Siskind Summary: The High Skilled Worker Final Rule. By Greg Siskind

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1 Siskind Summary: The High Skilled Worker Final Rule By Greg Siskind The Department of Homeland Security (DHS) and US Citizenship and Immigration Services (USCIS) have published the long-awaited final skilled worker regulation that makes major changes to the H-1B program, I-140 green card applications and employment authorization documents. The regulation is 366 pages which is about twice the length of the proposed regulation. However, the regulation is largely unchanged from the proposed rule and the increased page length is due to the inclusion of extensive discussions of the public s comments. In its summary, USCIS notes it is providing the following new benefits: - streamlining the process for US employers to workers for green cards, - increase job portability and provide greater stability and job flexibility for such workers, and - increased transparency and consistency in the application of agency policy DHS has stated its goal is to focus on high skilled workers and most of the changes relate to the visa categories heavily used by them. The rule covers the following subjects: H-1B extensions beyond six years under AC21 INA 204(j) portability allowing certain workers with pending adjustment of status applications to change employers H-1B portability allowing workers to begin employment with a new employer upon the filing of a new H-1B petition Counting workers against the H-1B cap including clarifying when time spent abroad counts against H-1B time and determining which workers are cap-exempt as a result of previously being counted against the cap H-1B cap exemption determinations for employers Protections for H-1B whistleblowers

2 Survival of an I-140 petition when an employer attempts to revoke it The establishment of priority dates in green card cases Retention of priority dates when workers change employers or accepts promotions Eligibility for employment authorization for backlogged employmentbased green card applicants with compelling circumstances Extension of the H-1B s ten day before and after grace periods to E-1, E- 2, E-3, L-1 and TN classifications Creation of new 60 day grace periods for workers who stop working prior to the end of a non-immigrant validity period (applicable to E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classifications) H-1B licensing requirements Automatic extension of EAD validity for 180 days for certain work card categories The end of the 90 day adjudication requirement for EADs There are several important changes to the rule from the proposal published in early The following are the major ones: Retaining a priority date. The proposed rule said an error in adjudicating an I-140 can lead to the loss of an I-140. The final rule clarifies that the error must be material. Eligibility for employment authorization in compelling circumstances. o The final rule clarifies that EADs may be requested during the 10 day grace periods before and after a non-immigrant classification validity period. o Renewals of EADs may be sought up to 180 days before the expiration of an EAD if the renewal is based on the same employment authorization category the renewal application is timely filed and the application still demonstrates compelling circumstances OR the applicant priority date is one year or less from the Final Action date in the Visa Bulletin in effect on the date the EAD application is filed (compelling circumstances need not be shown in this case).

3 o Family extension applications may be filed concurrently with renewal applications filed by the principal or afterwards, but may not be approved before the principal s application is approved. Automatic revocation. Clarifies that a Form I-140 will remain approved if a request to withdraw is received or the petitioner terminates its business 180 days or more after either the date of the petition s approval or the date of filing an associated application for adjustment of status. Period of stay. The proposed rule s expansion of the 10 day period of stay before and after a non-immigrant validity period from the H-1B to other NIV categories originally indicated that the purpose of the period of stay was to prepare for departure or to seek an extension or change of status based on a subsequent offer of employment. This language has been removed as it was deemed to be unnecessarily limiting. Also, with respect to the new 60 day grace period to continue in an NIV status if employment terminates early, O-1 classifications are now included. Also, the 60 day grace period will have to be used in a single period of consecutive days and cannot be broken up. But an individual can be provided other grace periods if she receives a new authorized validity period in one of the eligible categories. Duties without licensure. DHS is expanding the evidence USCIS will examine in cases where a state allows an individual without licensure to fully practice in the occupation under the supervision of licensed senior or supervisory personnel to include evidence that the petitioner is complying with state requirements. DHS is also expanding the language regarding how one can demonstrate that a license may not be issued because of the failure to possess a work status and not for substantive reasons. Definitions of non-profit entities related to or affiliated with an institution of higher education and governmental research organizations. DHS is replacing the term primary purpose with fundamental activity with respect to evaluating the affiliation between a non-profit organization and an institution of higher education or non-profit research institution. And if a formal affiliation agreement is the basis for the claimed exemption, the entity need not show an absence of shared ownership or control. The definition of governmental research

