Introduction

On November 18, 2016, the Department of Homeland Security published a new final rule in the Federal Register (FR) titled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers,” (see 81 FR 82398) [PDF version]. The rule came into effect on January 17, 2017.

In this article, we will provide an overview of the contents of the final rule with links to articles that go into more detail on its contents.

Overview

The final rule — which is 95 pages in the Federal Register — makes several important changes to regulations involving the employment-based preference immigrant visa categories and nonimmigrant work visa categories. Many of these changes are clarifications and policy improvements related to the provisions of the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), Public Law 105-277, div. C, tit. IV, 112 Stat. 2681 [link], as amended by the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), Public Law 106-313, 114 Stat. 1251 [link], as amended by the 21st Century Department of Justice Appropriations Authorization Act, Public Law 107-273, 116 Stat. 1758 (2002) [link]. Please see our website’s full section on AC21 to learn more [see category].

AC21 and the other referenced provisions made important changes to several employment-based immigrant and nonimmigrant visa categories. One of the most significant effects of these changes was the introduction of provisions such as H1B and Form I-140 portability, which offer certain nonimmigrants greater flexibility to remain in the United States. At 81 FR 83400, the DHS states that one purpose of the new rule is to “further clarify and [improve] DHS policies and practices in this area.”

Clarifications and Changes in the Final Rule

From 82 FR 82400-82401, the DHS offers a useful overview of all of the major clarifications to ACWIA and AC21 policies and practices as well as regulatory changes in the final rule. In this section, we will recap this section of the FR notice to provide a broad summary of the rule. Please note that in the next section we will provide links to detailed articles on different components of this final rule.

Clarifications and Modified Policies and Practices

The DHS explains that the final rule “clarifies and improves policies and practices related to”:

H1B extensions of stay under AC21 [see article];
Form I-140 portability [see article];
H1B portability [see article];
Counting against the H1B cap;
H1B cap exemptions [see article]
Protections for H1B whistleblowers; and
Form I-140 petition validity (when a petition remains valid after the petitioner withdraws the petition or the petitioner’s business terminates).

Amended Provisions

The DHS explains that the final rule amends several regulations relating to AC21 and ACWIA in a manner consistent with the language and goals of the statutes to “improve the ability of certain foreign workers, particularly those who are successfully sponsored for LPR status by their employers, to accept new employment opportunities, pursue normal career progression, better establish their lives in the United States, and contribute more fully to the U.S. economy.”

The DHS lists the following provisions that were amended in the final rule:

8 C.F.R. 204.5(e) [PDF version] — Provisions relating to the retention of priority dates. These regulatory changes explain “the circumstances in which workers may retain priority dates and effectively transfer those dates to new and subsequently approved Form I-140 petitions.” The DHS states that the changes will improve “the ability of certain workers to accept portions, change employers, or pursue other employment opportunities without fear of losing their place in line for immigrant visas.”
8 C.F.R. 205.1(a)(3)(iii)(C) and (D) [PDF version] — Provisions relating to the retention of employment-based immigrant visa petitions. The changes to these regulations affect certain workers with approved Form I-140 petitions in the EB1 [see category], EB2 [see category], and EB3 [see category] categories who are unable to procure lawful permanent resident (LPR) status due to immigrant visa backlogs. Specifically, it applies to the beneficiary of an approved Form I-140 petition that has been approved for 180 days or more. The regulation provides that such an individual would no longer be subject to the automatic revocation of the Form I-140 based solely on withdrawal by the petitioner or the termination of the petitioner’s business.
8 C.F.R. 204.5(p) [PDF version] — Eligibility for employment authorization in compelling circumstances. This provision addresses certain nonimmigrant workers who are the beneficiaries of approved Form I-140 petitions but who cannot obtain an immigrant visa due to the statutory limit on the number of immigrant visas that may be issued. The new regulations will allow certain beneficiaries who are in the United States on E3, H1B [see category], H1B1, L1 [see category], and O1 [see article] nonimmigrant status to apply for a separate employment authorization “for a limited period if there are compelling circumstances that, in the discretion of DHS, justify the issuance of employment authorization.”
8 C.F.R. 214.1(l)(1) [PDF version] — 10-day nonimmigrant grace periods. This amended regulation will provide two grace periods of up to 10 days for certain individuals in the E1 [see category], E2 [see category], L1, and TN [see category] nonimmigrant classifications. The DHS explains that the amended regulations will be consistent with already-existing policy. The first 10-day grace period would be available for these nonimmigrants for the 10 days immediately before they would begin their employment. The second 10-day grace period would be after the end of their authorized validity periods, and give the nonimmigrants the opportunity to prepare to depart the United States “or take other actions to extend, change, or otherwise maintain lawful status.”
8 C.F.R. 214.1(l)(2) [PDF version] — 60-day nonimmigrant grace periods. The amendments to this regulation serve to enhance job portability for certain individuals in the E1, E2, E3, H1B, H1B1, L1, O1, and TN nonimmigrant classifications. The new regulations will establish “a grace period of up to 60 consecutive days during each authorized validity period” for such individuals. The purpose of this grace period is to allow nonimmigrants in the specified categories to pursue new employment within the same nonimmigrant classification if their employment ceases before the end of the validity period. The 60-day nonimmigrant grace period is one of the most significant of the new regulations.
8 C.F.R. 214.2(h)(4)(v) [PDF version] — H1B licensing. The DHS explains that this amended regulation will “codify current DHS policy regarding exceptions to the requirement that makes the approval of an H1B petition contingent upon the beneficiary’s licensure where licensure is required to fully perform the duties of the relevant specialty occupation.” In short, this portion of the new final rule does not change current policy, but rather puts the policy into writing in the DHS regulations. The rule will allow, generally, for the temporary approval of an H1B petition filed on behalf of an unlicensed worker if “the petitioner can demonstrate that the worker is unable for certain technical reasons to obtain the required license before obtaining H1B status.” The final rule sets forth the requirements for demonstrating eligibility for this exception.

