The January 2017 Rule

On January 17, 2017, the final rule published by the Department of Homeland Security took effect, codifying many sections of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), as well as many other laws relating to the employment of foreign workers.

We are providing the details of the new rule now and our analyses based upon the implementation of the rule over the last 7 months. The new rule took effect 3 days before the Trump administration took office. As such, we at ImmiCore Law are concerned about the future of this rule, and whether the Trump administration will be revoking these new laws based upon the President’s platform against foreign workers and corresponding Executive Orders issued earlier this year. We will keep you updated if these rules impacted by new legislation.

Below is a summary of the key provisions of the Final Rule.

AC21 106(a) and 106(b) – 1-Year Extensions of H-1B Status Beyond the 6-year Limit Based Upon the Filing of a PERM Application or I-140 Petition

Under Sections 106(a) and (b) of AC21, H-1B holders are able to request 1-year extensions of their H-1B status beyond the 6-year limit if a labor certification application (PERM) or I-140 petition was filed at least 365 days before the 6th year is reached. This extension is available to Beneficiaries both present in the US and outside of the US.

The new rule adds a new restriction to the existing policy: H-1B holders are required to apply for adjustment of status or an immigrant visa within a year of their priority date becoming current and being able to do so. If an H-1B holder fails to file within the 1-year period, the Beneficiary will no longer be able to request 1-year extensions beyond the 6 year limit pursuant to this section.

AC21 106(c) – Adjustment of Status and Job Portability

Under Section 106(c) of AC21, certain foreign workers with immigrant petition sponsorship are able to “port” or transfer their corresponding adjustment of status applications to a new employer if the new job is in the same or similar occupation, and the adjustment application has been pending for at least 180 days. In addition, if an I-140 petition is withdrawn before the adjustment of status application has been pending for 180 days, the foreign worker would not be able to “port” the immigrant petition to the new employer.

The new rule expands on this existing policy: as of January 2017, approved I-140 petitions will not be automatically revoked based upon withdrawal by the petitioner or the termination of a petitioner’s business, so long as the I-140 petition has been approved for at least 180 days at the time of revocation.

There is now a new form that needs to be filed when a foreign worker ports an adjustment of status application to a new employer. Form I-485 Supplement J must now be completed by the worker upon the porting of an adjustment of status application to a new employer, to provide the DHS details as to how the new employment is in the same or similar classification as the original position detailed in the original I-140 petition.

AC21 104(c) – 3-Year Extensions of H-1B Status beyond the 6-year Limit Based Upon an Approved I-140 Petition

Under section 104(c) of AC21, H-1B holders are able to request 3-year extensions of their H-1B status beyond the 6 year limit if they have an approved I-140 immigrant petition. This extension is available to Beneficiaries both present in the US and outside of the US.

The new rule confirms that I-140 petitions that have been approved for at least 180 days will remain valid through the time which the H-1B worker requires extensions of this status. This means that, so long as the petition has been approved for at least 180 days, the withdrawal of the petition by the petitioning employer or the termination of the petitioning employer’s business will not affect the validity of the petition, or the ability of the Beneficiary to seek 3-year extensions while facing an immigrant visa quota backlog.

AC21 105(c) – H-1B Job Portability

The new rule confirms current policy, which allows H-1B holders to start employment with a new employer upon the filing of a change of employer H-1B petition, so long as H-1B holders are in the US in H-1B status, have been lawfully admitted, and have not worked without authorization.

H-1B Licensing

Certain H-1B positions may require a state or local license; in some situations, the licensing authority may not issue a license because an applicant may be missing certain documentation, including a SSN or evidence of employment authorization. The new rule allows for the DHS to approve a 1-year H-1B petitions in such cases. The Beneficiary has to provide evidence that he/she either cannot file a license application, or has a pending license application, neither of which can proceed for lack of a SSN or evidence of employment authorization.

Employment Authorization under Compelling Circumstances

The new rule allows for certain nonimmigrants to apply for a 1-year employment authorization document (EAD) if:

• The worker demonstrates compelling circumstances such as a geographical move due to serious illness or disability; employer retaliation, substantial harm if required to return home, or a significant disruption to employers;
• The worker is in the US and in H-1B, H-1B1, L-1, E-2, or O-1 status; and
• The worker is the Beneficiary of an approved I-140 and no visa is available.

Please note that the DHS has not defined compelling circumstances, but has instead provided the above examples as how to gauge the types of requests that qualify for this benefit.

Employment Authorization Renewals

The new rule allows the USCIS to automatically extend EAD validity periods for up to 180 days if:

 

• The renewal application is filed before the EAD expires;
• The renewal application is for the same visa category.

 

Please note that the new rule has officially eliminated the 90 day regulatory time period the USCIS was required to meet in adjudicating I-765 applications.

Nonimmigrant Grace Periods

10-day Grace Period – The new rule expands the 10-day grace period that is available to H-1B and O-1 visa holders to E-1, E-2, E-3, L-1, and TN classifications, as well as dependents for each respective classification. This 10-day grace period is available prior to the start of the validity period and following the end of the validity period that has existed for H-1B and O-1 visa holders has been extended. Please note that persons in these classifications are not authorized to work during the 10-day grace period.

60-day Grace Period – The new rule now allows for a grace period of up to 60 days upon the termination of employment for workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN status, as well as their dependents. This grace period is only available once during each approved validity period, and the days must be used consecutively. Please note that the grace period is only available to those with a non-immigrant validity period that has not yet expired. This grace period allows workers to seek new employment, change status, or make arrangements to leave the U.S.

Example: An H-1B holder with a validity period through April 7, 2018 is terminated on July 24, 2017. The H-1B holder falls into a 60 day grace period as of July 24th.

Example: An H-1B holder with a validity period through August 1st, 2017 is terminated on July 24, 2017. The H-1B holder will only be able to claim an 8 day grace period through the expiration of the current H-1B on August 1st, 2017.