Siskind Summary: The I-140/AC-21/EAD Proposed Regulation
The Department of Homeland Security and US Citizenship and Immigration Services have published a long-awaited regulation covering employment-based green card processing, non-immigrant work visas and employment authorization documents (EADs). At 181 pages, the regulation is a major one affecting a potentially very large portion of the country’s skilled immigrant workers as well as potentially millions of others that might apply for EADs.
I will reserve judgment in this blog post and will, instead be writing a separate opinion piece regarding what USCIS did right and wrong. But I can tell you that this regulation is mostly disappointing. USCIS failed to execute on the President’s November 2014 mandate and actually made things worse in several areas.
In its summary, USCIS notes it is providing the following new benefits:
– improved processes for US employers sponsoring and retaining immigrant and non-immigrant workers
– greater stability and job flexibility for such workers, and
– increased transparency and consistence in the application of agency policy
The goal is to make it easier for US employers to hire and retain workers who are the beneficiaries of employment-based green card petitions and also to increase the ability of workers to seek promotions, accept lateral positions with current employers, change employers, or pursue other employment options.
The proposed rule also makes significant changes to the Employment Authorization Document application process. The 90 day time limit for adjudicating petitioners would be scrapped “in light of national security and fraud concerns.” However, USCIS is sweetening this by providing for the automatic extension of employment authorization for timely filed I-765 renewal applications.
USCIS is providing for a 60 day comment period from the day the proposed regulation is published in the Federal Register (likely December 31st). That would make the deadline for submitting a comment the end of February.
Executive Summary Section
Retention of employment-based immigrant visa petitions – For EB-1, EB-2 and EB-3 applicants with petitions pending 180 days or more, no automatic revocation based solely on withdrawal by the petitioner or termination of petitioner’s business. Not applicable in cases of fraud, material misrepresentation, revocation or invalidation of a labor certification or USCIS error. Beneficiary would still need a new job offer and “may need another immigrant visa petitioner”
Priority Date Retention – Priority date retention will be available so long as the initial immigrant visa petition was approved and the approval has not been revoked for fraud, material misrepresentation, invalidation of a labor certification or USCIS error.
Nonimmigrant grace periods – There will be a new one-time grace period, during an authorized validity period, of up to 60 days whenever employment ends for E-1, E-2, E-3, H-1B, H-1B1, L-1, or TN nonimmigrants. No working during the grace period. Also, DHS “in its discretion may eliminate or shorten the 60-day grace period on a case-by-case basis.”
Eligibility for employment authorization in compelling circumstances – DHS proposes to allow E-3, H-1B, H-1B1, L-1, or O-1 NIVs to apply for separate employment authorization for a limited period if there are compelling circumstances that, in the discretionary determination of DHS, justify the consideration of such employment authorization.
H-1B licensing – For occupations requiring a license, H-1B application requirements satisfied if a license application is filed, but not obtained because a state or locality requires a social security number of the issuance of employment authorization before accepting or approving much requests. Also deemed satisfied if the unlicensed worker will be working in a state that allows such individuals to work under the supervision of a licensed senior or supervisory personnel.
EAD extensions – Automatic 180 day extension of employment authorization so long as 1) a renewal I-765 application is filed based same category as previously issued EAD (except if it’s a TPS recipient); 2) the renewal is filed before the current EAD has expired; and 3) the person’s eligibility for employment authorization continues beyond the expiration of the EAD and an independent adjudication of the individual’s underlying eligibility is not a prerequisite to the extension of the EAD (note: assuming this would be in situations where an underlying I-130 or I-140 have not been approved yet). The long-standing 90 day time limit regulation for adjudicating EADs would be eliminated.
USCIS cites the following INA and other statutory language to back up the proposed changes:
– INA Section 205 for authority to determine how and whether to revoke immigrant visa petitions
– INA Section 214(a)(1) authorizing DHS to prescribe rules for the terms and conditions of nonimmigrants
– INA Section 274A(h)(3)(B) authorizing DHS to extend employment authorization to noncitizen of the US
– INA Section 212(n)(2)(C) on whistleblower protections
– INA Section 214(c)(9) authorizing DHS to impose training/education fees on H-1B petitioner
– AC21 Section 103 H-1B cap exemption statute
– AC21 Section 104(c) H-1B six year extension statute for per country backlogged green card applicants
– AC21 Section 105 H-1B portability statute
– AC21 Section 106(a) and (b) H-1B six year extension for 1+ year green card applicants
– AC21 Section 106(c) – green card portability
– Section 101(b)(1)(F) of the HSA stating DHS mission is to “ensure the overall economic security of the United States is not diminished by efforts, activities and programs aimed at security the homeland.”
