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Overview of Final Regulation for High-Skilled Workers
Browse: 11228       Date: 01-01-2017     

On November 18, 2016, to improve the ability of U.S. employers to hire and retain high-skilled foreign workers and to increase the ability of those workers to pursue new employment opportunities, the U.S. Department of Homeland Security published a final rule “Retention of EB1, EB2, and EB3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers”. This final rule will become effective on January 17, 2017.

·         H1B-Related Provisions

(1)        Portability and Bridge Petitions

The regulation codifies DHS policies regarding “portability” and “bridge petitions.” In order to qualify for portability, the new H1B petition must have been filed while the worker either is in H1B status or has a timely filed H1B extension petition. Employment authorization continues until the pending H1B petition is adjudicated, as long as each petition in the “bridge” separately meets the requirements for H1B classification and extension of stay.

(2)        Whistleblower Protection

The new provision provides H1B workers with whistleblower protection in cases of employer retaliation based on reporting a violation of the employer’s obligations under the labor condition application (LCA). The DHS may consider a loss of status in these cases caused by the worker’s termination to be an “extraordinary circumstance,” and therefore grant an extension or change of status.

(3)        Occupations that require a license

For employment in occupations that typically require a license, H1B classification may be granted if (1) evidence demonstrates that the foreign national may fully perform the job duties under the supervision of a licensed supervisor, or (2) the failure to obtain a license is due to inability to meet technical requirements, such as the lack of a Social Security number or employment authorization.

(4)        Cap and fee exemption for nonprofits

The DHS clarifies on H-1B cap and fee exemption for nonprofits related to or affiliated with institutions of higher education while expanding “affiliation” to arrangements in which there is a written affiliation agreement and one of the nonprofit’s “fundamental activities” is contributing directly to the institution’s research or education mission. The “governmental research organizations” that qualify for these exemptions now expressly include state and local government research entities, as well as federal entities.

(5)        Maximum H1B Admission Period and Exemptions

The new rule clarifies the DHS policy regarding the recapture of time and exemptions to the six-year limit for H1B classification. The foreign worker can recapture the remaining H1B time for periods spent outside the United States or in nonimmigrant status other than H1B or L-1 any time before the worker using the full six years.

The regulation provides guidance regarding when a foreign worker may be eligible for an extension of H1B status beyond the standard 6-year max based on a pending labor certification or I-140 petition filed at least 365 days prior to the start date requested in the petition. The final rule further clarifies that one may be eligible for this benefit, even if the labor certification or I-140 was not filed at least 365 days before the foreign national exhausted the full 6-years of H1B time available.

·         I-140 Revocation and Priority Date Retention

The final regulation allows the beneficiary of an approved I-140 petition to retain its priority date unless the petition is revoked due to fraud, willful misrepresentation, material error by the U.S. Citizenship and Immigration Services (USCIS), or the invalidation or revocation of the underlying labor certification.

I-140 Remains Valid Following Withdrawal or Business Termination – 180 Day Rule

The final rule also provides that, once 180 days have passed following the approval of an I-140 petition, the USCIS will not revoke the I-140 petition solely based on the petitioner’s withdrawal of the petition or termination of the business. The same holds true in cases where 180 days or more have passed after an associated application for adjustment of status (form I-485) has been filed.

I-140 EAD Rule for “Compelling Circumstances”

In order to qualify for a one-year EAD, the foreign national must (1) be in E-3, H1B, H1B1, O-1, or L-1 status, (2) be the principal beneficiary of an approved I-140, (3) establish that an immigrant visa is not available on the date the application is filed, and (4) demonstrate “compelling circumstances” that justify an independent grant of employment authorization. Family members of foreign nationals who qualify under these provisions may also apply for an EAD.

New regulations do not define “Compelling Circumstances” for EAD Issuance

The new regulations do not define “compelling circumstances,” which will be adjudicated on a case-by-case basis considering the totality of the circumstances. The DHS provided an updated list of some circumstances that could be considered compelling, including serious illness or disability to the worker or a dependent family member, employer retaliation, substantial harm to the applicant, and significant disruption to the employer.

EAD Adjudication and Automatic Extension for up to 180 Days

The DHS will allow most EAD applicants to apply for extensions up to 180 days prior to the EAD expiration date. In addition, EAD applicants in certain categories, such as asylees and those in temporary protected status (TPS), will be granted “automatic extension of expiring EADs … for up to 180 days with respect to individuals who are seeking renewal of their EADs … based on the same employment authorization categories under which they were granted.” This provision does not extend to all classes of foreign nationals who are eligible for EADs, including L-2 spouses and qualifying H-4 spouses.

Job Portability and New Supplement J to Form I-485

The new rules formalize DHS practice requiring a foreign worker who is adjusting status to have a valid offer of employment at the time the I-485 is filed and adjudicated. In order to facilitate adjudication of these applications, the DHS is introducing a new supplement J to I-485 applications that will be used to submit confirmation of a bona fide job offer or request for job portability. The form is intended to standardize the information and evidence that the USCIS will use to either confirm that the job offer described in the I-140 still exists, or, if an applicant has an I-485 that has been pending for at least 180 days, to adjudicate a worker’s portability request for a new position in the same or similar occupational classification.

60-Day Grace Period for Nonimmigrant Worker Following Loss of Employment

The new regulation gives the DHS the ability to grant a grace period for foreign nationals in E-1, E-2, E-3, H1B, H1B1, L-1, O-1, or TN classification for “… up to 60 consecutive days, or until the existing validity period ends, whichever is shorter, whenever employment ends for these individuals.” To qualify, the nonimmigrant must have a valid petition and I-94 card. During the 60-day period, the foreign national would not be authorized to work, but could potentially apply for a change of employer or change of status. This 60-day grace period will only be available to a qualifying foreign national once per authorized validity period of an approved petition.

10-Day Grace Period Added for Certain Nonimmigrant Workers

The DHS is also expanding eligibility for a 10-day grace period before and after the petition validity period to the E-1, E-2, E-3, L-1, and TN classifications. These grace periods were already available to foreign nationals classified as H1B, O, and P.


The new rule is expansive and includes multiple provisions that affect businesses and their employees. Law Office of Jessie Ho is available to answer inquiries about these new regulations.




Source: DHS