November 18, 2016

In the November 18, 2016, Federal Register, (Vol. 81, No.223) USCIS promulgated a Final Rule issuing long-awaited regulations implementing both the American Competitiveness in the 21st Century Act of 2000 and the American Workforce Improvement Act of 1998. This regulation will become effective on January 17, 2017, and largely conforms to what are by now established Agency policies and practices, with some notable exceptions.

This significant rule covers:

  • H-1B portability, including “bridging”;
  • How beneficiaries are counted against the H-1B cap & no limit on recapture time;
  • I-140 portability for adjustment of status under INA §204(j);
  • Expanded definition of H-1B cap-exempt non-profit entities;
  • When approved I-140 petitions remain valid & retention of priority date;
  • H-1B licensing issues & whistleblower protections;
  • Grace periods for certain nonimmigrants;
  • Automatic extension of validity of some Employment Authorization Documents based on USCIS receipt of a timely-filed application for extension;
  • New “compelling circumstances” EAD for certain nonimmigrants with an approved I-140 petition.


H-1B portability under INA §212(n) & AC21 §105(a):

The new regulation 8 CFR §214.2(h)(2)(i)(H) allows an H-1B worker who is the beneficiary of a petition seeking extension or amendment of stay for new or concurrent employment to begin work for the new employer upon filing of a non-frivolous petition. The worker must have been lawfully admitted, must not have worked without authorization, and must be in a period of authorized stay at the time the new or amended petition is filed.

Bridging is allowed: where the worker is employed under H-1B portability with a pending petition at employer B, that was timely filed with proof of maintenance of status at employer A, the worker may port again to employer C while the petition by B is still pending, so long as the worker’s I-94 (under the approval for employer A) remains unexpired.

Cap-exempt to cap-subject porting:
This Final Rule clarifies that when an H-1B worker ports from a cap-exempt employer to a new concurrent cap-subject employer, the cap-exempt employment must continue, or the cap-subject petition will be revoked. For concurrent cap-subject jobs,  validity of the cap-subject petition cannot continue past the end date of approved cap-exempt employment, per new 8 CFR §214.2(h)(8)(ii)(F)(6)(i). The regulation is silent as to the permissible start date, but the Final Rule appears to put a stop to the long-standing practice that permitted cap-exempt to cap-subject porting before October 1, per correspondence of Efren Hernandez and Naomi Schorr. See preamble section III.A.2.ii.c, entitled “Portability to new employment subject to the cap”  at 81 FR 82441.


I-140 Portability for adjustment of status under INA §204(j):

The Final Rule introduces Form I-485 Supplement J, to request portability and document a bona fide job offer in the same or similar occupation in order to establish continued eligibility for adjustment of status, based on an approved I-140 petition, an I-485 application which has been pending for 180 days, and a new job offer from a different employer. A list of specific types of documentary evidence in support of this form was deleted from the Proposed Rule, as was reliance on Standard Occupational Classification codes, so the Final Rule preserves the goal of flexibility and job mobility. The rule states that a pending I-140 petition may be approved and used for adjustment of status if the petitioner established its ability to pay at time of filing, and if all other eligibility criteria were met at time of I-140 filing, and those criteria are still met with the new job offer when the I-485 has been pending for 180 days.

The rule reiterates that beneficiaries of approved EB-1(A) petitions for classification as an alien of extraordinary ability and EB-2 petitions for National Interest Waiver are exempt from the job offer requirement, and do not need to file Supplement J when changing employers upon or after an I-485 filing.


Updates to definition of H-1B cap-exempt organizations:

The Final Rule clarifies that a U.S. nonprofit petitioner seeking exemption from the H-1B cap based on affiliation with an institution of higher education may now establish this exemption in one of four ways; it keeps the three existing criteria, and adds a fourth.

The new regulation at 8 CFR §214.2(h)(8)(ii)(F)(2)(iv) specifies that the “Affiliated” type of cap-exemption applies to any nonprofit entity- 1) that is connected or associated with an institution of higher education through shared ownership or control by the same board or federation; 2) that is operated by an institution of higher education;  3) that is attached to an institution of higher education as a member, branch, cooperative or subsidiary; or 4) that has a formal, written affiliation agreement which “establishes an active working relationship between the nonprofit entity and the institution of higher education for the purpose of research or education, and a fundamental activity of the nonprofit entity is to directly contribute to the research or education mission of the institution of higher education.”  The Final Rule clarifies that a petitioner need only meet one of these four criteria to qualify for H-1B cap exemption and exemption from the ACWIA fee.

