On December 31, 2016, USCIS published a comprehensive Proposed Rule in the Federal Register. If the rule is made Final...

On December 31, 2016, USCIS published a comprehensive Proposed Rule in the Federal Register. If the rule is made Final, it will, after more than 15 years, create the first set of regulations implementing the legal changes created by the American Competitiveness in the Twenty First Century Act of 2000 (or “AC21”). In addition to implementing AC21, the regulations also revise the rules for priority date retention and create several new ameliorative measures designed to ensure stable, consistent employment authorization for those foreign nationals involved in the protracted process of seeking U.S. permanent residency based on employment.

The comments accompanying the Proposed Rule make clear that the intent of the regulations is officially to adopt longstanding agency policy, which previously was articulated in various agency memoranda. In addition, the drafters' intent is to create stable employment-authorization as well as job flexibility for individuals who must undergo an extremely protracted application process for permanent residency. This especially is true for Indian and Chinese nationals who in many cases, due to visa backlogs, face a wait time measured in decades to finalize the permanent residency process.

Overview of Proposed Changes

Post Sixth Year H-1B Extensions

AC21 contains two different sections permitting an extension of H-1B status past the sixth year. The first is AC21 § 104(c), which provides:

c) ONE-TIME PROTECTION UNDER PER COUNTRY CEILING- Notwithstanding section 214(g)(4) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(4)), any alien who--

(1) is the beneficiary of a petition filed under section 204(a) of that Act for a preference status under paragraph (1), (2), or (3) of section 203(b) of that Act; and

(2) is eligible to be granted that status but for application of the per country limitations applicable to immigrants under those paragraphs, may apply for, and the Attorney General may grant, an extension of such nonimmigrant status until the alien's application for adjustment of status has been processed and a decision made thereon.

This section provides that anyone for whom an I-140 petition has been approved in the employment-based first, second or third preference categories, may extend H-1B status past the 6th year in 3-year increments, provided their priority date also is not current.

The second provision, found at AC21 § 106(a), provides:

(a) EXEMPTION FROM LIMITATION- The limitation contained in section 214(g)(4) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(4)) with respect to the duration of authorized stay shall not apply to any nonimmigrant alien previously issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) of that Act on whose behalf a petition under section 204(b) of that Act to accord the alien immigrant status under section 203(b) of that Act, or an application for adjustment of status under section 245 of that Act to accord the alien status under such section 203(b), has been filed, if 365 days or more have elapsed since--

(1) the filing of a labor certification application on the alien's behalf (if such certification is required for the alien to obtain status under such section 203(b)); or

(2) the filing of the petition under such section 204(b).

This section allows the beneficiaries of PERM and/or I-140 petitions, on whose behalf a PERM or I-140 was filed at least 365 days ago, to file for a post 6th year H-1B extension so long as a final decision has not yet been made to deny the PERM, I-140 or I-485 application. USCIS has clarified via a 2008 policy memorandum that H-1B extensions are not available under this provision if the I-140 petition is not filed within 180 days of the labor certification approval, since the labor certification will then be expired and unusable. The memo also clarifies, however, that H-1B extensions are permitted under this provision if the labor certification or I-140 petition has been denied and remains under appeal.

The Proposed Rule would retain these provisions as elucidated by memoranda over the years. In addition, the new rule makes clear that the petition may be filed in advance of the beneficiary becoming eligible for the post 6th year extension if, by the time of the requested start date, the requirements are met for that extension. In addition, the rule makes clear that the post 6th year extension request can be filed concurrently with, and combined with, a request for “recapture.” While this has been USCIS policy all along, it has never been clearly articulated. It should also be noted that the Proposed Rule would limit one's ability to continue obtaining post 6th year H-1B extensions in the event that the alien fails to make an application for an immigrant visa within 1 year of a visa number becoming available; with the proviso that a new 1-year period shall be afforded in the event of priority date retrogression or unavailability, beginning upon the date when a visa number again becomes available. This is a significant clarification of current policy. While the term “make an application” is not defined in the regulations, it seems likely that USCIS will apply a standard similar to that used in the context of the Child Status Protection Act, which also cuts of eligibility for immigration benefits based upon a failure to pursue an available permanent residency application based on “seeking to acquire” an immigrant visa. The agency guidance in that context will therefore likely be applicable.