4 organization is being expanded to include state and local governmental research entities. Calculating the maximum H-1B admission period. DHS now stating that there is no time limit on recapturing time spent outside the US. The time may be recaptured at any time before the worker uses the full period of authorized H-1B admission. Lengthy adjudication delay exemption from section 214(g)(4) of the INA. Regarding getting one year extensions beyond the six year H-1B limit, the language is being changed to make it possible to base the requirement of a labor certification or I-140 being pending for 365 days to apply to the day the exemption would take effect and not the day the application is filed. Per country and worldwide limits. For the AC21 allowing three year H- 1B extensions for people in backlogged green card categories, clarifies that backlog only need exist at time extension filed and not at time H-1B adjudicated. Validity of petition for continued eligibility for adjustment of status. USCIS now calling the new form to be required to claim adjustment portability the Form I-485 Supplement J. The types of evidence that can be submitted to claim adjustment portability and the list of evidence included in the proposed rule is being deleted. A Form I-140 must be approved before a portability request may be submitted. Also, a new provision is being added to say that a pending qualifying I-140 may be approved if 1) the petitioner established the ability to pay at the time of filing and 2) all other eligibility criteria are met at the time of filing and until the beneficiary s application for adjustment has been pending for 180 days. Automatic extensions of employment authorization for renewal applicants. Adds new language that an EAD filed on the basis of a TPS grant is timely if filed during the period listed in the Federal Register for renewal of TPS. Comments Review

5 A. Overview After providing cost analyses and background on the laws that are the basis for the rulemaking, DHS has a section entitled The Increasing Challenges Caused by Immigrant Visa Backlogs. The agency notes that the employment quotas remain unaltered after 25 years despite massive growth in the size of the US economy. This is causing a huge burden on workers from various countries including India and China. Simply put, many workers in the immigrant visa process are not free to consider all available employment and career development opportunities. This effectively prevents US employers from treating them like the high-potential individuals the employer hired them to be, thus restricting productivity and the promise they offer to our nation s economy. The lack of predictability and flexibility for such workers may also prevent them from otherwise investing in and contributing to the local, regional and national economy or fully integrating into American society. Comments. 27,979 comments were received from a broad range of entities and individuals. B. Authority of DHS to Administer and Enforce Immigration Laws Many comments opposed rule claiming DHS lacked sufficient legal authority to support the proposed changes. DHS claims broad authority delegated by Congress. Commenters stated rule effectively increases the number of immigrant visas issued in excess of annual caps and also increases number of H-1B cap exempt employers. DHS says it is not modifying either. C. Immigration Fraud and National Security Concerns Several commenters discussed fraud and terrorism risks and DHS discussed current procedures that address both.

6 D. Petitions for Employment-based Immigrants and Priority Date Retention Current rules don t discuss when priority date is established in cases where there is no labor certification. The new rule provides, generally, that the priority date of a Form I-140 petition not requiring a labor certification is the date such petition is properly filed with USCIS. The new rule also disallows retaining a priority date if a petition is revoked because of fraud, willful misrepresentation of a material fact, the invalidation or revocation of a labor certification, or material error. Third, the rule amends the automatic revocation regulations to prevent a Form I-140 that has been approved for more than 180 days from being automatically revoked based solely on the withdrawal of the petition by the petitioner or the termination of the petitioner s business or within 180 days of an associated adjustment of status application being filed. Petitions will remain valid for adjustment portability and H-1B extension and compelling circumstances EAD cases. One of the controversial issues in the proposed regulation was whether a skilled worker would need a new I-140 petition to replace the withdrawn or revoked I-140. DHS had said the answer was yes in the proposed rule and takes that position in the final one (except when the applicant is otherwise eligible for adjustment portability). One commenter was upset that people changing EB categories could retain a priority date because this would essentially move them ahead in the queue over someone waiting in that queue for a much longer time. DHS indicated that this was its longstanding policy and is necessary to allow people to progress in their careers. Another commenter wanted DHS to impose a three year wait to be able to retain a priority date from a revoked I-140 versus the 180 days in the proposed