For purposes of evaluating nonprofit entity affiliations with institutions of higher education, this Final Rule expands the qualifying relationships to include those based on written agreements serving a shared goal central to a fundamental activity of the institution. If a written affiliation agreement serves as the basis for the claimed H-1B cap exemption, the non-profit entity need not show that it is also under shared organizational control. So, for example, a non-profit entity that has a written affiliation agreement with a university to provide housing for its students, or offers student internship or teacher training placements in a work setting for academic credit, or provides laboratory space for research activities, will be deemed to meet the definition of “affiliated.” The USCIS policy memoranda of June 6, 2006 and April 28, 2011 are rescinded, as a petitioning non-profit H-1B petitioner need not have been previously accorded H-1B cap exemption.

The definition of “governmental research organization” at 8 CFR §214.2 (h)(19)(iii)(C) has expanded to include federal, state and local governmental entities whose primary mission is the performance or promotion of basic or applied research. Such governmental research organizations are exempt from both the H-1B cap & the ACWIA fee.

The Final Rule also updates 8 CFR §214.2(h)(8)(ii)(F)(4), the H-1B cap-exemption provisions for a worker whose petitioning employer is not itself an exempt institution, but where 1) the majority of the worker’s duties will be performed at a qualifying institution, and 2) those duties directly & predominately further the essential purpose, mission or objectives or functions of the qualifying entity.


H-1B whistleblower protections:

The Final Rule allows H-1B workers who aid or participate in investigations of LCA violations by an employer to provide evidence showing that their failure to maintain valid H1B status as a result of aiding in investigation was due to extraordinary circumstances, i.e. retaliation by an employer.


H-1B Duties without licensure:

The Final Rule specifies at new 8 CFR §214.2(h)(4)(v)(C)(2)(ii) that an H-1B petition may be approved for up to one year if a state or local license to practice the occupation is normally required, and the licensing authority will not grant such a license solely due to the beneficiary’s lack of a social security number, employment authorization, or similar technical requirement. Unlicensed H-1B workers approved for a one-year validity period under this rule may not be approved for an extension of stay in same position without proof of licensure.

It also adds specific documentary requirements for unlicensed H-1B workers in a licensed occupation who will work under the direct supervision of a licensed professional: at 8 CFR 214.2(h)(4)(v)(C)(1), it says the petitioner must provide evidence of the identity, physical work location and credentials of the individual(s) who will supervise the H-1B worker, and evidence that the petitioner is complying with state requirements.


When an approved I-140 petition remains valid for H-1B extensions, H-1B portability and adjustment of status portability, and retention of priority date under 8 CFR §204.5(e)(2)(iv):

An employment-based priority date is established by filing of an application for labor certification (PERM), or, in immigrant visa categories that require no underlying labor application, by the filing of the I-140 petition itself, per revised 8 CFR §204.5(d).

Once established, an employment-based priority date in the EB-1, Eb-2 or EB-3 category may be retained under 8 CFR §204.5(e)(2)(iv), and the approved petition remains valid and may be used in support of I-140 portability for adjustment of status under INA §204(j), post-6th-year H1B extensions of stay by the same or a different employer, and the new compelling circumstances EAD application.

An approved immigrant visa petition remains valid unless revoked for fraud, willful misrepresentation of a material fact, invalidation or revocation of the labor certification, or material error on the part of USCIS.

Substitution of beneficiaries is not permitted.

The automatic revocation provisions at 8 CFR §205.1(a)(3)(iii)(C) & (D) have been amended to prohibit revocation of an approved I-140 based on withdrawal by the petitioner or termination/failure of petitioner’s business more than 180 days after petition approval, or after an application for adjustment of status has been filed on the basis of the approved petition. Approved I-140 petitions remain valid for adjustment portability, H-1B extension and compelling circumstances EADs.


For one year H-1B status extensions beyond the 6-year limit, under AC21 §106(a), an H-1B nonimmigrant is entitled to such extension of stay if 365 days have passed since the filing of a labor certification, or since the filing of an employment-based immigrant visa petition. This Final Rule clarifies that the 365 days must have passed as of the date when the extension of stay would take effect, not at the time of filing.

Such petitions for one-year extension of stay may be filed within 6 months of the requested start date. Requests for remaining H-1B time toward the 6 year limit, including recapture of time spent abroad, may be filed at the same time as the one-year extension. One-year extensions are available until the labor certification expires, or while the labor certification remains pending, while the immigrant visa petition remains pending, or after I-140 approval while the application to adjust status based on that approved I-140 remains pending. The Final Rule clarifies that the H-1B petitioner seeking such 1-year extension need not be the same employer as the one that sponsored the labor certification or I-140 petition.

For purposes of three-year extensions of H-1B status beyond the 6th year limit due to per-country or worldwide quota limitations, under AC21 §104(c), the Final Rule clarifies that an immigrant visa quota backlog in the immigrant visa category relevant to the beneficiary must exist as of the filing date of the 3-year H-1B extension, but need not still exist at the time of adjudication. The beneficiary need not currently be in H-1B status to qualify for this extension, and again, the H-1B petitioner need not be the same employer that sponsored the labor certification or I-140 petition.