H-1B Portability

H-1B portability was established by section 105 of AC21, and states:

(1) A nonimmigrant alien described in paragraph (2) who was previously issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) is authorized to accept new employment upon the filing by the prospective employer of a new petition on behalf of such nonimmigrant as provided under subsection (a). Employment authorization shall continue for such alien until the new petition is adjudicated. If the new petition is denied, such authorization shall cease.

“(2) A nonimmigrant alien described in this paragraph is a nonimmigrant alien--

“(A) who has been lawfully admitted into the United States;

“(B) on whose behalf an employer has filed nonfrivolous petition for new employment before the date of expiration of the period of stay authorized by the Attorney General; and

“(C) who, subsequent to such lawful admission, has not been employed without authorization in the United States before the filing of such petition.”.

Basically, an H-1B nonimmigrant can start working for a new employer so long as he was previously admitted to the U.S. in H-1B status; never worked without authorization; and has had a new H-1B petition filed on his behalf. (USCIS has also extended this policy, by memorandum, to amended petitions filed by the same employer).

The Proposed Rule retains this historic agency interpretation but does not explicitly extend the H-1B portability provision to amendments filed by the same employer. Therefore there is some question as to whether the USCIS memo regarding porting and amendments filed by the same employer will continue to apply after implementation of this rule. It has also historically been unclear whether individuals who initially entered the U.S. in H-1B status are eligible to port if they have since changed to another nonimmigrant status such as H-4 or TN. A plain reading of AC21 would indicate that it is possible for such individuals to port; however, USCIS has programmed E-Verify such that these individuals are not considered to be employment authorized. The new rule does not clarify this issue but merely reiterates the statutory provision. This issue will remain a legal gray area if the rule is implemented as is.

Finally, the Proposed Rule also clarifies that the H-1B beneficiary need not be physically present in the United States in order to file for a post 6th year H-1B extension. While this appears to have been historic USCIS practice, it has never before been clearly articulated.

Permanent Portability

Permanent portability was established by section 106(c) of AC21, which provides:

(c) INCREASED JOB FLEXIBILITY FOR LONG DELAYED APPLICANTS FOR ADJUSTMENT OF STATUS- (1) Section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) is amended by adding at the end the following new subsection:

“(j) JOB FLEXIBILITY FOR LONG DELAYED APPLICANTS FOR ADJUSTMENT OF STATUS TO PERMANENT RESIDENCE- A petition under subsection (a)(1)(D)for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed.”.

(2) Section 212(a)(5)(A) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5)(A))is amended by adding at the end the following new clause:

“(iv) LONG DELAYED ADJUSTMENT APPLICANTS- A certification made under clause (i) with respect to an individual whose petition is covered by section 204(j) shall remain valid with respect to a new job accepted by the individual after the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the certification was issued.”.

To summarize, AC21's Permanent Portability provision permits individuals on whose behalf an I-140 petition has been approved and whose I-485 application has been pending for at least 180 days to switch jobs to a new position in the same or a similar occupational classification. The Proposed Rule creates a new requirement that the underlying I-140 must not have been revoked. It also requires the new employer to sign an attestation regarding the nature of the new employment offer, its requirements and a description of duties in the new position, and stating that the employer intends that the applicant will commence the employment described in the new employment offer within a reasonable period of adjustment of status. The attestation will also need to establish that the new job is in the same or a similar occupational classification. This new attestation requirement differs somewhat from current practice, which does not require an affirmative filing when an alien changes jobs. Typically USCIS sends an RFE when getting ready to adjudicate the I-485 which requests updated proof of employment and/or evidence of porting. The proposed regulations also create a regulatory definition of “same or similar” with regard to the job offer, which previously was established only through memoranda.

Priority Date Retention

The current regulations on priority date retention, at 8 CFR 204.5(e), state:

A petition approved on behalf of an alien under sections 203(b) (1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b) (1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b) (1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien.

A plain reading of the regulations indicates that one can only retain a priority date established by an earlier approved I-140 which has not been revoked for ANY REASON.

