least 180 days. So long as an I-140 has been approved for at least 180 days, an employer’s request for withdrawal of the petition will not impact its validity. A petition that has been approved for at least 180 days will remain approved unless it is revoked due to fraud, misrepresentation, invalidation of the PERM labor certification, or a determination that the original I-140 petition was approved based on material error. These new limitations on automatic revocation serve effectively to limit the impact that a previous employer’s withdrawal might otherwise have on future H-1B extensions and permanent residency portability.

Three-Year H-1B Extension Eligibility Clarified – Under the new regulations, three-year extensions of H-1B status beyond the normal sixth year of H-1B eligibility may be requested until a final decision has been made to revoke the approval of the immigrant visa petition or to approve or deny the I-485 Application to Adjust Status. Current H-1B status is not required, but only the principal beneficiary of the immigrant visa petition is eligible for the additional three-year periods of H-1B status.

New, Compelling Circumstances EAD – Upon demonstrating compelling circumstances, beneficiaries of approved I-140 Immigrant Visa Petitions who hold E-3, H-1B, H-1B1, O-1 or L-1 classification and who are unable to file I-485 Applications to Adjust Status due to the annual immigrant quota may apply for a one-year Employment Authorization Document (EAD). The DHS regulation does not define “compelling circumstances,” but the examples given in the preamble to the regulation indicate the benefit likely will be quite limited. Dependent family members also may apply and be issued an EAD card if the principal is approved and issued an EAD card.

Renewal of the EAD card would require either continued unavailability of an immigrant visa under the immigrant quota and continued or new compelling circumstances or a difference of only one year or less between the priority date and the current date of visa availability according to the Monthly Visa Bulletin.

New Limitations

One-Year H-1B Extensions Limited – Under the new regulation, one-year extensions of H-1B status beyond the normal sixth year of H-1B eligibility based on a PERM application or immigrant petition filed at least one year earlier will be more limited than current CIS practice. An individual will no longer be eligible for additional one-year extensions beyond the sixth year of eligibility if he or she fails to file an Application to Adjust Status (“green card” application) within one year of eligibility. This would require filing an application within one year of the priority date becoming current under the Monthly Visa Bulletin. Only the principal beneficiaries of the labor certification or immigrant visa petition are eligible for the additional one-year periods of H-1B status.

Extensions may be granted until a final decision is reached in the permanent residency process. The CIS will not consider a final decision to be reached so long as the petition is on appeal or within the time frame that an appeal might be filed. However, revocation of an I-140 Immigrant Visa Petition based on employer withdrawal of the petition within 180 days after it has been approved would constitute a final decision, unless an I-485 Application to Adjust Status has already been filed for 180 days at the time of the withdrawal request. Accordingly, a previous employer’s withdrawal of an approved I-140 Immigrant Visa Petition may impact an H-1B nonimmigrant’s future H-1B extensions. New employers will likely want to begin the permanent residency process as soon as practicable for any employee that is dependent upon extensions of status beyond the normal sixth year of eligibility.

Ninety-Day EAD Adjudication Deadline Rescinded – Under the new regulations, the CIS is no longer bound by regulation to adjudicate Applications for Employment Authorization Documents within 90 days of filing. Currently the CIS often fails to meet the regulatory 90-day deadline for EAD adjudications. Once the new regulation goes into effect, CIS adjudicators will no longer be under an obligation to meet any adjudication deadline for EAD applications. Because not all applicants will be eligible for the automatic 180-day extension of EAD validity, it is possible that CIS adjudication delays could result in more employees facing gaps in employment eligibility. Applicants should try to file applications at the earliest possible time, which for most renewal applications will be 120 days before the expiration of the current EAD card.

Foster LLP will continue to monitor the impact of changes in immigration regulations and will provide additional information in future Immigration Updates© and on our firm’s website at www.fosterglobal.com.