Proposed Regulatory Changes
Implementation of AC21 and ACWIA – After 15 years, USCIS is proposing rules relating to these two important statutes.
1. Extending H-1B NIV status for people being sponsored for green cards
a. Extensions for people affected by per-country limitations (AC21 104(c)
– extensions will continue to be granted in increments up to three years; extensions will be granted in three year increments
– beneficiaries need not be currently in the US in H-1B status when the H-1B is filed to benefit fro this provision.
– H-1B employer need not be the same employer as listed in the qualifying immigrant visa petition
– H-1B worker can use this provision more than once with different employers and combined with new I-140 non-revocation language, USCIS believes it will make workers more mobile.
– The AC21 104(c) benefit does not extend to spouses and children in H-1B status, but H-4 extensions permitted under the exemption. Thus, each spouse in H-1B status would need separate green card applications to get a 104(c) extension or the spouse without a green card application will need to change to H-4 status. Editor’s note: USCIS still has not addressed the problem of an H-1B to H-4 applicant maintain work authorization during the switch.
b. Extensions for people with lengthy adjudication delays (AC21 106(a) and (b).
– extensions for one year increments will be available to beneficiaries not currently in the US at the time the H-1B petition is filed.
– extensions permitted even if the H-1B petitioner is not the employer that filed the labor certification or I-140 that is the basis for the extension.
– employer must demonstrate that the beneficiary has previously held H-1B status and that 365 days have elapsed or will have elapsed between the filing of a labor certification or an employment-based immigrant visa petition and the end of the 60year limitation on H-1B admission.
– one year extensions permitted until either the labor certification expires (180 days after the labor certification approval is the I-140 hasn’t been filed under the 2007 DOL rule) or a final decision is made to 1) deny the labor certification, 2) revoke or invalidate the labor certification, 3) deny the immigrant visa petition, 4) revoke approval of the visa petition, 5) grant or deny the application for adjustment of status or for an immigrant visa, or 6) administratively close one of these applications. Denials or revocations are not considered final during the period in which one is eligible to file an appeal or during the actual period an appeal is pending.
– AC21 106(a) and (b) extensions may be filed up to 180 days before the requested H-1B start date. The request can include time left in the 6-year period (including recapture time) plus one year but the approval granted will not exceed three years.
– USCIS is changing its regulations to conform to 2007 DOL regulation regarding substitution of labor certification beneficiaries and will only allow I-140s to be filed based on substitution if the request was filed before July 16, 2007.
– Each approval under 106(a) and (b) will provide the beneficiary a new date upon which the limitation on H-1B admission will be reached. Only one petition may be used to support an extension and multiple petitions cannot be aggregated.
– The AC21 106(a) and (b) benefit does not extend to spouses and children in H-1B status, but H-4 extensions permitted under the exemption. Thus, each spouse in H-1B status would need separate green card applications to get a 106(a) and (b) extension or the spouse without a green card application will need to change to H-4 status. Editor’s note: USCIS still has not addressed the problem of an H-1B to H-4 applicant maintain work authorization during the switch.
Beneficiaries of AC21 106(a) and (b) must file an adjustment of status or immigrant visa application within one year of a visa becoming immediately available. The period is tolled, however, during any period in which priority dates unavailable and a person is not eligible to file and the one year clock will reset if priority dates retrogress. Also, failing to file within a year may be excused by DHS if the failure to apply was due to circumstances beyond the beneficiary’s control.
2. Job portability under AC21 for certain applicants for adjustment of status
INA Section 204(j) provides that EB-1, EB-2 and EB-3 petitions will remain valid with respect to a new qualifying job offer when the worker changes jobs or employers if an application for adjustment has been filed and remains pending for 180 days or more. The new job needs to be in the same or a similar occupational classification as the job that was the subject of the original visa petition.