However, the USCIS Adjudicator's Field Manual, at Chapter 22.2(b)(5)(A)(5), states the following:

(A) Determining the Priority Date. In general, if a petition is supported by an individual labor certification issued by DOL, the priority date is the earliest date upon which the labor certification application was filed with DOL. In those cases where the alien's priority date is established by the filing of the labor certification, once the alien's Form I-140 petition has been approved, the alien beneficiary retains his or her priority date as established by the filing of the labor certification for any future Form I-140 petitions, unless the previously approved Form I-140 petition has been revoked because of fraud or willful misrepresentation. [Emphasis added].

This indicates that once someone has an approved I-140 for an EB2 or EB3 petition, they can retain it for life and can apply it to any subsequent EB1, EB2 or EB3 petition to retain or recapture the priority date, and that the person only loses the priority date if the earlier I-140 is revoked for fraud or willful misrepresentation. Similar language is found in 9 FAM 42.53 Note 3.5. This is much different from the regulatory language which indicates that a petition which is revoked for ANY reason cannot serve to retain a priority date.

In the author's experience, USCIS has historically followed the Adjudicator's Field Manual and the FAM and has not adhered to the more narrow regulatory language. But arguably they should as they are bound by the regulations. Moreover, there was a recent BIA decision (meaning it is only binding on the parties to the case) called In Re Grace Estrallado, which found that a revoked I-140 cannot be used to confer an earlier priority date on a later filed petition-- i.e., it followed the regulations rather than the more generous agency guidance. So that case casts some doubt on what USCIS will do in any individual matter.

The proposed regulations would significantly modify the current regulatory provision for priority date retention to bring it more into line with actual agency practice. The new regulations would state:

(1)A petition approved on behalf of an alien under sections 203(b) (1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b) (1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b) (1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date.
(2)The priority date of a petition may not be retained under paragraph (e)(1) of this section if at any time USCIS revokes the approval of the petition because of:
   (i)Fraud, or a willful misrepresentation of a material fact;
   (ii)Revocation by the Department of Labor of the approved permanent labor certification that accompanied the petition;
   (iii)Invalidation by USCIS or the Department of State of the permanent labor certification that accompanied the petition; or
   (iv)A determination by USCIS that petition approval was in error.
(3)A denied petition will not establish a priority date.
(4)A priority date is not transferrable to another alien.
(5)A petition filed under section 204(a)(1)(F) of the Act for an alien shall remain valid with respect to a new employment offer as determined by USCIS under section 204(j) of the Act and 8 CFR 245.25. An alien will continue to be afforded the priority date of such petition, if the requirements of paragraph (e) of this section are met.

Under the new provision, individuals would be able to retain priority dates from prior approved petitions that have been revoked unless they are revoked for fraud or similar grounds.

Grounds for Automatic I-140 Revocation

The Proposed Rule would also modify the related regulations at 8 CFR 205, regarding the grounds for revocation of an I-140 petition. The current section 205 permits I-140 petitioners to withdraw, and USCIS to consequently revoke, an approved I-140 petition at any time and for any reason. USCIS also automatically revokes petitions in cases where the I-140 petitioner has gone out of business. Under the new regulations, however, USCIS will not revoke I-140 petitions in cases where the petitioner submits a written request for withdrawal, or where the petitioner goes out of business, more than 180 days after the petition has been approved. The new section 205 also clarifies that even revocation of the petition under this section will not invalidate priority date retention.

Eligibility for Employment Authorization in “Compelling Circumstances”

The Proposed Rule would also create a new, and very narrowly tailored provision that would allow individuals in E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status to obtain employment authorization if (a) an I-140 petition in the EB1, EB2 or EB3 classification is approved on his behalf; (b) his priority date is not yet current but is 1 year or less from being current at the time the EAD application is filed; and (c) the principal immigrant demonstrates, and USCIS accepts as a matter of discretion, compelling circumstances that justify issuance of the employment authorization. Employment authorization would also be available to his spouse and/or children even if they are not maintaining status. Renewals of employment authorization will also be available if compelling circumstances continue to exist and the visa number continues to be a year or less behind the principal's priority date, as in the case of retrogression. This new type of employment authorization will be available only in 1-year increments.