Both the 1-year and 3-year H-1B extensions beyond the 6-year limit are available only to the principal H-1B beneficiary: this benefit does not carry over to spouses who are derivative beneficiaries of the I-140 petition.


Grace periods:

The Final Rule formalizes 10-day grace periods at both the start and end of authorized periods of stay for nonimmigrants in E-1, E-2, E-3, H-1B, H-1B1, L-1, and TN visa classifications, per amendments to 8 CFR §214.1(1), and at 8 CFR §214.1(2), adds a grace period of up to 60 consecutive days for those nonimmigrants in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN status whose employment with the sponsor has been terminated prior to the end of the authorized validity period.


Automatic extension of EAD validity based on USCIS receipt of a timely-filed application for extension:

The Final Rule makes a number of significant changes to Employment Authorization Document benefits. It eliminates the mandatory 90-day processing time frame, and with it the authority for USCIS to issue “interim” EADs when a case remains pending 90 days after filing. In practice, adjudication of I-765 applications currently takes upwards of 5 months, so the Agency has given itself permission for existing delays. The rule introduces a protective measure, at new 8 CFR §274a.13(d), to help bridge the gaps, namely automatic extension of EAD validity for 180 days for those renewal applicants who remain work-authorized incident to status, i.e. whose renewal of EAD does not depend upon approval of another underlying benefit application, petition or request. This part of the rule covers 15 types of EAD renewal applicants, namely:

  1. Aliens admitted as refugees;
  2. Aliens granted asylum;
  3. Aliens admitted as parents or dependent children of aliens granted residence under INA 101(a)(27)(I);
  4. Aliens admitted to the US as citizens of Federated States of Micronesia, the Marshall Islands, or Palau;
  5. Aliens granted withholding of deportation or removal;
  6. Aliens who have been granted TPS;
  7. Aliens with a properly filed application for TPS, who have been deemed prima facie eligible for TPS & received an EAD as “temporary treatment benefit”;
  8. Aliens who have properly filed applications for asylum or withholding of removal;
  9. Aliens who have filed applications for adjustment of status under INA 245(a);
  10. Aliens who have filed applications for suspension of deportation under INA 244, cancellation of removal under INA 240A, or for special-rule cancellation of removal under IIRAIRA 309(f)(1);
  11. Aliens who have filed applications for creation of record of lawful admission to permanent residence;
  12. Aliens who have properly filed legalization applications under INA 210;
  13. Aliens who have properly filed legalization applications under INA 245A;
  14. Aliens who have filed applications to adjust status under LIFE Act section 1104;
  15. Aliens who are principal beneficiaries or qualified children of approved VAWA self-petitioners.

This list leaves some EAD holders out in the cold, facing lengthy gaps of uncertain duration in their authorization to work, notably work-authorized spouses of nonimmigrant workers, and anyone switching from one type of EAD to another, such as an F-1 student on Optional Practical Training who has married a US citizen and applied for residence, awaiting the new EAD on a different basis, and others whose renewal I-765 application does not fall into one of the above-listed categories.

The Final Rule allows I-765 applications to be filed up to 180 days in advance of expiration, which is now essentially a necessity. Nonimmigrant spouses and others not covered by the automatic-extension rule may call the National Customer Service Center to request priority processing once the EAD application has been pending for 75 days; those who do benefit from the automatic extension rule may inquire at 165 days after filing.

This rule also heralds an era of greater sub-regulatory procedural change, as it notes that USCIS may announce changes through its website, such as specifying which types of EAD applications may be submitted concurrently with an underlying benefit request.


New “compelling circumstances” EAD for some beneficiaries of approved I-140 petitions: 

The jewel in the crown of this vast regulation is an entirely new category of discretionary EAD applications, at new 8 CFR§204.5(p), which may be filed by individuals who meet all four of the following requirements:

a) must be physically present in the United States in E-3, H-1B, H-1B1, L-1 or O-1 status, including any grace period;
b) must be the principal beneficiary of an approved I-140 petition;
c) must establish that an immigrant visa is not currently available, based on priority date, immigrant visa preference category & country of chargeability, per Final Action Date in the Visa Bulletin in effect when the I-765 is filed; and
d) must demonstrate compelling circumstances that justify the exercise of USCIS discretion to issue an independent employment authorization.

The Final Rule also provides several illustrative examples of what would be considered “compelling circumstances,” including serious illness or disability on the part of the worker or a dependent; employer retaliation; substantial harm to the worker; or significant disruption to the employer.

The application must be made on Form I-765 with both filing and biometrics fees.

Those with any felony conviction, or two or more misdemeanor convictions, are ineligible to apply. “Compelling circumstances” EADs will be valid for one year at a time.


This blog post was last edited Dec. 13, 2016.