– USCIS proposes that the EB-1, EB-2 or EB-3 petition will remain valid if the petition is approved and either
1. the employment offer from the petitioning employer is continuing and remains bona fide; or
2. pursuant to section 204(j), the beneficiary has a new offer of employment in the same or a similar occupation, the application for adjustment of status based on this petition has been pending 180 days or more and the approval of the petition has not been revoked.
Under #2, the new offer can be for a different position with the original employer sponsor, a new US employer or based on self-employment. Under either option, the individual and the employer must intend that the individual will be employed under the continuing g or new employment offer (including self-employment) upon the individual’s grant of a green card.
– While a beneficiary need not have been employed at any time by the employer that filed the I-140 or the employer presenting a new offer of employment under 204(j), DHS must determine in all cases that the relevant offer was bona fide. In 204(j) cases, DHS must still determine that the original sponsoring employer intended to employ the beneficiary upon approval of the application for adjustment of status. For new employers, DHS must determine that the employer intends to employ the beneficiary in the offered position and the beneficiary intends to work in that position, upon approval of the adjustment of status.
– DHS is proposing to amend its rules to prohibit approval of an application when the immigrant visa petition on which it is based has been revoked. However, revocations will become much less frequent since automatic revocations will no longer happen when I-140s have been approved for 180 days and an employer seeks revocation or an employer goes out of business (except in cases of fraud, material misrepresentation, invalidation or revocation of a labor certification or USCIS error). That petition on its own won’t serve as the basis for obtaining an immigrant visa or filing an adjustment of status since there is no longer a bona fide employment offer related to the petition. A new I-140 approval would be needed. Current rules don’t require a new petition when an employer withdraws an I-140 after an adjustment of status application is filed if the beneficiary qualifies for adjustment portability. That will be expanded under the new rule to include cases where the initial petitioning employer goes out of business.
– The I-485 form is going to get a new supplement that will assist DHS in confirming that a job offer described in an employment-based immigrant visa petition is still available at the time an individual files an adjustment application. That same form will be submitted affirmatively by an applicant when requesting adjustment portability. No fee is being considered at this point.
– To qualify for 204(j), applicants will submit the new supplemental form plus 1) a written attestation signed by the applicant and employer describing the new position and its requirements, 2) an explanation demonstrating the new offer is the same or similar as the original one and 3) a copy of the I-485 receipt showing the application has been pending for 180 days or more.
– “Same or similar” proposed memorandum language from earlier this month incorporated. “Same occupational classification” is one that “resembles in every relevant respect” the occupation for which the underlying employment-based immigrant visa petition was approved. “Similar occupational classification” is one that shares “essential qualities or has a marked resemblance or likeness with the occupation for which the underlying employment-based immigrant visa petition was approved.
3. Job portability for H-1B nonimmigrant workers (AC21 Section 105)
– Statute authorizes H-1B beneficiaries to accept new or concurrent employment upon the filing of a non-frivolous H-1B petition as long as the worker has been lawfully admitted into the US, has not worked without authorization subsequent to that admission and is in a period of authorized stay. Employment authorization continues until the petition is adjudicated.
– DHS proposes making portability available only to H-1B beneficiaries currently in the US in H-1B status.
– in “bridge petitions” where a third or later employer files an H-1B petition on behalf of a worker, a subsequent portability petition is dependent on the approval of an extension of stay in the preceding case(s).
– the I-9 rules are to be changed to recognize H-1B portability situations and add them to the class of workers authorized for employment incident to status.
4. Calculating the H-1B admission period
– DHS is adding to the regulation its long-standing policy that time spent outside the US does not count against the six year validity period for H-1B employment. Beneficiaries seeking to recapture time must establish through objective documentary evidence – such as passport stamps, I-94s and airline ticket stubs – that the H-1B worker was outside the US. Applicants may also submit charts and other complementary evidence. If an H-1B nonimmigrant worker counted against the H-1B cap seeks recapture of time, seeking recapture doesn’t re-subject the worker to the H-1B cap. If the H-1B had not counted against the H-1B cap, the recapture petition would be cap-subject unless the new employment is also exempt from the cap. The burden of proof in recapture cases is on the H-1B petitioner. The current policy regarding giving workers outside for more than a year the option of choosing to either recapture time and continue being counted against the cap or re-subjecting to the cap and getting six new years of time continues.
