NEW LAWS AFFECTING EMPLOYMENT BASED IMMIGRANT AND NONIMMIGRANT VISAS
On January 17, 2017, the following provisions will become law pursuant to DHS’s final rule “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers.”
· The priority date (the date on the receipt notice) for an initial EB-1, EB-2 or EB-3 petition may be used for a subsequently filed EB-1, EB-2 or EB-3 petition, AND it may be used for purposes of portability, unless USCIS denies the initial petition or revokes the petition’s approval due to:
o Fraud or willful misrepresentation of a material facts;
o A determination that the petition was approved based on a material error;
o Revocation or invalidation of the labor certification associated with the petition
· EMPLOYMENT AUTHORIZATION IN COMPELLING CIRCUMSTANCES:
Employment Authorization can be granted in 1-year increments. Foreign national who have been convicted of any felony or 2 or more misdemeanors are ineligible to apply.
o An individual who is currently in the US in valid E-3, H-1B, H-1B1, O-1 OR L-1 status;
o The principal beneficiary of an approved EB-1, EB-2 or EB-3 petition
is subject to the IV retrogression;
o Can demonstrate compelling circumstances that justify the issuance of employment authorization.
Spouses and children can apply concurrently with the principal applicant but cannot be granted a EAD until the principal is granted.
· EMPLOYER CANNOT REVOKE I-140, IMMIGRANT PETITION FOR A FOREIGN NATIONAL WHEN THE PETITION HAS BEEN PENDING FOR LONGER THAN 180 DAYS
o Employment Based IV petitions (EB-1, EB-2, EB-3) that have been approved for 180 days or more (or when an associated adjustment of status application (Form I-485) has been pending 180 days or more, will no longer be automatically revoked based only on withdrawal of the petitioner or termination of the petitioner’s business. As long as the approval has not been revoked for fraud, material misrepresentation, the invalidation or revocation of a labor certification, or material USCIS error, the petition will continue to be valid for various purposes including:
§ Retention of Priority Dates;
§ Job Portability;
§ Extensions of status pursuant to AC21
· GRACE PERIODS
o Foreign nationals and their dependents who are in the US on a E-1, E-2, E-3, H-1B, L-1 and TN visa have a 10-day grace period. If the foreign national comes on February 1, 2017, than he will be eligible to stay 10 extra days after the visa’s termination date.
o Foreign nationals with a H-2B have a grace period of 10 days for both before and after the petition validity date.
o 60 days grace period, during the period of petition validity (or authorized validity period) for E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN nonimmigrants whose employment has ended
DHS may approve an H-1B petition for a validity period of up to 1 year if a state or local license to engage in the relevant occupation is required and the appropriate licensing authority will not grant such license due solely to the foreign national’s lack of a valid social security number or employment authorization, or failure to meet a similar technical requirement.
A foreign national who has been approved for a 1-year validity period may not obtain an extension of H-1B status for the same position without proof of licensure. The employer must include evidence the identity, physical location, and credentials of the individuals who will supervise the foreign national and evidence that the employer is complying with state requirements
· H-1B CAP EXEMPTION
The term “related or affiliated to a nonprofit entity is defined both for the ACWIA fee and cap exemption purposes as to include nonprofit entities that satisfy any one of the following conditions:
1. The non-profit is connected or associated with an institution of higher education through shared ownership or control by the same board of federation;
2. The non-profit is operated by an institution of higher education as a member, branch, cooperative, or subsidiary; or
3. The non-profit has entered into a formal written affiliation agreement with an institution of higher education for the purposes of research or education; and a fundamental activity of the non-profit is to directly contribute to the research or education mission of the institution of higher education.
The new laws allow an H-1B employer that is not itself a qualifying institution, organization, or entity to claim an exemption from the cap for a H-1B nonimmigrant worker if:
1. The majority of the worker’s duties will be performed at a 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 (e.g. higher education, or nonprofit or governmental research).
· AC21 H-1B EXTENSIONS (1-YEAR INCREMENTS)
An H-1B worker may request time remaining in the 6 years statutory period, including recapture time, at the same time as requesting a 1-year AC21 extension. The H-1B employer does not need to be the same employer listed in the Labor Condition or Immigrant Visa petition. Qualifying Labor Condition or Immigrant Visa petition need not be the same as that used to qualify for the initial H-1B extension beyond 6 years but cannot aggregate the number of days multiple LCs or IVs have been pending to meet the 365 days requirement. It is important to note that only the principal beneficiary of the Labor Condition or Immigrant Visa may be eligible for an AC21 H-1B extension; spouse in H-1B status cannot piggyback.