7 rule. DHS declined saying it was contrary to the goals of granting stability and mobility to workers. Some commenters asked that the rules restricting revoking an I-140 be applied retroactively to petitions revoked prior to the rule s publication. DHS has decided this would be too problematic and burdensome on USCIS. With respect to revocation of I-140s based on USCIS error, as noted above, in response to comments the language has been changed to note the error must be material. This is seen as making the rule consistent with other USCIS policy that addresses agency deference to prior adjudicatory decisions. DHS considered a comment to allow a priority date to be retained when it was determined that misrepresentation on the original I-140 application was the employer s fault and not the worker. DHS declined and while sympathizing with the worker noted that it was necessary in order to uphold DHS goal of maintaining the integrity of the immigration system. Several commenters were concerned that workers were not given notice when USCIS seeks to revoke an I-140 and cannot present evidence needed to avail themselves of AC21 portability. DHS indicated that this issue will potentially be addressed in a separate administrative action. E. Continuing and Bona Fide Job Offer and Supplement J Form The final rule codifies DHS policy and practice requiring a worker seeking to adjust status to permanent residency must have a valid offer of employment at the time the Form I-485 application is filed and adjudicated. It also reaffirms DHS policy that an I-140 needs to be approved before it will accept a portability request. USCIS is introducing a new Supplement J to Form I-485, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j) that will accompany requests for adjustment portability. The offer of employment may

8 either be the original job offer or if claiming, adjustment portability, a new offer of employment, including qualifying self-employment, that is in the same or similar occupational classification as the original job. Any supporting material and credible documentary evidence may be submitted along with Supplement J. -The definition of same or similar in the proposed rule remains the same and comes from a USCIS memorandum issued earlier in 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. DHS will not require Supplement J for individuals applying to adjust based on a national interest waiver or extraordinary ability petition. However, USCIS may inquire whether such applicants to adjust are still working in the area or field that forms the basis of their immigrant visa eligibility. DHS will allow a portability request to be made before an I-140 has been approved, but will not adjudicate a Supplement J request to approval portability until after the I-140 is approved. Basically, to get the certainty of portability being approved, the I-140 must be approved. But one need not wait on the I- 140 to port if they are comfortable with the risk of the Supplement J being denied. The ability to pay is based on the facts at the time of filing the I-140 and for porting purposes. USCIS will not evaluate an employer s continuing ability to pay even after an applicant has quit. Furthermore, USCIS will review the pending I-140 petition to determine whether the preponderance of the evidence establishes that the petition is approvable or would have been approvable had it been adjudicated before the associated adjustment application was pending for 180 days or more. And DHS will deny an I-140 and portability if it is revoked or withdrawn or the business terminates in less than 180 days from the time of filing.

9 Comments. DHS agreed with a commenter that the Department of Labor s Standard Occupational Classification (SOC) system is problematic in the porting context because it is rarely updated and similar occupations are often in disparate major groups in the SOC. So it has removed the specific references to SOC codes in the final rule. However, SOC codes can still be one factor that may be considered in conjunction with other material evidence. A number of commenters complained about making Supplement J mandatory and that some employers would balk at the burden of having to complete the form. DHS responded by saying that the commenters did not provide evidence of the burden and that it is not much more work than is required currently without the form. Also, easier to process requests with a form than by a letter request and make process more transparent. Also, new process will give people more certainty about portability before the I-485 is adjudicated and maybe not accept a new job that won t work for portability purposes. Commenters expressed concern that waiting on a Supplement J approval will exacerbate I-485 backlogs. DHS does not believe that will be the case and it will actually reduce times by streamlining the portability application process. Some commenters suggested that questions on the Supplement J requiring employers to provide information on their type of business, gross and net annual income and number of employees is not relevant to a portability determination. USCIS agreed but said the information was still helpful in determining whether two jobs are in the same or similar occupational classification or whether the job offered in the underlying I-140 is still available. F. Compelling Circumstances Employment Authorization The final rule is described as a stopgap measure, in the form of temporary employment authorization, to certain nonimmigrants who are the beneficiaries

10 of approved employment-based immigrant visa petitions caught in the lengthening backlogs for immigrant visas and who face compelling circumstances. To qualify for a work card, an individual must meet the following requirements: 1. Be in the US in E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status, including in any grace period, on the date the EAD request is filed; 2. Be the principal beneficiary of an approved Form I-140 petition; 3. Establish that an immigrant visa is not authorized for issuance based on his or her priority date, preference category, and country of chargeability according to the Final Action Date in effect on the date the application is filed; and 4. Demonstrate compelling circumstances that justify the exercise of USCIS discretion to issue an independent grant of employment authorization. The rule limits the grant of an EAD to one year, but renewals may be sought if the compelling circumstances continue or the difference between the individual s priority date and Final Action Date is one year or less (without having to show compelling circumstances). Family members of these individuals may also apply for an EAD for up to the same period as the principal applicant. Applications will be filed using Form I-765. Comments. One commenters supported barring people with felony convictions from receiving an EAD. DHS confirmed that applicants with any felony or two or more misdemeanors are ineligible for and EAD based on compelling circumstances.

