DHS publishes new regulations affecting high-skilled non-immigrants, EB-1, EB-2, and EB-3 immigrant workers, and their employers

On November 18, 2016, the Department of Homeland Security (“DHS”) published its final rule affecting high-skilled nonimmigrant workers, EB-1, EB-2, and EB-3 immigrant workers and their employers. This new rule becomes effective January 17, 2017 and contains a number of important changes, as well as codifies a great deal of existing agency policy, including the following provisions:

Immigrant Petitions

• The new rule expands the list of events that can lead to a loss of a priority date. An individual may be stripped of a priority date if the underlying employment based immigrant visa petitions is revoked for fraud, or a willful misrepresentation of a material fact, if DOL revokes an underlying labor certification, if a USCIS or DOS officer invalidates a Labor Certification, or if USCIS determines that the original petition was approved based on a material error.
• Codifies that an approved I-140 remains valid where USCIS determines that a new job offer is in the same or similar occupation as listed in the original approved I-140.
• Explicitly confirms the long-standing policy that an approved petition remains valid indefinitely unless approval is revoked by USCIS or the DOS.
• Provides a new basis for a narrow group of individuals in valid H-1B, L-1, H-1B1, O-1 and E-3 status to obtain employment authorization independent of their current status. A nonimmigrant in one of the aforementioned statuses who is the beneficiary of an approved I-140, is subject to an immigrant visa retrogression, and who can demonstrate “compelling circumstances” may now apply for employment authorization. USCIS has provided examples of compelling circumstances such as serious illness or disability of the nonimmigrant or a dependent family member “that entails the worker moving to a different geographic area for treatment or otherwise substantially changing his or her employment circumstances.” If an individual can establish compelling circumstances, USCIS may in the exercise of discretion issue an Employment Authorization Document or Card (EAD) valid in one year increments. Once the principal worker is granted an EAD under the new rule, his or her spouse and children may also apply. Unfortunately, USCIS makes clear that use of employment authorization granted by the new rule will generally result in a loss of nonimmigrant status and result in, at a minimum, a temporary ineligibility for adjustment of status.
• For renewals for these “compelling circumstance” EADs, the principal worker will need to demonstrate he or she is still subject to an immigrant visa retrogression and compelling circumstances continue to exist. Alternatively, renewals are authorized if the worker’s priority date is one year or less from the Final Action date on the Visa Bulletin in effect at the time the extension application is filed. The principal worker’s spouse and children may apply for a renewal at the same time as the principal worker, but their applications hinge on the principal’s being approved.

Revocation of Approval of Immigrant Petitions

• Modifies the existing revocation rules in light of INA §204(j). The amended revocation rule provides that an employer’s written withdrawal an approved employment based preference petition 180 or more after the petition’s approval or 180 or more days after an associated application for adjustment of status has been filed remains approved for purposes of I.N.A. §204(j).  Prior to this amendment, a written withdrawal would lead to an automatic revocation of the petition.
• Also modifies the existing rule regarding situations where the petitioning employer ceases business.  An approved petition will remain valid if the petitioning employer ceases business 180 or more days after the petition’s approval or 180 or more days after the filing of an associated application for adjustment of status for purposes of 204(j).  Again, prior to this amendment, a petitioning employer’s termination of business was an event that triggered automatic petition revocation.

