Obama Administration Issues High-Skilled Worker Immigration Regulation January 17, 2017

By Greg Siskind

One of the last final rules on immigration released by the Obama Administration was one that came in at 350+ pages and addressed dozens of issues relating to H-1B visas, employment-based green card applications and employment authorization documents. The rule took effect on January 17, 2017.

The rule covered the following:

  1. H-1B extensions beyond six years when a green card application is pending
  2. Allowing certain workers with pending adjustment of status applications to change employers
  3. H-1B portability allowing workers to begin employment with a new employer upon the filing of a new H-1B petition
  4. Calculating H-1B time against the six year limit when a worker spends time abroad
  5. H-1B cap exemption determinations for employers
  6. Protections for H-1B whistleblowers
  7. Survival of an I-140 petition when an employer attempts to revoke it
  8. The establishment of priority dates in green card cases
  9. Retention of priority dates when workers change employers or accepts promotions
  10. Eligibility for employment authorization for backlogged employment-based green card applicants with “compelling circumstances”
  11. Extension of the H-1B’s ten day before and after grace periods to E-1, E-2, E-3, L-1 and TN classifications
  12. Creation of new 60-day grace periods for workers who stop working prior to the end of a non-immigrant validity period
  13. H-1B licensing requirements
  14. Automatic extension of EAD validity for 180 days for certain work card categories
  15. The end of the 90-day adjudication requirement for work cards

Many of the changes formalized current USCIS policy such as the rules relating to H-1B extensions and adjustment portability. But other policies are very new and noteworthy.

One of the most important is the ending of the 90-day time limit to issue an employment authorization document (EAD). USCIS attempted to soften the pushback on this by creating a new 180-day automatic extension of work cards when a renewal application is filed. But USCIS listed so many exceptions to this rule that a lot of the benefit is lost. And it is useless for those seeking an initial work card.

A second major change is allowing workers to continue benefiting from an approved I-140 employment-based immigrant visa application if an employer seeks to have the I-140 revoked AND the I-140 has been approved for more than six months. This will make it a lot easier for workers in green card categories backlogged for years to be able to change employers. A new green card application will need to be filed by the new employer, but the worker will still keep his or her place in the long visa queue.

USCIS has created a new 60-day grace period for laid off workers on work visas to remain in status. That’s something that will potentially help workers remain legal in termination situations and provide time to file a new application with a new employer. Unfortunately, the benefit is discretionary and a worker won’t know for sure that he or she is benefiting until after they file an application to change employers.

USCIS has added a new requirement that workers who have current priority dates based on an employment-based green card application must file an adjustment of status application within a year to be able to continue extending an H-1B application.

The government is expanding the evidence it will examine in cases where a state allows an individual without licensure to fully practice in the occupation under the supervision of licensed senior or supervisory personnel to include “evidence that the petitioner is complying with state requirements.” USCIS is also expanding the language regarding how one can demonstrate that a license may not be issued because of the failure to possess a work status and not for substantive reasons.

Many employers will welcome new rules on claiming H-1B cap exemption eligibility. USCIS will now require an employer basing cap exemption on an affiliation with a university or research institution to show that benefiting the university or the research institution is a “fundamental activity” of the employer. In the proposed rule, USCIS was seeking to require the primary purpose of the employer is to benefit the university or research institution. And if a formal affiliation agreement is the basis for the claimed exemption, the entity need not show shared ownership or control. The definition of “governmental research organization” is also being expanded to include state and local governmental research entities.

Finally, for workers with approved I-140s pending for at least a year, if the worker can show “compelling circumstances exist, the worker can seek a one year work card. The worker cannot maintain a non-immigrant visa if this benefit is sought and they would have to accept going to a US consulate overseas to get finalize green card processing. The standard appears to be quite high to get the benefit and many believe few will apply.

Greg Siskind Siskind Susser, PC Immigration Lawyers gsiskind@visalaw.com www.visalaw.com

Greg Siskind
Siskind Susser, PC
Immigration Lawyers