The long-awaited final rule to modernize and improve several aspects of employment-based nonimmigrant and immigrant visa programs, in order to retain EB-1, EB-2 and EB-3 immigrant workers and high-skilled nonimmigrant workers, is moving forward and has made it through the OMB review process.  It was published in the Federal Register on November 18, 2016 and will be effective in 60 days.   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, just before President Obama leaves office.

Among other things, DHS is amending its regulations to:

• Clarifies and improves 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 enables 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.   This means that you can use the previous employer’s I-140 petition to extend your H-1B with a new employer even if it is withdrawn (as long as it was withdrawn more than 180 days after approval), or in the event of the termination of the employer’s business.  So, there is no I-140 portability; you will still need a new labor certification and I-140 petition to file your adjustment of status application.

• The final rule provides two grace periods of up to 10 days, consistent with those already available to individuals in 13 some nonimmigrant classifications, to individuals in the E-1, E-2, E-3, L-1, and TN classifications. The rule allows an initial grace period of up to 10 days prior to the start of an authorized validity period, allowing nonimmigrants in the above classifications a reasonable amount of time to enter the US and prepare to begin employment. The rule also allows a second grace period of up to 10 days after the end of an authorized validity period, which provides a reasonable amount of time to depart the US or take other actions to extend, change, or maintain lawful status.

• Establishes 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 provided their authorized stay is valid for at least 60 days after such cessation. If not, the grace period will end on the date the authorized date is set to expire. This will obviously enable own to more readily pursue new employment and an extension of their nonimmigrant status.

• The Final rule allows allows certain high-skilled individuals in the United States  to apply for work authorization, given:

1. They are the principal beneficiaries of an approved Form I-140 petition,
2. An immigrant visa is not authorized for issuance for their priority date, and
3. 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.

• Automatically extends the employment authorization in the same category and validity of Employment Authorization Documents for up to 180 days from the date of the prior EAD’s expiry (EADs or Form I-766’s) or until djudication of the EAD nrenewal application, for certain individuals who apply on time to renew their EADs.  The Form I-9 rule is also updated to permit an I-797 receipt notice to be accepted as a permissible I-9 document, in conjunction with the expired EAD, to re-verify the foreign national’s work authorization. This additional 180-day period will not apply to those categories that first require the approval of an underlying application before the EAD renewal can be adjudicated.

• Eliminates 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.

• Clarifies 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 program.

For more information, please refer here for the Final Rule.  If you have any questions, please contact our office.  We will continue to keep you posted on the implementation of these new policies.

Stakeholders are outraged by the most recent development with the so-called streamlining of the allocation of immigrant visas that are published monthly in the Department of State’s (DOS) Visa Bulletin.

Unless otherwise indicated on the USCIS website at www.uscis.gov/visabulletininfo,
individuals seeking to file applications for adjustment of status with USCIS in the Department of Homeland Security must use the “Application Final Action Dates” charts in the Visa Bulletin for determining when they can file such applications. When USCIS determines that there are more immigrant visas available for the fiscal year than there are known applicants for such visas, USCIS will state on its website that applicants may instead use the “Dates for Filing Visa Applications” charts in the Bulletin.  The USCIS website statement is supposed to be posted within one week of the Visa Bulletin publish date.

Applicants for adjustment of status may refer to USCIS for additional information by visiting www.uscis.gov/visabulletininfo.  USCIS has indicated on their website (above link) that that you may use the Dates for Filing Visa Applications chart for the corrected October 2015 and November 2015 Visa Bulletins.

Something has absolutely got to change here.  This has reached a level of complete and utter absurdity.

Refer here for November filing date information.

For background information on this issue, refer here

It has been reported to the American Immigration Lawyers Association (AILA) by a senior Department of State official that immigrant visas for EB-2 India and mainland China were exhausted for this fiscal year as of April 11th. USCIS will continue to accept EB-2 India/China adjustment of status applications based on the priority date cut-offs in both the April and May 2012 Visa Bulletins, but the cases will be on hold until the start of the new 2013 fiscal year as of 10/1/2012 when quotas open up again.  We link to the Visa Bulletins for April and May.

According to the Visa Bulletins, EB-2 India /China applicants with priority dates earlier than May 1, 2010 can continue to file adjustment of status applications with USCIS through April 30, 2012. Those with priority dates earlier than August 15, 2007 can continue to file through May 31, 2012.

