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“Chart Summarizing New H-1B Regulation Proposed by DHS!”

By Peter F. Asaad

On December 31st, the Department of Homeland Security (DHS) published a proposed rule in the Federal Register to make several changes and clarifications impacting the H-1B visa classification and certain benefits under the employment-based application process.  The proposed rule is entitled, “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers.”

Highlights include: a 60 day grace period to change employers, a supplemental form that can be filed with USCIS to establish and confirm eligibility under same or similar I-140 portability rules, and priority date retention regardless of whether the employer withdraws the I-140 employment-based immigrant visa petition.

Below is a chart providing a summary of those and other changes and clarifications proposed by the rule.  Keep in mind that this is a proposed rule is subject to a 60 day public comment period.  The final rule that will be published by DHS may ultimately be different in some respect.

Benefits when I-140 Pending 180 Days After 180 days, an approved I-140 employment-based immigrant visa petition may continue to remain valid despite withdrawal by the employer or termination of the employer’s business.  The worker can continue to use that petition for: (1) AC21 extensions beyond the 6 year with any employer, (2) to permit the H-4 spouse to continue to extend his or her EAD, and (3) to retain his or her priority date.  However, to ultimately obtain status as a legal permanent resident, the beneficiary must obtain a new job offer and may need another PERM and I-140 immigrant visa petition approved on his or her behalf.  Prior to 180 days, an approved I-140 employment-based immigrant visa petition is automatically revoked upon withdrawal by the employer or termination of the employer’s business.
Priority Date Protection Against Withdrawal The beneficiary of an approved I-140 may keep his or her priority date even if the I-140 is withdrawn by the employer unless USCIS revokes the petition for error, fraud or willful misrepresentation of a material fact, or upon revocation or invalidation of the labor certification accompanying the petition.  This is true even if the I-140 petition has been pending less than 180 days.  This provides assurance of the ability to transfer a priority date to new and subsequently approved I-140 employment-based immigrant visa petitions.  However, if 180 days have not passed, the regulation would not allow an extension of the H-1B based upon the withdrawn I-140.
Supplemental Same or Similar Portability Eligibility Form A new supplement J to Form I-485 to allow an individual to demonstrate eligibility to help resolve beneficiary’s uncertainty at any given time as to same or similar occupation eligibility.  It is significant that an individual may submit the supplement affirmatively when needing certainty or when required at the request of USCIS to establish and confirm eligibility that the occupation will be considered same or similar for portability purposes.
I-140 EADs Based on Compelling Circumstances Proposes provisions allowing certain nonimmigrant principal beneficiaries, and their dependent spouses and children, to apply for unrestricted employment authorization (EAD) if the principal beneficiary has an approved EB-1, EB-2, or EB-3 immigrant visa petition while waiting for his/her immigrant visa to become available. Applicants must demonstrate compelling circumstances justifying an independent grant of employment authorization.  Examples of compelling circumstances include serious illnesses and disabilities, employer retaliation, significant disruption to employer, and other instances of substantial harm.  The initial extension needs to be applied for prior to non-immigrant status expiration.  However, applicant’s spouse and children could get EAD renewal even if they are out of status at the time of renewal.
Automatic Extension of EADs for up to 180 days Eliminates regulatory requirement for 90-day adjudication timeframe and issuance of interim-EADs. Proposes an automatic extension of EADs for up to 180 days for nonimmigrant workers filing renewal requests under the same nonimmigrant classification.
H-1B Extensions under AC21 Regardless of Current Status H-1B AC21 extensions available regardless of H-1B status or in/out of U.S. at time of filing
H-1B Extensions under AC21 Regardless of Denial or Revocation During Timely Appeal A denial or revocation of underlying PERM or I-140 will not disallow AC21 extension during appeal.
60 Day H-1B Grace Period Nonimmigrants in E-1, E-2, E-3, H-1B, H-1B1, L-1, or TN would be granted a grace period of up to 10 days before and after their validity period and a one-time grace period, of up to 60 days or until the end of their authorized validity period, whichever is shorter.  This applies to for E-1, E-2, E-3, H-1B, H-1B1, L-1, or TN status thus providing both an additional 10 days to enter the U.S. before his or her start date and leave 60 days after early termination by beneficiary or employer.  Indeed, All the above visa categories, including H-1B, will have a one-time, up to 60-days grace period to look for another job and apply again or apply for change of status to another category without having to leave the U.S. You can stay in the U.S., but cannot work during this time.
Permits Successive H-1B Portability Petitions “Bridge Petitions” An H-1B worker who changes employers based on H-1B portability petition may again change employer even if former H-1B petition is still pending.  If your transfer or change of employer petition with Employer-1 is pending and your old approval has expired, you can file a transfer over to Emplyer-2 while the case with 1 is still pending.
Exemptions to the H-1B Numerical Cap and Revised Definition of “Related and Affiliated Nonprofit Entity” in the ACWIA Fee Context Codifies definition of institution of higher education and adds a broader definition of related or affiliated nonprofit entity. Also, revises the definition of related or affiliated nonprofit entity for purposes of the ACWIA fee to conform to the new proposed definition of the same term for H-1B numerical cap exemption.
Delay of Filing I-485 Can Impact H-1B extension under AC21 Eligibility for extensions beyond the 6th year of H-1B requires that the applicant did not fail to file the I-485 within one year of his or her priority date becoming current under the Visa Bulletin.

DHS’ proposed regulation provides some helpful clarification and new provisions that should increase the confidence of both workers and employers  that they can sustain the benefits of prior approvals in their immigrant visa cases.