11 Some commenters asked about the status of one who gets an EAD based on compelling circumstances and whether unlawful presence is accrued during the EAD period. DHS noted that while one must have a lawful nonimmigrant status at the time they apply, such individuals will generally lose that status once they engage in employment under an EAD. The person is not maintaining his or her nonimmigrant status, but he or she will generally not accrue unlawful presence during the validity period of the EAD or during the pendency of a timely filed and non-frivolous application. That should allow people to process a green card or nonimmigrant visa at a consulate without unlawful presence problems. Commenters suggested DHS permit EAD holders to apply to adjust status when a priority is current. DHS indicated that this would generally be barred because the applicant will not be maintaining a nonimmigrant status. If a person leaves, gets a new nonimmigrant visa and reenters, adjustment would be possible. [NOTE: Advance parole appears to be possible, but USCIS does not indicate if a person could file to adjust if they reenter with parole status. Furthermore, 245(k) permits adjustment applications in some cases if the period of violating one s status is less than 180 days and would presumably still allow one to adjust]. A majority of commenters criticized the EAD saying that the compelling circumstances requirement would narrow the pool of beneficiaries too much and recommended providing EADs to anyone with an approved I-140 who is maintaining his or her nonimmigrant status and who is waiting on a priority date to become current. Some also indicted they wished DHS hadn t finalized this rule at all because it is too narrow and will be tougher to widen later. Others pointed out that no other EAD category requires a showing of compelling circumstances. Some pointed out that there is no compelling circumstances requirement for DACA or adjustment of status-based EAD applications. DHS didn t argue that they lacked the legal authority to provide a broader benefit. Instead, they indicated this was a policy decision based on striking a balance between competing priorities. They argue that to have gone further would have the potential to create uncertainty among employers and foreign

12 nationals with consequences for predictability and reliability in the employment-based immigration system. They are concerned with a large number of individuals falling out of nonimmigrant status and this would reduce stability for workers. DHS also believes that there are numerous mechanisms for high-skilled workers to obtain employment in the United States under a variety of applicable nonimmigrant classifications and, as necessary, change from one nonimmigrant status to another. DHS believes this category should be limited to only those intending immigrants, well on their way to achieving lawful permanent resident status, in the event certain circumstances arise outside their control, and that the existing framework fails to meaningfully address. DHS also believes some of the other new benefits, like the 60-day grace period and the ability to retain employment-based immigrant visa petitions and related priority dates will reduce the need for the EAD benefit. DHS advances the argument as well that a broad EAD benefit might discourage employers from filing green card applications if they know workers can leave after just 180 days. [Note: Couldn t employers concerned about this simply ask workers to sign an employment contract?] Some commenters questioned DHS authority to issue EADs based on compelling circumstances. DHS cites to INA Section 103(a)(3) with gives DHS broad discretion to administer immigration laws and establish regulations deemed necessary to carry out this authority. And Section 274A(h)(3)(B) of the INA recognizes that employment may be authorized by legislation or by DHS. Other commenters noted that the compelling circumstances EAD was not referenced in President Obama s 2014 executive actions speech or that it didn t achieve objectives in that speech focused on improving the situation for skilled workers. DHS defends saying this is consistent with the directive to provide stability to high skilled I-140 beneficiaries. DHS addressed a number of comments suggesting what kinds of situations should meet the test for compelling circumstances. The framework for