Non-immigrant Classes

• The new rule allows individuals coming to the U.S. in E-1, E-2, E-3, L-1 and TN nonimmigrant classifications to be admitted up to 10 days prior to the beginning of their authorized employment to permit them sufficient time to arrive, get settled, and begin employment (similar to what is permitted already for H-1B visa holders). These same individuals should also see their admission period include 10 days at the end of their period of authorized employment to permit them time to depart the U.S. or extend, change or otherwise maintain lawful status.
• Establishes by regulation a grace period of up to 60 consecutive days during each authorized validity period for a number of visa categories, including for E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN non-immigrants, in order to permit these high-skilled workers the ability to pursue new employment and an extension of their nonimmigrant status without having to depart the U.S. or needing to file a change of status request to B-2 or dependent non-immigrant status.
• Codifies and expands portability rules previously established under AC21 and subsequent agency guidance, including:
  • An H-1B nonimmigrant may begin concurrent or new employment upon the filing of a non-frivolous H-1B petition on his/her behalf, or at the start date of a requested petition –whichever is later.
  • Successive H-1B portability petitions are allowed – for example, if the H-1B worker was working at Company A, ports to Company B, and while Company B’s petition is still pending, the H-1B worker ports to Company C.
  • Requests to amend or extend any successive H-1B portability petition cannot be approved if a request to amend or for an extension of any preceding H-1B portability petition in the succession is denied, unless the worker’s previously approved H-1B status remains valid.
  • Denial of a successive portability H-1B petition does not preclude an H-1B worker from continuing or resuming working in accordance with a previously approved H-1B petition so long as that prior petition remains valid and the beneficiary has otherwise maintained H-1B status or been in a period of authorized stay and has not work without authorization.
• Explicitly recognizes that some states permit non-licensed individuals to perform work that otherwise requires licensure if they do so under the supervision of a licensed senior or supervisory personnel. The new rule notes that USCIS will consider the nature of the duties, in addition evidence of the identity, physical location and credentials of the person who will be supervising the H-1B worker and the facts must demonstrate that alien will fully perform the duties of the occupation.
• Confirms that DHS may approve, for up to 1 year, an H-1B petition on behalf of a worker who will be employed in a job that requires licensure by a state or local authority if the only things precluding the H-1B worker from obtaining the license are a lack of a social security number or proof of employment authorization, or similar technical requirement. Extensions for these individuals may not be approved unless the petitioner can demonstrate at the time of applying for the extension that the H-1B worker is now licensed in that position, or working in a different position or location that either requires a different license (which the H-1B worker has) or no licensure requirement is applicable in the new location.
• Provides for more consistent adjudication for non-profit employers affiliated with institutions of higher learning and government research organizations filing cap-exempt H-1B petitions, including the potential for non-profit employers and government research organizations to pursue cap-exempt H-1Bs even if they have never previously petitioned for an H-1B employee.
• Prior regs and interim policy memoranda had required cap-exempt non-profits to demonstrate the non-profit was connected to or associated with an institution of higher education through shared oversight or control by the same board or federation, was operated by an institution of higher education, or was attached to an institution of higher education as a member, branch, cooperative, or subsidiary, or proof the organization had been granted a cap-exempt H-1B in the past.  The new rule provides an additional option: proof that the non-profit has entered into a formal written affiliation agreement with an institution of higher education that establishes an active working relationship with the institution of higher ed for purposes of research or education, and that a fundamental activity of the non-profit is to directly contribute to research or education mission of the institution of higher education.
• The new rule also expands cap-exempt status for government research organizations by clarifying that federal, state or local entities whose primary mission is the performance of basic and/or applied research may qualify as cap-exempt. The previous version of the regulations stated a government research organization was a “United States Government entity” so the expansion to state and local government entities engaged in research is notable.
• In addition, an H-1B petitioner who is not a qualifying institution or organization may claim an exemption from the cap for H-1B employees if the majority of his/her duties will be performed at a qualifying institution, organization or entity, and those duties directly and predominantly further the essential purpose, mission or objectives of the organization (higher education or non-profit or government research).
• Clarifies two existing policies of USCIS concerning employees working for cap-exempt and then cap-subjected employers: 1) that an H-1B nonimmigrant working for a cap-exempt organization must be counted against the cap when changing employers to a cap-subject employer if he/she has not previously been counted against the cap within the past 6 years, and 2) concurrent employment with a cap-exempt and cap-subject employer is permitted, but the H-1B nonimmigrant must continue to maintain the cap-exempt employment. Failure to do so may result in USCIS revoking the concurrent, cap-subject petition unless the beneficiary has been counted against the cap within the past 6 years or obtains a new cap-subject H-1B approval.
• Codifies that time spent physically outside the U.S. exceeding 24 hours by an alien during the validity of an H-1B petition approved on the alien’s behalf does not count towards the 6 year maximum. The burden is on the H-1B petitioner to provide evidence in the form of passport stamps, I-94 records, and airline tickets, along with a chart, indicating 24 hour periods spent outside the U.S. when seeking to recapture time and extend the alien’s H-1B status.
• Allows for extension of H-1B status beyond the 6 year maximum under 214(g)(4) when a petitioner can show more than 365 days have passed since it filed a labor cert with DOL under 203(b) or an immigrant visa petition with USCIS under 203(b).  Petitioners may file an H-1B petition seeking a lengthy adjudication delay exemption within 6 months of the requested start date, which may be before 365 days have elapsed since the filing of the Labor Cert or I-140.

