DHS New Regulations, January 2017

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DHS New Regulations, January 2017

Update date:

Friday, December 2, 2016 - 17:05

The Department of Homeland Security (“DHS”) has finalized and published new regulations which were proposed for comments in December 2015, and are set to go into effect as of January 17, 2017. These rules are aimed at certain EB-1, EB-2, and EB-3 immigrant classifications as well as certain high-skilled non-immigrant workers. Below is a highlight of the new regulations, which includes the codification of longstanding DHS policy as well as changes to current regulations.

  •  H-1B extensions of stay under AC21: As a result of the American Competitiveness in the Twenty-First Century Act (“AC21”), H-1B nonimmigrants who are the subject of labor certification applications which have been pending for more than 365 days, or who are the subject of approved immigrant visa petitions but are waiting for an immigrant visa number before they may file to adjust their status, may file to extend their H-1B period beyond the statutory 6-year limit.
  • INA 204(j): DHS is reaffirming that a qualifying immigrant visa petition (I-140 petition) must be approved before DHS examines a portability request. INA 204(j) allows for certain individuals with a pending application for adjustment of status (Form I-485) to move to a job in the same or similar occupational classification, as long as the application for adjustment of status has been pending for 180 days or more.  Further, “material and credible information provided by another Federal agency” will be accepted as supporting evidence for a portability request.
  • H-1B portability: DHS is reaffirming that H-1B nonimmigrants who have maintained their status may start concurrent or new employment upon the filing of a timely and nonfrivolous H-1B petition.
  • Calculation of the maximum H-1B admission period: DHS is reaffirming the ability of an H-1B nonimmigrant to “recapture” time spent physically outside of the United States while in valid H-1B status. This time spent abroad will not be considered when calculating the H-1B nonimmigrant’s total period of authorized stay in the United States under the validity of their H-1B status.
  • H-1B cap exemptions:  DHS is reaffirming Section 103 of AC21 which created an exemption from the H-1B numerical cap for H-1B workers who are employed or offered employment at an institution of higher education, a nonprofit entity related or affiliated to such an institution, or a nonprofit research organization or governmental research organization. Moreover, the rule clarifies that an H-1B worker not directly employed by such a qualifying institution may qualify for an exemption to the H-1B numerical cap if the majority of work time is spent at the qualifying institution and the job duties performed will “predominately further the essential purpose, mission, objectives or functions of the qualifying institution…”  
  • Protection for H-1B whistleblowers: DHS is reaffirming its protection of H-1B nonimmigrant workers who disclose information to aid or participate in investigations regarding alleged violations of Labor Condition Application (“LCA”) obligations. Here, DHS may attribute any resulting failures by the H-1B nonimmigrant to maintain status due to “extraordinary circumstances.”
  • Priority Dates for Certain Classifications:
  • A priority date for an employment based classification, which does not require a labor certification from the Department of labor, is established on the date that the completed, signed petition (with all initial evidence and the correct fee) is properly filed with USCIS;
  • A priority date for an employment based classification, which is accompanied by an application for Schedule A designation, is established on the date that the completed, signed petition (including all initial evidence and the correct fee) is properly filed with USCIS; and,
  • A priority date for an alien who filed for classification as a special immigrant under INA 203(b)(4) prior to October 1, 1991, and who is the beneficiary of an approved petition for special immigrant status after October 1, 1991, is established on the date the alien applied for an immigrant visa or adjustment of status.
  • Retention of priority dates: DHS now requires a “material” error related to an I-140 immigrant visa petition before an individual may lose their priority date. Previously DHS regulations only required that any error would be enough, and not necessarily a material error.
  • Retention of employment-based immigrant visa petitions (form I-140s):  An approved I-140 that is withdrawn by the petitioning employer 180 days or more after its approval, or 180 days or more after an associated adjustment of status application has been filed, will remain approved unless (a) it is revoked by USCIS for fraud or willful misrepresentation, (b) the associated permanent labor certification is revoked or invalidated, or (c) the I-140 petition approval was based on a material error.
  • Eligibility for employment authorization in compelling circumstances: This regulation expands the previous rule and allows for USCIS to determine, as a matter of discretion, that a principal beneficiary, who is the subject of an approved I-140 under the EB-1, EB-2, or EB-3 categories, is eligible for employment authorization based on compelling circumstances. In this situation, spouses and children of the principal beneficiary will also be eligible for employment authorization.
  • 10-day grace period for nonimmigrants entering and leaving the United States:  Nonimmigrants and their dependents who are admissible in E-1, E-2, E-3, H-1B, L-1, or TN classification may be admitted up to 10 days before the validity period begins and up to 10 days after the validity period ends. The nonimmigrant and their dependents may not work during this 10-day grace period unless otherwise authorized.
  • 60-day grace periods for certain nonimmigrant visa classifications: Nonimmigrants and their dependents admitted or provided status in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN visa classifications do not fall out of status at the termination of their employment on which their visa classification was based for up to 60 consecutive days OR the end of the authorized validity period (whichever is shorter), unless DHS eliminates or shortens this period as a matter of discretion.
  • Licensure for certain H-1B specialized occupations: If a license is required for a certain occupation, typically the H-1B worker will be required to hold this license at the time the petition is filed. Under the terms of DHS’ new regulation, individuals who are not licensed to perform these types of occupations may be granted the H-1B classification if they are working under the supervision of a licensed senior. Alternatively, if the H-1B worker would have otherwise been issued the license but for a technical reason (such as the lack of a social security number, or lack of US work authorization at the time of licensure), the H-1B classification may be granted for a period of up to 1 year.
  • Employment Authorization Document (“EAD”) processing times and automatic extension: Under the terms of the new regulations, DHS is no longer requiring that applications for employment authorization be processed within 90 days. In conjunction with this rule, DHS is also allowing for the automatic 180-day extension of employment authorization to individuals who are already the subject of approved and valid EAD applications when they properly and timely file for an extension in the same category of work authorization, should that category still allow for continued work authorization.  This automatic extension will not apply to H-4, L-2, and E non-immigrant spouses seeking renewal of their employment authorization

This update is being provided for informational purposes only. Please contact your MT Law LLC immigration attorney with specific questions or for more details on these regulations.