By Brandon Meyer
Immigration Associate

Bad economic news seems to be everywhere. Stories of banking crises, bailouts, rising unemployment, plummeting securities and housing prices, rising inflation, rising gas and food prices, recession, depression, and the end of prosperity have all become ubiquitous over the past couple of months. The bottom and the subsequent rebound are nowhere to be seen. Now take a deep breath, exhale, and relax. At the time this column was written, I was on a flight from San Diego to Austin packed with business travelers. Oil and other commodity prices have fallen back in recent months after reaching record highs. There are signs that credit markets are beginning to function again. Insofar as pundits cannot oversell the good times (remember Dow 36,000?), pundits cannot resist the temptation to oversell doom and gloom (remember predictions last summer that oil would reach $500 a barrel?). An October 26, 2008 article in the New York Times entitled “Forecasters Race to Call the Bottom to the Market”, explains this phenomenon in greater detail.

The outcome to recent manifestations of economic instability will hopefully be much more mundane. We will all muddle through somehow, although this may seem hard to reconcile for people under the age of 30 who have never really lived through a period of economic instability. Economic growth may be slow to non-existent for the foreseeable future, but full-scale economic collapse is unlikely.

What impact does this economic uncertainty have on immigration for employers and employees alike? Many employers may contemplate downsizing in order to cut costs or reduce employee work hours (“benching”) or pay. While these strategies may be necessary from a business perspective, employers need to keep in mind the potential impact on their foreign national employees. Employers with E-3 Australian and H-1B employees must ensure that any downward revision of wages received by these employees do not fall below the figure listed on the Labor Condition Application (“LCA”) that was obtained on their behalf. Failure to comply with wage obligations of an LCA could be considered noncompliance by the U.S. Department of Labor and could lead to negative consequences for the company. Employers are also required to offer H-1B employees who have been involuntarily terminated the cost of return transportation to their last place of foreign residence. This requirement does not extend to E-3 or TN workers or to dependents of H-1B employees. It is important to consult your labor or immigration attorney prior to terminating, benching, reducing working hours, or reducing wages for foreign national employees.

Furthermore, health care providers must ensure that offers of permanent employment to immigrant nurses also remain at a level equal to the prevailing wage of the Immigrant Visa petition (“IV”) that was filed on their behalf.

The upside for employers is that if unemployment continues to rise, the opportunities for recruiting highly skilled, highly qualified workers increases. Recruiting top-notch workers now places employers in a good position to capitalize on better times in the future.

Some industries, such as banking and finance, will face tough times for the foreseeable future. Some companies, such as Lehman Brothers, have already, or will disappear in the future. Others, such as Wachovia, will be purchased and subsumed into their new owner’s business. Other industries, such as health care, are more insulated from economic slowdowns, and in fact may be poised for greater growth as Baby Boomers enter their golden years.

Foreign national employees generally feel a greater sense of insecurity during periods of economic uncertainty, as they may believe that their immigrant status makes them more vulnerable to selection for any company downsizing. How companies manage this (mis)perception is critical for maintaining employee morale and retention.

In addition to the LCA and return transportation protections for H-1B employees, there are a number of other protections for foreign national employees. Chief among them are provisions allowing H-1B employees to change employers upon the filing of a new H-1B petition, provided the employee is maintaining H-1B status. Upon termination, H-1B employees generally have ten days to depart the United States. H-1B change of employers provisions are helpful in allowing an H-1B employee to change employers in the wake of corporate downsizing, provided that the H-1B employee is still on the books of the initial company at the time of filing of the H-1B petition by the new employer. The H-1B employee can commence employment with the new company upon proper filing of the new H-1B petition. Please consult your immigration attorney prior to terminating an H-1B employee or hiring a new H-1B employee pursuant to the H-1B change of employer provisions.

An even more important protection for foreign national employees rests in the Adjustment of Status (“AOS”) portability provisions of the American Competitiveness in the 21st Century Act (“AC-21”). A foreign national with an AOS application pending for 180 days or more based on an approved or pending (with the proviso that the petition was ‘approvable when filed’) IV petition on Form I-140, that has not been withdrawn by the petitioning company or otherwise revoked by USCIS, may seek employment with a different employer in a ‘same or similar’ occupation that the I-140 petition was filed. The foreign national should notify USCIS of the change of employer, along with a description of how the new job opportunity is the ‘same or similar’ to the job opportunity described in the I-140 petition. In the absence of governing regulations, there is a lot of grey area and wide divergence of practice for how employers and employees handle AOS portability situations. However, USCIS expects to publish regulations governing AC-21 that purport to address these issues in the near future. Please consult your immigration attorney when encountering employees with possible AC-21 issues.

The next economic boom is always just around the corner. Strong companies will emerge from this period of economic uncertainty stronger and ready to seize upon new opportunities. Employees can also emerge stronger and wiser from the experience.

I will be attending the 21st Annual AILA California Chapters Conference from November 13th through 15th in San Francisco, California. I will report on any developments and other pertinent information that may emerge from this Conference in the December 2008 Immigration Solutions newsletter.

Stay tuned!