13 compelling circumstances from the original Notice of Proposed Rulemaking remains the same and the four examples of situations are still included as a nonexhaustive list of examples: 1. Serious illness or disability faced by the nonimmigrant worker or his or her dependent; 2. Employer retaliation against the nonimmigrant worker; 3. Other substantial harm to the applicant; and 4. Significant disruption to the employer. In the proposed regulation, DHS invited the public to suggest other types of compelling circumstances. Some commenters asked DHS to clearly define compelling circumstances because of a concern that there will be unfair and inconsistent results. DHS argued that to provide a bright-line definition would end up limiting DHS flexibility which would cause more denials. But DHS is providing a non-exhaustive list of illustrative circumstances that USCIS might find compelling. Serious Illness and Disabilities. One example is if an nonimmigrant worker can show that he or she or his dependent is facing a serious illness or disability that entails the worker moving to a different geographic area for treatment or otherwise substantially changing his or her employment circumstances. Employer Dispute or Retaliation. The nonimmigrant can show involvement in a dispute regarding the employer s alleged illegal or dishonest conduct as evidenced by, for example, a complaint filed with a relevant government agency or court and that the employer has retaliated or harassed. DHS would not definitively say wither being in a labor dispute is enough. Other Substantial Harm to the Applicant. The nonimmigrant can show that due to compelling circumstances he or she will be unable to timely extend or maintain status or obtain another nonimmigrant status and absent an EAD would suffer substantial harm. An example might be a worker with an industry-specific skillset in a high-tech sector for years with a US entity that is unexpectedly terminating its business where the worker can show that the

14 same or similar industry does not materially exist in the home country. Or a demonstration that returning to the home country would cause significant hardship to the worker and his or her family [Note: the analysis appears similar to a J-1 hardship waiver]. DHS notes that approaching the time limit on an NIV category isn t alone a compelling circumstance but it might be a factor to be considered. The same is true for a job loss in and of itself. But it could be a factor when combined with others. Significant Disruption to the Employer. If the worker can show that due to compelling circumstances 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. A delay in completing a project alone likely not enough but may be when combined with other factors like the cost to train or recruit a replacement or harm to an employer s reputation in the marketplace. Other examples of significant disruption include the following: An L-1B nonimmigrant sponsored for a green card and the employer undergoes a restructuring such that the worker is no longer eligible for an L-1B AND there are no other options AND the employer would suffer a substantial disruption without the L-1B. An H-1B nonimmigrant who provides critical work on biomedical research for a non-profit entity and the employer becomes a for-profit entity such that the worker is no longer exempt from the H-1B cap. Commenters offered numerous examples of compelling circumstances and DHS addressed how they would be considered. DHS noted that compelling circumstances are generally situations outside a worker s control that warrant DHS exercise of discretion.

15 DHS does not believe that a long wait for an immigrant visa in and of itself constitutes a compelling circumstance. Nor does DHS believe that many of the other scenarios suggested by commenters involve compelling circumstances on their own. Home ownership, notable academic qualifications, or dissatisfaction with a position or salary, standing alone, do not rise to the level of a compelling circumstance. But any of these could be a factor when combined with other circumstances. Unemployment is also not considered a compelling circumstance. But could be when combined with another factor such as illness, employer retaliation or would result in substantial harm or significant employer disruption. The impact of the principal applicant s departure on family will be considered. Children who have aged out are not eligible for a compelling circumstances EAD. For would be start-up founders, an interest in entrepreneurship alone is not enough. But circumstances relating to a business start-up could be relevant to a presentation of compelling circumstances. NIWs. DHS notes that several commenters urged DHS to include the approval of a national interest waiver as a stand-alone compelling circumstance. DHS appears to agree. With regard to Form I-140 petitions approved in the EB-2 category based on a national interest waiver, in this final rule DHS is confirming that beneficiaries of approved I-140 petitions under the EB-2 category, which include national interest waiver beneficiaries and physicians working in medically underserved areas, are eligible to apply for employment authorization based on compelling circumstances, as long they meet all other requirements. In a footnote, DHS notes that doctors getting physician national interest waivers are still required to meet the requirements of the physician national

16 interest waiver program and may also have to separately meet J-1 waiver requirements. Commenters suggested expanding the compelling circumstances EAD to E-1, E- 2 and J-1 nonimmigrant classifications. DHS indicated that granting EADs to E- 1s and E-2 would impact international treaties and foreign policy considerations [Note: Really? Seems doubtful]. Regarding J-1s, because of the two year home residency requirement, granting them EADs might be contrary to the statute [Note: DHS regularly provides advisory opinions documenting that the home residency requirement is not applicable and would presumably have been an easy solution for this concern]. Several commenters asked for EB-4 religious workers to be included but DHS noted that this regulation was carefully tailored to address high-skilled individuals. DHS received a comment suggesting allowing people to apply as much as 180 days in advance of the expiration of their nonimmigrant status. DHS does not believe this is necessary. Under the rule, an EAD may be filed at any time in advance of the expiration of nonimmigrant status. Renewal applications must be filed prior to the explanation of a person s current EAD. An application filed in a grace period is acceptable. Some commenters asked for EAD validity periods longer than one year. DHS said no because the measure is designed to be a stopgap and wants to encourage workers to go back in to a nonimmigrant status when possible to do so. DHS addressed confusion over whether visa unavailability was based on the Application Final Action Date chart of the Dates for Filing Employment- Based Visa Applications chart in the monthly State Department Visa Bulletin. DHS confirmed it is the Final Action Date chart.

