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DHS Final Rule on Highly Skilled Workers Takes Effect January 17

January 12, 2017
On November 18, 2016, the U.S. Department of Homeland Security (DHS) issued its final rule on highly skilled workers, which will take effect on Tuesday, January 17, 2017. In keeping with the intent of the American Competitiveness in the 21st Century Act (AC21), the regulation …
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On November 18, 2016, the U.S. Department of Homeland Security (DHS) issued its final rule on highly skilled workers, which will take effect on Tuesday, January 17, 2017.

In keeping with the intent of the American Competitiveness in the 21st Century Act (AC21), the regulation is aimed at streamlining the employment-based green card process, increasing job portability, and providing stability and job flexibility for foreign national employees.  The new rule codifies a number of policies developed by U.S. Citizenship & Immigration Services (USCIS) that have benefitted U.S. employers seeking to hire and retain nonimmigrant workers, particularly those subject to long delays in the green card process.   Further, to provide additional stability and certainty to U.S. employers and individuals eligible for employment authorization in the U.S., the final rule revises several DHS regulations governing the processing of applications for employment authorization.

Key provisions of the final rule include the following:

Grace Periods:

  • Provides for 10-day nonimmigrant grace periods for E-1, E-2, E-3, L-1, O-1, and TN nonimmigrant workers, at both the start and end of an authorized validity period in order to provide a reasonable amount of time for these individuals to prepare to begin employment in the country and to also depart the U.S. or take other actions to extend, change, or otherwise maintain lawful status. Employment authorization is not permitted during these periods. This adds to the category of nonimmigrant workers in H-1B status, who already benefited from these 10-day grace periods.
  • Provides that USCIS may recognize a discretionary grace period of up to 60 days (not to exceed authorized validity period) for nonimmigrant workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN status, when employment ends before the end of an authorized validity period, so that nonimmigrant workers may more readily pursue new employment or timely file an extension/change of their nonimmigrant status, and so that U.S. employers can more easily facilitate changes in employment for existing or newly recruited nonimmigrant workers.

Employment Authorization:

  • Allows for automatic extension of Employment Authorization Document (EAD) validity for 15 categories of individuals, including Adjustment of Status (AOS) applicants, those with Temporary Protected Status (TPS), refugees, and asylees, of up to 180 days with a timely filed renewal application.  The automatic extension of validity does not apply to renewal EADs issued pursuant to L-2 status, H-4 status, or F-1 OPT status. The rule also eliminates the regulatory 90-day EAD processing time. It has been noted that the USCIS website will be updated to include the filing policy and full list of categories to be included. Further, it has been noted that EAD renewal applications may now be accepted up to 180 days prior to EAD expiry (including applications by those in L-2 and H-4 status). Current USCIS policy only allows for EAD renewal applications to be filed up to 120 days in advance of expiry.
  • Provides the ability to apply for separate work authorization in one-year increments for E-3, H-1B, H-1B1, O-1, and L-1 nonimmigrant workers who possess approved I-140 immigrant visa petitions but are subject to immigrant visa backlogs if they can demonstrate “compelling circumstances.” Examples of “compelling circumstances” include serious illness, significant disruption to the employer, or employer retaliation, but not mere financial hardship due to job loss of the nonimmigrant worker. If an individual accepts employment authorization in these circumstances, the underlying nonimmigrant status is terminated.

H-1B Provisions:

  • Allows employers to submit additional H-1B portability petitions for nonimmigrant workers, including filing of successive “bridge” H-1B portability petitions.
  • Provides clarification on H-1B cap exemptions, H-1B recapture time, H-1B licensure requirements, and whistleblower protections.

I-140 Petitions, Priority Date Retention & AC21 Extensions:

  • Allows for I-140 immigrant petitions that have been approved for 180 days or more to remain valid for priority date retention and H-1B extensions, even if the petitioning employer goes out of business or withdraws the petition (for reasons other than fraud, willful misrepresentation, material error, etc.). For I-140 immigrant petitions that are withdrawn prior to being approved for at least 180 days, priority date retention is still allowed, while AC21 H-1B extensions are not.

AOS Portability:

  • Discusses AOS portability where an I-485 application has been pending for more than 180 days and includes new portability request requirements through Supplement J of Form I-485.

To discuss these and other new changes in further detail, Gibney will be conducting a free webinar in the coming weeks. If you have any questions regarding this alert, please contact your designated Gibney representative, or email