DHS Issues Final Rule with Important Changes Benefitting Certain EB-1, EB-2 and EB-3 Immigrant Workers and Highly Skilled Nonimmigrant Workers

Nov 20, 2016

On November 18, 2016, the Department of Homeland Security (“DHS”) published a final rule with provisions that significantly impact certain immigrant and nonimmigrant workers. The new rule can be found at https://www.gpo.gov/fdsys/pkg/FR-2016-11-18/pdf/2016-27540.pdf. The effective date of the new rule is January 17, 2017.

In the Executive Summary to the new rule, DHS expresses that the intent of the new rule is to streamline certain processes and to “better enable U.S. employers to employ and retain highly-skilled workers who are beneficiaries of employment-based immigrant visa (Form I-140) petitions, while increasing the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers, and pursuing other employment opportunities.”

The new rule addresses the following areas:

“¢ H-1B extensions beyond six years under the American Competitiveness Act of the 21st Century (“AC21”)

“¢ INA 204(j) portability allowing certain workers with pending adjustment of status applications to change employers or change jobs with current employers

“¢ H-1B portability allowing workers to begin employment with a new employer upon the filing of a new H-1B petition (also addresses “bridging” situations with multiple, successive H-1B petitions)

“¢ Counting workers against the H-1B cap including clarifying when time spent abroad counts against H-1B time and determining which workers are “cap-exempt” as a result of previously being counted against the cap

“¢ H-1B cap exemption determinations for employers, including clarification regarding the term “related or affiliated nonprofit entity.”

“¢ Protections for H-1B whistleblowers who provide information during investigations related to labor condition applications and related issues

“¢ Survival of an I-140 petition in certain circumstances when an employer attempts to revoke the petition

“¢ The establishment of priority dates in immigrant visa cases

Retention of priority dates when workers change employers or accepts promotions

“¢ Eligibility for employment authorization for backlogged employment-based green card applicants with “compelling circumstances” and which also extends to the applicant’s spouse and children

“¢ Extension of the H-1B’s ten day before and after grace periods to E-1, E-2, E-3, L-1 and TN visa classifications to allow for easier transitions

“¢ Creation of new 60-day grace periods for workers who stop working prior to the end of a non-immigrant validity period (applicable to E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classifications), which will help eliminate gaps in employment when an employee changes employment

“¢ H-1B licensing requirement clarifications

“¢ Automatic extension of EAD validity for 180 days for certain categories of employment authorization cards

“¢ The end of the 90 day adjudication requirement for EADs

As you can see, the new rule includes really important changes. We”™ll keep you updated on these important developments.