This provision creates troubling implications under current USCIS guidance on unlawful presence which are not addressed by the rule. Under current guidance, individuals whose nonimmigrant status has expired and who have not yet filed for adjustment of status are accruing unlawful presence. In order for this new EAD provision to be an effective remedy, USCIS needs to amend its unlawful presence guidance to account for this new class of foreign nationals that will be permitted to remain physically present in the U.S. while out of status.

Automatic EAD Extensions

The Proposed Rule significantly would amend section 274a.12 of 8 CFR to automatically grant an extension of employment authorization to individuals who timely file for an EAD renewal, for up to 180 days while that application is pending. Currently the regulations do not permit individuals to work during any gaps between EAD validity periods. Therefore USCIS processing delays on EAD applications can cause people to temporarily lose employment authorization. The new regulations would remedy that problem. The new provision only applies to EAD applications filed based on the same regulatory classification as the previously issued EAD.

Additional 10 day Admission Period

Current regulations at 8 CFR 214.2(h)(13)(i)(A) permit H-1B nonimmigrants to enter the U.S. up to 10 days before the validity period of the approved petition and to remain in the U.S. for up to 10 days after the petition expires. The Proposed Rule would extend this provision to other nonimmigrant classifications including E-1, E-2, E-3, H-1B, L-1 and TN classifications.

Currently CBP does not routinely give H-1B holders the additional 10 days in their I-94 validity period unless requested at the time of entry; the same would likely be true for the other nonimmigrant classifications going forward.

It is not clear whether the additional 10 days before and after the petition starts and ends would count toward the maximum period of stay in H/L classification.

One Time Nonimmigrant Grace Period

The Proposed Rule also would establish a one-time, 60-day grace period for nonimmigrants in E-1, E-2, E-3, H-1B, L-1 or TN classifications (and their dependents), and would allow the individual to apply for and be granted an extension of stay following termination of employment. The individual would be authorized to remain in the U.S. during the period but would not be permitted to work.

The language of this proposed provision is muddled. For instance, it states that it is authorized “for a one-time period during any authorized validity period,” but it is not clear what the “validity period” refers to— i.e. it could mean the validity period of an underlying approved petition (which would be weird, because E-1, E-2, E-3 and TN holders don't typically have underlying approved petitions); it could refer to the visa validity period; it could refer to the time period elapsed since the person's last admission to the U.S.; or it could mean that each person only gets to use the 60 day grace period once in his or her lifetime. That needs to be clarified. It is also unclear whether individuals accrue any unlawful presence during this period and if not, the current guidance on unlawful presence will need to be amended.

It is also unclear how this provision will play out practically, because it takes USCIS longer than 60 days to adjudicate a typical extension of stay request and individuals typically will have left the US by the time this benefit application is picked up for adjudication. This may well prove to be a meaningless benefit.

New Rules for H-1B Cap Exemption and Professional Licensure Requirements

Finally, the Proposed Rule clarifies the provisions permitting H-1B cap exemption for nonprofit entities that are affiliated with institutions of higher education, and for working in professions which require a license. While the licensure provisions in the new regulations would follow current agency procedure, the rules for determining cap exemption based on affiliation would be much more generous than what current agency policy authorizes. Moreover, current USCIS policy only recognizes that a nonprofit is “affiliated with” an institution of higher education if the nonprofit is operated by the college or university; is connected through shared ownership and control by a common board of directors; or is a member, branch, cooperative or subsidiary of the college or university. Under the Proposed Rule, however, affiliation would also be recognized, even absent shared ownership and control, if there is a “formal written affiliation agreement - that establishes an active working relationship between the nonprofit entity and the institution of higher education for the purposes of research and/or education, and a primary purpose of the nonprofit entity is to directly contribute to the research or education mission of the institution of higher education.” This is a much needed change to current policy.

In summary, the Proposed Rule does much to ensure consistency in employment authorization for nonimmigrants, and in particular for those nonimmigrants who are also pursuing applications for permanent residency in the United States. It also allows USCIS to more favorably exercise discretion on behalf of these individuals in a number of different circumstances. However, there remain some portions of the Proposed Rule which require further clarification and/or additional guidance, particularly for those provisions which appear to permit individuals to remain in the United States and to be lawfully employed while out of status and accruing unlawful presence.