Adjustment of Status to that of Person Admitted for Permanent Residence

• EADs may not be issued to an application for adjustment of status under the Haitian Refugee Immigration Fairness Act of 1998 (HRIFA) until the AOS application has been pending for 180 days, with limited exceptions. If USCIS fails to adjudicate the applicants EAD upon expiration of the 180 day waiting period or within 90 days of filing the EAD application (whichever is later), the applicant shall be eligible for an EAD.
• USCIS may require any applicants for adjustment of status based on an approved employment-based immigrant petition to affirmatively demonstrate to USCIS, on Form I-485 Supplement J that the employment offer by the petitioning employer is still valid or the applicant has a new offer of employment from the same petitioner, a new employer, or a new offer based on self-employment in the same or similar occupational classification as the employment offered in the original petition. The qualifying visa petition (the I-140) needs to have already been approved (and not revoked) or still pending when the beneficiary notifies USCIS of a new job offer 180 days or more after he or she filed an I-485 application, and the I-140 is subsequently approved. 

Control of Employment of Aliens

• If an individual’s employment authorization is due to expire, the new regulations require employers to re-verify on Form I-9 (no later than date of expiration of current employment authorization) to reflect the individual is still work-authorized in the U.S. in order to continue his or her employment.
• For persons presenting EADs for I-9, reverification applies upon the expiration of the automatically extended validity period for the EAD (discussed below) and not the expiration date indicated on the face of the EAD.
• EADs that are issued to individuals who are not employment authorized incident to status (and including those filing based on Temporary Protected Status) will have their EADs automatically extended for up to 180 days from the date of their EAD expiration upon timely filing for an extension.
• NOTE: the regulation that provides for automatic extension of EADs also removes the existing regulation requiring USCIS to adjudicate EAD applications within 90 days of receipt. It remains to be seen how this change will affect applicants for initial EADs.

Reminder: new fee schedule from USCIS goes into effect on 12/23

U.S. Citizenship and Immigration Services ("USCIS") published its final rule in the Federal Register on October 24, 2016 announcing the new fee schedule for applications.  The new rule increases fees for most applications and petitions by a weighted average of 21%. Please refer to our update from last month with examples of the fee increases for some of the most common types of applications and petitions. Applicants looking to take advantage of the lower, current fees should ensure any relevant applications to USCIS are filed or postmarked before December 23, 2016. 

New Form I-9 update

In late November, USCIS finally released its updated Form I-9, which will be mandatory for all employers to begin using as of January 22, 2017. Until January 21, employers may continue using the current Form I-9 last revised on March 3, 2013. As they view a revised form in printed format, employers may not notice many differences. The vast majority of the revisions to this recent Form I-9 involve added "smart" features to the PDF version to help employers reduce technical errors when completing the form on the computer after downloading it from the USCIS website. Among a few of the changes employers may see when using the newer, electronic version of the form: certain fields will now give an error message when the entered data does not have the correct number of characters (such as a social security number or date of birth), drop-down lists and calendars have been added for entering dates, and a quick-response matrix barcode ("QR code") will be generated once the form is printed to assist in streamlining audit processes.

 To view the new Form I-9 and see the updated features, please visit the USCIS I-9 Central website. If you have questions concerning I-9 procedures, enforcement actions or preparing to conduct an internal audit of your firm's I-9s, please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com.

OFLC addressing two major PERM issues

Early last week, the Department of Labor's ("DOL") Office of Foreign Labor Certification ("OFLC") met with the American Immigration Lawyer's Association's ("AILA") DOL Liaison Committee for its quarterly stakeholder meeting. During their meeting, representatives from AILA and OFLC discussed a recent issue plaguing employers filing PERM cases on behalf of employees where the employer has used "competitive", "negotiable", "depends on experience", or similar language in reference to salary in some or all of its advertising, resulting in DOL denying the PERM. DOL's reasoning behind these denials was that U.S. workers might have been dissuaded from applying for these positions by the use of this vague (yet very common) language concerning salary. In its meeting last week, OFLC indicated they are closely reviewing a recent BALCA decision on this point (Matter of TekServices) and in the interim they are suspending denials of pending applications that involve this salary language issue.

At that same meeting, AILA and OFLC discussed recent PERM denials based on non-qualified experience in Section H. 14 of ETA Form 9089. For example, if an employer's minimum requirements for the offered position listed in H. 14 involved 5 years experience in software development, in addition to experience with JAVA and .NET, DOL was determining that "5 years experience" applied to both software development and the experience with JAVA and .NET since the employer did not specifiy a different number of months/years experience with those computer languages. DOL was then denying PERM applications where it appeared the alien worker did not have all the necessary experience based on this standard. During the meeting last week, OFLC indicated they are closely reviewing a recent BALCA decision (Matter of Smartzip Analytics) and they are suspending denials of pending applications that involve this H.14 non-qualified experience issue.

A new presidential administration - how much change to expect & how soon?