– An H-1B petitioner need not demonstrate that time spent outside the US failed to interrupt the H-1B period for which recapture is sought unless it is relevant to a determination of the employee’s admissibility.
– Any trip of at least one 24-hour day may be recaptured.
5. Exemptions from the H-1B cap under AC21 and ACWIA
a. Employers not subject to the H-1B numerical limitations
– AC21 exempts from the cap those workers employed (1) “at an institution of higher education…, or a related or affiliated nonprofit entity,” or (2) “at a nonprofit research organization or a governmental research organization.”
– exemption applies to workers employer directly by such en employer and to workers employed “at” such qualifying institutions even if they are not directly employed by them.
– under current policy, employed “at” works when the worker is located physically at a qualified entity and the workers is performing job duties that “directly and predominantly” further the normal, primary, or essential purpose, mission, objectives or function of the qualifying institution, organization, or entity.”
– under the proposed rule, employed at works if 1) the majority of the worker’s duties will be performed at the qualifying institution, organization or entity and 2) such job duties directly and predominantly further the essential purpose, mission objectives or functions of the qualifying institution, organization or entity. USCIS gives examples of higher education or nonprofit or governmental research). The petitioner must establish this eligibility based on a preponderance of the evidence showing a nexus between the work performed and the purpose, mission or objectives of the exempt entity.
– The fee exemption definitions of “institution of higher education” will now apply to cap exemption. That would eliminate for-profit colleges from claiming cap exemption. The fee exemption definitions of “nonprofit research organization” and “government research organization” are also going to apply to cap exemption.
– “related or affiliated nonprofit entity” is being defined both for ACWIA and cap exemption purposes. It includes nonprofit entities that are
– connected or associated with an institution of higher education through shared ownership or control by the same board or federation;
– operated by an institution of higher education; or
– attached to an institution of higher education as a member, branch, cooperative or subsidiary
– DHS will expand the definition of “affiliated or related nonprofit entities” to include nonprofit entities that have entered into formal written affiliation agreements with institutions of higher education education and are able to establish 1) an active working relationship with the institution of higher education for the purposes of research or education and 2) one of their primary purposes is to directly contribute to the research or education mission of the higher education.
– DHS offers the example of VA hospitals affiliated with a medical school based on a contract or agreement for the training or education of health personnel.
b. Counting previously exempt H-1B nonimmigrant workers
– under current policy, people working at cap exempt institutions of higher education and related or affiliated nonprofit entities who change to cap subject employers are subject to the cap at the time of the transfer. That rule is being extended to nonprofit research organizations and governmental research organization. USCIS may also revoke the petition for concurrent employment of an H-1B worker at a cap subject employer when the worker is no longer employed by a cap exempt petitioner. Under existing policy, such employment could continue until the point when an extension of the cap exempt petition was needed.
6. Whistleblower protections in the H-1B program
ACWIA included provisions barring H-1B employers from retaliating against employees for providing information to the employer or any other person, or for cooperating in an investigation of the employer’s violation of its LCA attestations. The proposed rule codifies in regulation the current policy of considering whistleblowing an “extraordinary circumstance” that would justify a late filing of a new H-1B petition filed by a new employer. Evidence of the whistleblowing should be provided in the new petition including a copy of the complaint filed by the worker and evidence that retaliatory action has been taken.
B. Additional changes to further improve stability and job flexibility for certain workers.
1. Revocation of approved employment-based immigrant visa petitions
– current rules provide for automatic revocation of I-140s when a labor certification is invalidated, the petitioner or beneficiary dies, a petitioning employer withdraws the petition and the petitioning employer’s business closes.
– the proposed rule amends the regulations so that EB-1, EB-2 and EB-3 immigrant visa petitions that have been approved for 180 days or more would no longer be automatically revoked based only on withdrawal by the petitioner or termination of the petitioner’s business. Exceptions are made for revocation based on fraud, material misrepresentation, invalidation or revocation of a labor certification or USCIS error.