A foreign national holding H-1B status is no longer eligible for AC21 H-1B extensions if he/she fails to file for adjustment of status or an immigrant visa within 1 year of an immigrant visa becoming available. There is an exception if failure to file was due to circumstances beyond the foreign national’s control. In addition, if the cut-off date retrogresses- per the published Visa Bulletin – during the 1 year period, a new 1-year period will begin when an immigrant visa becomes available once again.
· AC21 H-1B EXTENSIONS (3-YEAR INCREMENTS)
Current H-1B regulations authorizes approval of H-1B status beyond 6 years, in 3-year increments, for beneficiaries of approved EB-1, EB-2, and EB-3 petitions who can demonstrate that an immigrant visa is not available at the time the H-1B petition is filed because the immigrant visa classification sought is over-subscribed (i.e. a retrogression in the Visa Bulletin). The foreign national does not need to be currently in H-1B status to qualify for an AC21 3-year extension (he/she must have previously been in H-1B status and worked for 6 years). An employer may filed for an H-1B extension beyond 6 years within 6 months of the requested start date. This means that it can request the time remaining in the 6 years at the same time as requesting a 3-year extension pursuant to AC21.
The new laws encourage an H-1B worker to report the employer’s LCA violation and do not punish the foreign national’s immigration status in the US. Pursuant to 8 CFR§§214.1 (c)(4) and 248.1(b) considers this information an “extraordinary circumstance” that justifies the grant of an extension of status notwithstanding the fact that the H-1B worker failed to maintain continuous status.
· AC21 PERMANENT PORTABILITY UNDER INA§204(j)
Pursuant to 8 CFR§245.25(a) a foreign national who has a pending application to adjust status based on approved I-140 petition, must have a valid offer of employment based on a valid petition at the time adjustment is filed and adjudicated, and he/she must intend to accept the offer. Prior to making a final decision on the adjustment of status application, USCIS may require the foreign national to demonstrate, using Form I-485 Supplement J and supporting evidence, that:
1.The employment offer from the petitioner employer is continuing; or
2.The application has a new offer of employment from the same employer, a different employer or based on self-employment, in the same or a similar occupational classification as the employment offer listed in the qualifying petition, provided:
a.The adjustment application has been pending for 180 days or more; and
b.The Immigrant visa petition has been approved and not revoked, or pending for 180 days or more after filing for adjustment and is subsequently approved.
CBP NOW REQUIRES EVUS ENROLLMENTS FOR CHINESE NATIONALS 10-YEAR VISA HOLDERS BEFORE TRAVELING TO THE US
U.S. Customs and Border Protection (CBP) implemented today, November 29, 2016, a requirement for all individuals with a passport issued by the People’s Republic of China and bearing a maximum validity (10-year), B1 (visitor for business), B2 (visitor for pleasure), or combination B1/B2 visa to have a valid Electronic Visa Update System (EVUS) enrollment before traveling to the United States. EVUS is the online system used by nationals of the People’s Republic of China holding these visas to update basic biographic information to facilitate their travel to the United States. EVUS enrollments are generally valid for two years or until the traveler obtains a new passport or visa, whichever comes first.
Travelers can submit a EVUS enrollment at any time at www.EVUS.gov and will typically receive a response from the online system within minutes after submitting their information; however, some responses may take up to 72 hours. CBP encourages travelers to enroll in EVUS when they begin planning their trip to the United States to avoid uncertainties as CBP cannot guarantee a maximum processing time.
As of November 29, nationals of the People’s Republic of China holding such 10-year visas will not be able to travel to the United States without a valid EVUS enrollment. For travelers taking more than one flight to reach the United States, the EVUS enrollment will be verified when they check-in for their first flight. Nationals of the People’s Republic of China who hold such 10-year visas for travel to the United States.
CBP will not collect a fee for an EVUS enrollment at this time, but anticipates that an EVUS enrollment fee will be implemented in the future. Until the fee is implemented, travelers can complete their EVUS enrollment free of charge.
CBP operates an EVUS call center with Mandarin-speaking operators that travelers can call or email if they have questions about their enrollment. Travelers can contact the call center at 1-202-325-0180 or via email at email@example.com. The call center is available 24 hours a day, seven days a week, but will be closed on U.S. federal holidays. Although the Call Center is available to answer questions travelers might have regarding EVUS, all EVUS enrollments must be submitted online.
