11/18/2016 - Good News for Those Who Wait?

Good News for Those Who Wait
Can it be true?  Sixty days before the Obama Administration is out, the Department of Homeland Security (“DHS”) is publishing new regulations in the Federal Register today.  These will take effect on January 17, 2017 and will provide benefits to many who are already in the long queue for employment-based permanent residency.  In addition to clarifying and affirming long-standing DHS practices relating to H-1B extensions and exemptions, certain nonimmigrant classifications are now going to have two 10-day grace periods on either ends of the authorized period of stay, while others will also gain a 60-day grace period at the end.  The final rule also provides for a 180-day automatic extension of the employment authorization document if a timely application for renewal has been filed.
Highlights of Changes
10-day Nonimmigrant Grace Periods
Nonimmigrants in the E-1, E-2, E-3, L-1, and TN status will now have a 10-day grace period to enter the U.S. before starting one’s job and another 10-day grace period to wrap up one’s affairs before leaving.  (Current regulations indicate that an officer at the border has the discretion to grant a 10-day grace period at the end of one’s H-1B period of stay.  This is not always granted however.)
60-day Nonimmigrant Grace Period
A welcome relief to many who may find themselves suddenly terminated is a 60-day grace period granted to those individuals in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN classifications.  This means that individuals who have been terminated by their employers will now have up to 60 days to have a new employer file a petition on their behalf.  (This is similar to the 60-day grace period afforded F-1 international students.)
Automatic Extension of EADs
While striking the rule that requires DHS to adjudicate an application for employment authorization document (“EAD”) within 90 days, the final rule allows for an 180-day extension where a request for a renewal of an EAD under the same category has been timely filed.  
Retention of Employment-Based Immigrant Visa Petitions
The final rule provides that a Form I-140 which had been approved for 180 days or more will remain valid and not automatically revoked based on the withdrawal by the petitioner or the termination of the petitioner’s business, unless it was revoked for fraud, willful misrepresentation of a material fact, the invalidation or revocation of a labor certification, or material error.
Eligibility for Employment Authorization in Compelling Circumstances
Where an individual is in E-3, H-1B, H-1B1, L-1, or O-1 status, has an approved Form I-140, and who is awaiting an immigrant visa number to complete her permanent residency process, the individual is eligible for an EAD under “compelling circumstances.”  (Currently, an individual must wait until there is an immigrant visa number before she is able to file Form I-485 adjustment of status application and concurrently request an EAD.  For some, this new rule speeds up the process for obtaining an EAD by years.)
H-1B Approvals without Meeting Licensing Requirement
Under normal circumstances, an H-1B individual must be qualified for the specialty occupation at the time of filing the H-1B petition.  This includes having obtained the degree and any necessary licenses to perform the duties of the specialty occupation.  DHS however has made exceptions and has approved H-1B petitions where the individual did not yet have her license if she could show that but for a technical reason she could not obtain a license necessary to perform the specialty occupation.  The final rule affirms this practice and also explains the evidence needed meet the exception.
Highlights of Clarifications
H-1B Extensions under AC21
While normally one would max out after being in the U.S. for six years in H-1B time, the American Competitiveness in the Twenty-First Century Act (“AC21”) allows an individual who is the beneficiary of a labor certification application filed more than 365 days ago to extend her H-1B stay by at least one year.  It also allows one who is the beneficiary of an approved Form I-140 immigrant petition to extend her H-1B stay by three years if there is no immigrant visa number available to her to complete her permanent residency application.  The final rule sets forth regulations for these statutory provisions.
INA 204(j) Portability
This allows individuals with approved Forms I-140 to change to a job of the same or similar occupation where the Form I-485 adjustment of status application has been filed and pending for more than 180 days.  The final rule addresses how one can prove eligibility under such portability.
H-1B Portability
Employers can employ individuals who are already in H-1B status upon the filing of non-frivolous petitions.  The final rule also explains “bridging” where one is the subject of a string of such H-1B filings.
H-1B Six-Year Cap
The final rule clarifies how individuals are counted against the H-1B six-year cap, including how they may recapture time spent outside of the U.S. at any time before reaching the six-year cap.  It also clarifies that the labor certification, and some instances the Form I-140, does not have to be pending 365 days when the six-year cap is reached.  Instead, the operative time is when the exemption would take effect.  Likewise, under the option to extend an H-1B an additional three years, the unavailability of an immigrant visa number must exist at the time the petition seeking the extension is filed, not at the time the petition is adjudicated.
H-1B Cap Exemptions
The final rule clarifies how to determine if an H-1B nonimmigrant worker is exempt from the H-1B cap based on employment at a nonprofit entity related to or affiliated with an institution of higher education. While the final rule indicates that, where there is a formal affiliation agreement, shared ownership and control does not need to be proven, the “fundamental activity” of the nonprofit entity must directly contribute to the research or educational mission of the institution of higher education.  Additionally, the final rule clarifies that the term “governmental research organization” includes state and local government research entities.
Protections for H-1B Whistleblowers
The final rule addresses conditions for protecting H-1B nonimmigrant workers in the course of aiding in the investigation of violations of the Labor Condition Application (“LCA”).
The above information has been provided for educational purposes only and should not be construed as legal advice.  As the final rule is implemented, there is sure to be further clarification and guidance.  Please consult your Clark Lau LLC attorney for more information, and stay tuned for further changes and updates.

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