– the rule will affect the retention of priority dates, job portability under section 204(j) of the INA and extension of status for H-1B workers. “An employment-based immigrant visa petition that is subject to withdrawal or business termination, however, cannot on its own serve as the basis for obtaining an immigrant visa or applying for adjustment of status as there is no longer a bona fide employment offer related to the petition.” So a new I-140 would be needed or, in a 204(j) case (which requires an adjustment application to already be filed), a new offer of employment
– the proposed rule would continue to require a valid and qualifying offer of employment (unless the requirement for such an offer is exempted by law) at the time a worker seeks to apply for or receive adjustment of status.
– for adjustment portability, the main thing changing is employers going out of business won’t be a basis for denying adjustment of status. Employers revoking I-140s was already not an issue in adjustment portability cases.
2. Retention of priority dates
– Current rules don’t specify how priority dates are determined in petitions not requiring a labor certification (such as EB-1 and EB-5). The proposed rule clarifies that the priority date will be the date the completed, signed petition is properly filed with DHS.
– current rules allow retention of priority dates for use with subsequently filed EB-1, EB-2 and EB-3 petitions, but not where DHS denies or revokes an approval under Section 204(e) or 205 of the INA. The rules will be changed to allow retention in all cases except where revocation happens due to 1) fraud or a willful misrepresentation of a material fact, 2) a determination that the petition was approved in error, or 3) revocation or invalidation of the labor certification associated with the petition. The ability to retain priority dates would begin immediately upon petition approval even if the petition is revoked based on petition withdrawal or business termination less than 180 day after approval.
3. Nonimmigrant grace periods
– The ten day grace period before and after the relevant validity period in H-1B cases is to be extended to E-1, E-2, E-3, L-1 and TN classifications).
– A grace period of up to 60 days during the period of petition validity is also being provided
a. Extending 10-Day grace periods to certain nonimmigrant classifications
– during the 10 day grace period at the beginning and end of the H-1B period, a worker is “admitted” but not authorized to work. This grace period is being extended to the other classifications noted above.
b. Providing a 60-Day grace period to certain nonimmigrant classifications
– For E-1, E-2, E-3, H-1B, H-1B1, L-1 and TN classifications, DHS is proposing a one-time grace period of up to 60 days or until the existing validity period ends, whichever is shorter, whenever employment ends for these individuals. This will allow nonimmigrants sufficient time to respond to a sudden or unexpected change related to their employment. Such time may be used to seek new employment, seek a change of status to a different visa category or depart the US.
– employers in the grace period would be maintaining status for purposes of filing for a change of status. But employment authorization is not granted during the grace period so H-1B portability employment authorization doesn’t apply and a new petition would need to be approved before employment could begin with a new employer.
– dependents of eligible principle nonimmigrant workers also benefit from the grace periods
– 60 day period may be shortened or eliminated as a matter of discretion
4. Eligibility for employment authorization in compelling circumstances
– examples are given of people facing medical or other emergencies, workers facing retaliation from an employer for engaging in protected conduct (i.e. whistleblowing) or facing significant business or economic harm to the employer or worker.
– individuals would be eligible for one year of employment authorization when they meet the following criteria:
1) the individual is currently in the US and maintaining E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status;
2) the individual is the beneficiary of an approved immigrant visa petition under the EB-1, EB-2 or EB-3 classification;
3) the individual does not have an immigrant visa immediately available; and
4) the individual can demonstrate to the satisfaction of DHS compelling circumstances that justify an independent grant of employment authorization.
Why the restrictions?
1 – DHS believes the other changes would significantly decrease when the rule is needed
2 – NIV workers will have significant incentive to choose other options since this would cause the person to relinquish non-immigrant status, thus restricting his or her ability to change nonimmigrant status or adjust status to that of a lawful permanent resident (e.g. consular processing would be needed)
3 – DHS anticipates that employment authorization based on compelling circumstances will not be available to a nonimmigrant worker solely because his or her statutory maximum time period for NIV status has been reached or if the tendered compelling circumstance with within his or her control.
“Compelling circumstances” not being defined in order to retain flexibility, but four circumstances are given for qualification:
– Serious illnesses and disabilities – a serious illness or disability entails the worker moving to a different geographic area for treatment or otherwise substantially changing his or her economic circumstances
– Employer retaliation – the worker is involved in a dispute regarding the employer’s illegal or dishonest satiety as evidenced by a complaint filed with a government agency or court and the employer has taken retaliatory actions
– other substantial harm to the applicant – The worker can show he or she will be unable to timely extend or otherwise maintain status, or obtain another nonimmigrant status, and absent continued employment authorization, the applicant and his or her family would suffer substantial harm; For example, an H-1B who has industry-specific skill set in a high-tech sector for years with a US entity terminates its business and the same or similar industry doesn’t exist in the worker’s home country and the inability to find a job would cause significant hardship.