Given the amount of the rhetoric concerning immigrants that occurred during the 2016 presidential campaign, many members of the immigrant community are nervous about what to expect next. In addition to the foreign nationals living and working in the U.S. feeling uncertain, the companies who employ non-immigrant, professional workers in a variety of employment-based visa categories are also unsure about what the change in presidential administrations will mean for their workforce. 

The U.S. Constitution does not permit a President, acting alone, to repeal or amend laws, statutes, or regulations. A President can, however, undertake actions to reverse some of the policies of his predecessor, particularly if those actions exist only as Executive Actions and are not codified in statutes or agency regulations. The most common types of executive actions include 1) executive orders, 2) discretionary agency directives and guidance, and 3) agency rules. Employers and their foreign national employees should take some comfort in the fact that that agency rules (for example, rules published by the Department of Homeland Security in effect by the time the president-elect takes office) require a significant amount of time to revise or revoke. Agency rules must undergo publication, notice and comment periods before a final rule can take effect, pursuant to the Administrative Procedures Act. Any proposed changes to these rules will be well publicized and the public will have the opportunity to provide input on any changes sought by a new administration, as well as prepare for any ultimate changes to current regulations. On the other hand, discretionary agency directives and guidance do not have the force and effective law, and thus can change with a new president. The same is true of executive orders, written by the President to govern executive branch agencies and officials. 

The president-elect has also made numerous comments criticizing NAFTA, which provides for TN visa status for a number of professionals from Mexico and Canada. While the U.S. has not formally withdrawn from an international trade treaty since the mid-1800s, the NAFTA treaty does contain a provision allowing a country to withdraw from it upon providing 6 months notice to the other parties to the treaty, and the President could do so without consent from Congress. Please stay tuned to our newsletter and our firm's News and Updates section of our website in the coming months for important information regarding any proposed changes or new executive actions that may affect immigrants and work-authorized non-immigrants.

USCIS to use Dates for Filing chart from November Visa Bulletin

Exactly one year after the U.S. Department of State ("DOS") began publishing two charts per visa preference category in its monthly Visa Bulletin, U.S. Citizenship and Immigration Services ("USCIS") announced in September that applicants for Adjustment of Status could use the "Dates for Filing" chart in the October 2016 Visa Bulletin for almost all family-based and employment-based categories. The only notable exception to this change of policy was the 5th preference employment-based category, which must continue to use Final Action Dates. 

When DOS introduced the two chart model in September 2015, USCIS responded by saying each month it would separately indicate whether it would adhere to the Final Dates of Action chart or the Dates for Filing chart for determining whether a foreign national may submit an application to adjust status (commonly referred to as the "green card" application). Between September 2015 and September 2016, USCIS consistently announced that applicants must look to Final Dates of Action before submitting their applications for adjustment of status.  For example in the July 2016 Visa Bulletin, DOS listed the Final Action Dates for the EB-2 category for China as January 1, 2010, meaning Chinese nationals with an approved I-140 listing a priority date of January 1, 2010 or earlier could submit their green card applications. The Dates for Filing in that same visa category was June 1, 2013, but because USCIS did not accept this chart for purposes of filing, applicants had to adhere to the Final Action Dates chart. 

In October 2016, however, USCIS for the first time permitted applicants to look to the Dates for Filing chart for when they could submit green card applications, which has made a significant difference for a number of backlogged categories. In November 2016, USCIS continued this trend, allowing applicants to again refer to the earlier Dates for Filing chart for determining if they may submit their green card applications. This is significant for potential applicants in the EB-2 China, EB-2 India, and EB-3 China categories, who are now eligible to file for green card applications as much as a year and a half earlier than the Final Action Dates charts indicate. For example the November 2016 Visa Bulletin lists EB-2 China Final Action Date as July 15, 2012, whereas the Dates for Filing in the same category is March 1, 2013.  Although applicants are unlikely to see approval of their Adjustment of Status applications prior to the Final Action Dates chart matching their priority date, they still receive some benefits from this earlier filing date. In most circumstances eligible applicants can submit applications for temporary work and travel cards along with their green card applications, and dependent family members may also submit applications, allowing for greater flexibility for work authorization and travel. 

If you have questions about the Visa Bulletin, this recent change of policy by USCIS, or whether you or your company's employees may be affected by this change, please contact one of the attorneys at Iandoli Desai & Cronin P.C. at info@iandoli.com.