Amended Provisions Regarding Employment Authorization Application Processing

In the final section of the summary, the DHS provides an overview of its amended regulations regarding the processing of applications for employment authorization. The amended provisions are found in the new final 8 C.F.R. 274a.13(d) [PDF version].

The DHS explains that the new final rule will “automatically [extend] the validity of [EADs or Forms I-766] in certain circumstances based on the timely filing of EAD renewal applications. Under certain circumstances, the new final rule will automatically extend the employment authorization and the validity of existing EADs issued to certain employment-eligible individuals for up to 180 days from the date of the expiration of the existing EAD. The circumstances in which the regulations allow for such an extension are if the renewal application is based on the same employment authorization category as the existing EAD (or if it is for an individual with a Temporary Protected Status (TPS)-related EAD that was issued under 8 C.F.R. 274a.12(c)(19) [PDF version] [see category]); if the renewal application is filed timely before the expiration of the previously issued EAD; and the applicant’s “eligibility for employment authorization continues beyond the expiration of the EAD and an independent adjudication of the underlying eligibility is not a prerequisite to the extension of employment authorization.

Additionally, the DHS eliminated its regulatory requirements that required the Form I-765, Application for Employment Authorization, to be adjudicated within 90 days of filing and for the allocation of interim EADs in cases where Forms I-765 were not adjudicated within that timeframe.

Amended Provisions Regarding HRIFA Adjustment of Status

The DHS also made minor amendments to regulations governing adjustment of status applications filed under the Haitian Refugee Immigrant Fairness Act of 1998 (HRIFA), Public Law 105-2777, div. A, title X, sections 901-904, 112 Stat. 2681-538-542 (codified at 8 U.S.C. 1255, section 245 of the INA) [link]. The amendment affects 8 C.F.R. 245.15(n)(2). The amended regulation will require the DHS to issue an EAD, rather than an interim EAD, “within the timeframes currently provided in 8 C.F.R. 245.15(n)(2). Furthermore, the DHS explains that HRIFA-based adjustment of status applicants will be eligible for the automatic 180-day extension of expiring EADs under the new 8 C.F.R. 205.1(a)(3)(iii)(C) and (D), provided that the request for renewal was filed timely.

Conclusion: Selection of Articles on the Regulations

This article serves to provide an overview of the new final rule and its many amendments and policy changes. To examine these changes in greater detail, we have several articles addressing them topically. The following is a list of articles about the provisions discussed in the previous section:

I-140 Petition Portability [see article];
H1B Portability [see article];
H1B Cao-Exempt Employment [see article];
10 and 60-Day Nonimmigrant Grace Periods for Certain Nonimmigrants [see article];
Automatic 180-Day Extension of EADs In Certain Categories Upon Timely Filed Renewal Application [see article];
Employment Authorization in Compelling Circumstances [see article];
New Rules for Establishing Priority Dates, Retaining Priority Dates, and Revocation of Form I-140 [see article]; and
New Regulations for H1B Petitioners Where Beneficiary Lacks Requisite License [see article].

To learn more about specific issues addressed in this very important new final rule, please see our full articles. It will be important for employers and beneficiaries alike to understand the new final rule because it touches on a wide range of issues and nonimmigrant and immigrant employment-based visa categories. To learn about other issues affecting many of the categories that we have discussed, please see our websites sections on Employment Immigration [see category], Investment Immigration [see category], and Work Visas [see category]. To see all of our articles about issues involved with the provisions of AC21, please see the full section on our site [see category].