To enroll in EVUS, visit www.EVUS.gov.
NEW REGULATIONS FOR EAD FOR CERTAIN EMPLOYMENT BASED & NONIMMIGRANT VISA PROGRAMS
USCIS has published a final rule to modernize and improve several aspects of certain employment-based nonimmigrant and immigrant visa programs. USCIS has also amended regulations to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents. This rule goes into effect on Jan. 17, 2017.
Among other things, DHS is amending its regulations to:
- Clarify and improve longstanding DHS policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act related to certain foreign workers, which will enhance USCIS’ consistency in adjudication.
- Better enable U.S. employers to employ and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions (Form I-140 petitions) while also providing stability and job flexibility to these workers. The rule increases the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers and pursuing other employment opportunities.
- Improve job portability for certain beneficiaries of approved Form I-140 petitions by maintaining a petition’s validity under certain circumstances despite an employer’s withdrawal of the approved petition or the termination of the employer’s business.
- Clarify and expand when individuals may keep their priority date when applying for adjustment of status to lawful permanent residence.
- Allow certain high-skilled individuals in the United States with E-3, H-1B, H-1B1, L-1 or O-1 nonimmigrant status, including any applicable grace period, to apply for employment authorization for a limited period if:
- They are the principal beneficiaries of an approved Form I-140 petition,
- An immigrant visa is not authorized for issuance for their priority date, and
- They can demonstrate compelling circumstances exist that justify DHS issuing an employment authorization document in its discretion.
Such employment authorization may only be renewed in limited circumstances and only in one year increments.
- Clarify various policies and procedures related to the adjudication of H-1B petitions, including, among other things, providing H-1B status beyond the six year authorized period of admission, determining cap exemptions and counting workers under the H-1B cap, H-1B portability, licensure requirements and protections for whistleblowers.
- Establish two grace periods of up to 10 days for individuals in the E-1, E-2, E-3, L-1, and TN nonimmigrant classifications to provide a reasonable amount of time for these individuals to prepare to begin employment in the country and to depart the United States or take other actions to extend, change, or otherwise maintain lawful status.
- Establish a grace period of up to 60 consecutive days during each authorized validity period for certain high-skilled nonimmigrant workers when their employment ends before the end of their authorized validity period, so they may more readily pursue new employment and an extension of their nonimmigrant status.
- Automatically extend the employment authorization and validity of Employment Authorization Documents (EADs or Form I-766s) for certain individuals who apply on time to renew their EADs.
- Eliminate the regulatory provision that requires USCIS to adjudicate the Form I-765, Application for Employment Authorization, within 90 days of filing and that authorizes interim EADs in cases where such adjudications are not conducted within the 90-day timeframe.
Temporary Protected Status Extended for Nepal
On October 26, 2016, Secretary of Homeland Security Jeh Johnson has extended Temporary Protected Status for nationals of Nepal (and those without nationality who last habitually resided in Nepal) for an additional 18 months, effective Dec. 25, 2016, through June 24, 2018.
Current TPS Nepal beneficiaries who want to extend their TPS must re-register during the 60-day re-registration period that runs from October 26, 2016 through December 27, 2016. U.S. Citizenship and Immigration Services (USCIS) encourages beneficiaries to re-register as soon as possible once the 60-day re-registration period begins.
The 18-month extension allows TPS re-registrants to apply for a new Employment Authorization Document (EAD). Those who re-register during the 60-day period and request a new EAD will receive one with an expiration date of June 24, 2018.
It is important to note that some re-registrants may not receive their new EAD until after their current work permits expire. Therefore, USCIS is automatically extending current TPS Nepal EADs with a Dec. 24, 2016, expiration date for six months. This means that these existing EADs are now valid through June 24, 2017.
Re-registering for TPS:
To re-register, current TPS beneficiaries must submit:
- Form I-821, Application for Temporary Status (re-registrants do not need to pay the Form I-821 application fee);
- Form I-765, Application for Employment authorization regardless of whether they want an EAD;
- The Form I-765 application fee (or a fee waiver request) only if they want an EAD. If the re-registrant does not want an EAD, no application fee is required; and
- The biometric services fee (or a fee waiver request) if they are 14 years old or older.