New fee schedule form USCIS goes into effect next month

On October 24, 2016, U.S. Citizenship and Immigration Services ("USCIS") published its final rule in the Federal Register announcing the new fee schedule for applications. The new rule increases fees for most applications and petitions by a weighted average of 21%.  Among the most common applications, the fee increases (excluding biometrics fees, in some instances) are:

• I-90 Application to Replace Permanent Resident Card, current fee $365, new fee $455
• I-129 Petition for Nonimmigrant Worker, current fee $325, new fee $460
• I-130 Petition for Alien Relative, current fee $420, new fee $535
• I-140 Immigrant Petition for Alien Worker, current fee $580, new fee $700
• I-485 Application to Register Permanent Residence or Adjust Status, current fee $985, new fee $1140
• I-539 Application to Extend/Change Nonimmigrant Status, current fee $290, new fee $370
• I-601 Application for Waiver of Ground of Excludability, current fee $585, new fee $930
• I-612 Application for Waiver of the Foreign Residence Requirement, current fee $585, new fee $930; and,
• N-400 Application for Naturalization, current fee $595, new fee $640. 

Per the publication in the Federal Register, the new fees are effective for applications received on or after December 23, 2016. Applicants looking to take advantage of the lower, current fees should ensure they submit any relevant applications to USCIS between now and December 22.

CBP procedures after nonimmigrant change of employer

In response to a query by the American Immigration Lawyers Association ("AILA"), Customs and Border Protection ("CBP") recently clarified an important issue regarding the nonimmigrant visa holders who seek to enter the U.S. in H-1B, L-1, O-1, P-1, and R-1 status with visas issued to them before they changed employers. For several years there has been a lack of clarity surrounding whether these nonimmigrants needed to obtain new visas abroad after changing employers, since their unexpired visas listed their first employer ("Employer A"), and the I-797 approval notices they would present to CBP along with their visa at the time of re-entry into the U.S. would list their new employer ("Employer B"). CBP confirmed to the CBP Office of Field Operations Liaison Committee that in most cases applicants do not need to first obtain a new visa annotated with Employer B's name on it -- the applicants may continue to use the visa annotated with Employer A's name, so long as the applicants present a valid I-797 approval notice associated with Employer B at the time of entry.

Although this is the first time CBP has offered this view as an agency, nonimmigrant visa holders should be aware there is still no direct written guidance from CBP on this matter. Despite the lack of official guidance, CBP's offering this view is a positive step perhaps towards a more codified approach that could provide more consistency for nonimmigrants who change employers after first obtaining their visa abroad. If you have questions about visa validity, changes of employer petitions, or CBP procedures, we encourage you to contact us at info@iandoli.com.

USCIS Policy Manual update reflects new HHS rulemaking

On November 2, 2016, U.S. Citizenship and Immigration Services ("USCIS") issued a policy alert on updates the agency is making to its Policy Manual regarding health-related grounds of inadmissibility. These changes are in direct response to the U.S. Department of Health and Human Services ("HHS") rulemaking. This new guidance is retroactive, effective March 28, 2016, and includes several important updates. Most notably, the definition of a Class A condition now includes the failure to present documentation of having received vaccinations against vaccine preventable diseases, the definition of a Class B condition now reflects "health conditions, diseases, or disability serious in degree or permanent in nature," and updates to the definition of physical and mental disorders associated with harmful behavior and the definition of drug abuse and drug addiction. In addition to these updates, the new policy removes 3 medical conditions (chancroid, granuloma inguinale, and lymphogranuloma venereum) from the list of communicable diseases of public health significance that would render an applicant for adjustment of status or an immigrant visa inadmissible on health-related grounds of inadmissibility. 

Electronic Visa Update System becomes mandatory at the end of this month for certain non-immigrant travels to the U.S.

The Department of Homeland Security ("DHS") published its final regulations on October 20, 2016 regarding the Electronic Visa Update System ("EVUS"), a new system for collecting biographic and other information from nonimmigrant aliens coming to the U.S. The nonimmigrant aliens subject to these regulations must periodically enroll in EVUS and obtain a notification of compliance before travel to the U.S., in addition to obtaining a valid visa. The only country / visas the program applies to initially is the People's Republic of China for 10 year B-1, B-2, and combo B1/B2 visas holders, which are general business and tourist travel visas. Before issuing a notification of compliance, the free EVUS system will ask applicants to provide details about their biographical and employment data, travel details, and their contact information in the U.S., as well as questions about public health concern, questions about arrests or convictions for certain crimes, and past history of visa or admission denial.  

The EVUS enrollment will become mandatory on November 29, 2016 and remains valid for two years. This new system requires compliance for both new visa applicants from China, and those already issued B-1, B-2, and combo B1/B2 visas. Travelers who are subject to EVUS requirements but do not have valid enrollments will not be able to obtain a boarding pass or enter through a land port of entry. Please refer to CBP's Frequently Asked Questions on the EVUS system for more details.