The USCIS released last November 18 a final rule aimed at improving the processes for certain employment-based immigrant and nonimmigrant visa programs for highly skilled workers. Called, “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers”, it goes into effect on January 17, 2017.
The new rule is intended to improve the ability of employers to hire and retain highly-skilled workers who are beneficiaries of approved immigrant visa petitions, improve the process of sponsoring nonimmigrant workers for lawful permanent resident (LPR) status and increase the ability of foreign workers to seek better employment opportunities, seek promotions, and change employers, if necessary to further their career.
The changes under the rule conform DHS regulations to existing policies and practices implementing the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) and the American Competitiveness in the Twenty-first Century Act of 2000 (AC21).
The changes would benefit immigrant workers because they clarify and expand when immigrant workers may keep their priority date when applying for adjustment of status. While priority dates cannot be transferred to another alien, it can be retained by an alien for his subsequently filed EB-1, EB-2 or EB-3 petition 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 will help certain workers accept promotions, change employers, or pursue other employment opportunities without fear of losing their place in line for immigrant visas.
For certain workers with approved Form I-140 petitions in the EB-1, EB-2 or EB-3 categories, but who are unable to obtain LPR status due to immigrant visa backlogs, the final rule provides 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. The petition will continue to be valid for certain purposes like retention of priority dates, job portability and extension of status.
The job portability provision establishes two grace periods of up to 10 days for individuals in the E-1, E-2, E-3, L-1, H-1B and TN classifications including their family members which may be granted to these nonimmigrants at the time of admission or upon approval of an extension of stay or change of status.
A grace period of up to 60 consecutive days is also established for those in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classifications whose employment has ended prior to the end of the period of validity of their petition so they may be able to find new employment opportunities or extend their nonimmigrant status.
A one-year employment authorization for beneficiaries of an approved EB-1, EB-2 or EB-3 immigrant visa petition is also available if they are currently in the US in E3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status and if an immigrant visa is not yet immediately available to them and they can show compelling reasons for the issuance. Their family members can also obtain employment authorization although this cannot be granted until the principal is granted.
Application to renew employment authorization is also allowed prior to the expiration of the initial grant as long as the alien worker can demonstrate that he continues to face compelling circumstances and he is the principal beneficiary of an approved EB-1, EB-2 or EB-3 petition and either an immigrant visa is not readily available or there is only 1 year or less difference between his priority date and the Final Action Date listed in the visa bulletin for his category and country of chargeability. This eligibility also extends to family members but cannot be granted until the principal is granted.
The new rule also clarifies some policies and procedures pertaining to the H-1B program such as providing H-1B status, beyond the six-year period of admission, determining cap extension, H-1B probability and license requirements.