DHS has increased Filing Fees by 30%
On October 24, 2016, U.S. Citizenship & Immigration Services announced that it is raising filing fees by about 30%. The new fees will be effective December 23rd. USCIS is almost entirely funded by the fees paid by applicants and petitioners for immigration benefits. The law requires USCIS to conduct fee reviews every two (2) years to determine the funding levels necessary to administer the nation's immigration laws, process benefit requests and provide the infrastructure needed to support those activities.
Fees will increase for the first time in six years, by a weighted average of 21 percent for most applications and petitions. This increase is necessary to recover the full cost of services provided by USCIS. These include the costs associated with fraud detection and national security (FDNS), customer service and case processing, and providing services without charge to refugee and asylum applicants and to other customers eligible for fee waivers or exemptions.
ASYLUM SEEKERS WILL GET WORK PERMITS THAT ARE VALID FOR TWO YEARS
Effective October 5, 2016, USCIS has increased the validity period for initial or renewal Employment Authorization Documents for asylum applicants from one year to two years. Applicants with pending asylum claims file Form I-765, Application for Employment Authorization, under category (c)(8). This change applies to all (c)(8)-based applications that are pending as of October 5, 2016 and all such applications filed on or after October 5, 2016.
EB-5 PROGRAM HAS BEEN EXTENDED THROUGH DECEMBER 9, 2016
The Continuing Resolution (CR) signed by President Barack Obama today officially extends authorization of the EB-5 Regional Center Program through December 9 which was due to lapse on September 30. The funding measure, passed both House and Senate earlier this week, takes effect immediately.
The EB-5 Regional Center Program has facilitated billions of dollars in direct foreign investment from countries such as India and China into a diverse range of development projects throughout the United States, generating over $15 billion from 2005-2015 and creating well over 100,000 new US jobs in that time.
TPS Extended for 6 Months for Guinea, Liberia and Sierra Leone
On September 22, 2016 Secretary of Homeland Security Jeh Johnson is extending TPS benefits for beneficiaries of TPS under the designations of Guinea, Liberia, and Sierra Leone for 6 months for the purpose of orderly transition before the designations terminate, effective May 21, 2017. After reviewing country conditions and consulting with the appropriate U.S. government agencies, Secretary of Homeland Security Jeh Johnson has determined that conditions in Guinea, Liberia, and Sierra Leone no longer support their designations for Temporary Protected Status (TPS). The widespread transmission of Ebola virus in the three countries that led to the designations has ended.
To provide for an orderly transition, current TPS beneficiaries will automatically retain their TPS and have the validity of their current Employment Authorization Documents extended through May 20, 2017. Beneficiaries do not need to pay a fee or file any application, including for work authorization, in order to retain their TPS benefits through May 20, 2017.
Although TPS benefits will no longer be in effect starting May 21, 2017, TPS beneficiaries will continue to hold any other immigration status that they have maintained or acquired while registered for TPS. The Department of Homeland Security urges individuals who do not have another immigration status to use the time before the terminations become effective in May to prepare for and arrange their departure from the United States or to apply for other immigration benefits for which they may be eligible.
NEW PERM REGULATIONS HAVE BEEN DELAYED
At the Department of Labor stakeholder meeting on 9/12/16, Acting OFLC Administrator William Thompson provided an update on the status of the PERM modernization regulation. He confirmed that the draft regulation is still undergoing review, and based on the current state of the process, implementation of a final PERM modernization regulation before the end of the Obama administration in January 2017 is "highly unlikely." A Notice of Proposed Rulemaking (NPRM) with the proposed changes may still be released at some point in the coming months, but any major changes to the PERM program do not appear to be imminent at this time.
IMMIGRATION LAW ALERT! USCIS PROPOSES RULE TO WELCOME INTERNATIONAL ENTREPRENEURS
U.S. Citizenship and Immigration Services (USCIS) is proposing a new rule, which would allow certain international entrepreneurs to be considered for parole (temporary permission to be in the United States) so that they may start or scale their businesses here in the United States.
- Who have a significant ownership interest in the startup (at least 15 percent) and have an active and central role to its operations;
- Whose startup was formed in the United States within the past three years; and
- Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by:
- Receiving significant investment of capital (at least $345,000) from certain qualified U.S. investors with established records of successful investments;
- Receiving significant awards or grants (at least $100,000) from certain federal, state or local government entities; or
- Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity's substantial potential for rapid growth and job creation.