– significant disruption to the employer – the worker can show that he or she is unexpectedly unable to timely extend or change status, there are no other possible avenues for the immediate employment of such workers with that employer and the worker’s departure would cause the employer substantial disruption to a project for which the worker is critical. Examples include
6. an L-1B nonimmigrant sponsored for permanent residence and the employer goes through corporate restructuring such that the worker no longer qualifies as an intracompany transfer
7. an H-1B employer loses cap exemption status and the worker is part of a critical project
The stated goal is to give someone interim relief while a new NIV status is sought.
– Extending past one year – The worker must continue to face compelling circumstances or the worker has a priority date that is less than one year from the cut-off date for the relevant employment-based category and country of nationality in the most recent visa bulletin published by DOS
– No one is eligible for initial or extension EAD if at the time of filing the EAD, the person’s priority date is more than one year beyond the date on which immigrant visa numbers were authorized for the principal applicants preference category and country of changeability according to the latest Visa Bulletin. [NOTE: This appears to conflict with extension language]
– applicants must appear in person and get biometrics and are ineligible if they have been convicted of a felony or two or more misdemeanors.
– spouses and children eligible if the principal spouse or parent is granted an EAD. the dependent’s EAD will not have a validity period longer than the principal applicant. Extension rule above applies to dependents as well.
– DHS seeking comments on appropriate validity fr grants of employment authorization and the nonimmigrant categories eligible for employment authorization.
5. H-1B Licensing Requirements
– Statute says that if H-1B beneficiary requires a state or local license to fully perform duties, the petition may not be approved unless the beneficiary possesses the license. But some states won’t issue license without an H-1B isa or a social security number (which requires prior approval of the H-1B visa). DHS currently approves for a year if the license application was filed at the time of filing the H-1B petition and the only obstacle to getting a license is the lack of a social security number of employment authorization.
– this policy is being formalized in the regulations; one year approval period being retained and no extensions permitted unless license in hand at that point.
– no license needed for H-1B issuance if the job is in a state that allows an unlicensed individual to fully practice the occupation under the supervision of licensed senior or supervisory personnel. An examiner must still look at the nature of the proposed duties to ensure they are at a high enough level to meet the definition of a speciality occupation.
C. Processing of applications for Employment Authorization Documents
– EADs to be automatically extended up to 180 days if new I-765s filed before card expires, application in same green card category (unless it’s a TPS-based application) and the person continues to be employment-authorized incident to status beyond the EAD expiration date or are applying under a category that does not first require adjudication of an underlying application, petition, or request.
– the following categories are eligible for the 180 day extension:
• refugees (a)(3)
• asylees (a)(5)
• parents or dependent children of people who got permanent residency under INA 101(a)(27)(I) (a)(7)
• Citizens of Micronesia or the Marshall Islands (a)(8)
• people granted withholding of deportation or removal (a)(10)
• TPS (a)(12) and (c)(19)
• People with pending asylum or withholding of deportation or removal (c)(8)
• Pending adjustment of status applicants (c)(9)
• People with pending suspension of deportation and cancellation of removal (c)(10)
• Applicants for creation of a record of lawful admission for permanent residence (c)(16)
• Legalization applicants (c)(20) and (c)(22)
• LIFE Act adjustment applicants (c)(24)
• VAWA cases (c)(31)
– H-4s and other spouse-based NIV work cards are NOT eligible for the 180 day benefit.
– No explanation of what process is available if card not adjudicated within 180 days.
– for I-9 purposes, a filing receipt will be needed to demonstrate employment authorization under the new 180 day extension provision
– The 90 day time limit to adjudicate EADs in the current regulations is being eliminated “to address national security and fraud concerns.” And interim EADs eliminated because they would no longer be mandated by the 90 day rule.
– DHS says they remain committed to a 90 day timeframe and will set up system to contact USCIS when 90 day mark is near to request prioritized processing.