17 DHS agreed with commenters who complained about how confusing it is to determine whether a person is eligible to renew an EAD. Under the final rule, a beneficiary seeking to renew an EAD based on compelling circumstances remains eligible if his or her preference category and country of chargeability remains backlogged and either there remains compelling circumstances or a priority date is less than one year away from being current based on the Visa Bulletin when the renewal is filed. If an applicant has a current priority date and has not filed for adjustment of status, a compelling circumstances EAD extension will be denied. Some commenters suggested that DHS automatically provide advance parole in conjunction with a compelling circumstances EAD and others asked that people be able to file for adjustment of status if they are able to reenter on parole status. DHS notes that they are authorized to grant parole on a case-by-case basis for urgent humanitarian reasons or significant public benefit. DHS will consider granting parole for humanitarian reasons or matters of significant public benefit. But DHS notes that INA 245(k) requires one to have been admitted to benefit and parole is not an admission. Therefore, it does not believe individuals granted parole and who reenter in that status are eligible for adjustment pursuant to 245(k). [Note: What about if one applies for adjustment immediately upon reentering the US and before any employment commences? Wouldn t they be eligible to adjust under 245(a)? Is employment with an EAD after parole a problem under 245(a)?] G. Nonimmigrant Grace Periods The new rule allows DHS to provide grace periods of up to 10 days before the petition validity period (or other authorized validity period) begins, and of up to 10 days after the validity period ends to nonimmigrants in certain employment-based categories that previously hadn t had these grace periods. The H, O and P categories are now joined by the E-1, E-2, E-3, L-1and and TN classifications.

18 DHS may also authorize a grace period of up to 60 days in the E-1, E-2, E-3, H- 1B, H-1B1, L-1, O-1 and TN classifications during the period of petition validity when employment ends for individuals (such as in a lay off). There is no limit on the number of 60-day grace periods one can get in total, but only one may be granted during each authorized validity period. Employment is not permitted during the grace period. People in either the 10-day or 60-day grace period may apply for an extension or change of status and benefit from H-1B portability. Comments. DHS considered suggestions to add a number of other nonimmigrant categories but declined because the focus of this regulation is on the employment of highskilled workers. DHS notes in response to a comment, that the grant of the grace periods are a matter of discretion and are not guaranteed. A commenter noted that DHS had changed the regulatory language in the proposed rule to say that nonimmigrants may be admitted for the validity of the petition plus an additional period of up to 10 days and the current language says an H-1B shall be admitted. DHS indicated it was deliberately changing the language to clarify that USCIS and CBP have the discretionary authority to limit periods of stay for all nonimmigrant classifications. DHS notes in response to a comment that it is possible in limited instances to be able to use both the 60 and 10-day. Use of both grace periods may occur, for instance, when a nonimmigrant worker, upon his or her last admission, was provided with a grace period of up to 10 days at the expiration of the validity period, and then experiences a cessation of employment in the last 60 days of the validity period. Commenters suggested including the A, H-3, G, I, O, P and Q nonimmigrant categories to the 60-day grace period. DHS only added the O-1 because of the focus on high skilled workers.

19 DHS notes in response to a comment that individuals may be eligible for the 60-day grace period if they port to a new H-1B employer and the petition for the new employment is denied prior to the expiration of the validity period for the previously approved petition on which the individual s status had been based. Commenters expressed concern that DHS could shorten or refuse the 60-day grace period on a case by case basis. DHS indicated it was reserving the right to shorten or not approve the grace period and it might be in cases Several commenters asked that employment be permitted during the grace periods so that workers could begin new jobs while awaiting approval of a petition filed by a new employer. DHS declined consistent with longstanding policy without offering a legal or explaining the policy. They also declined to allow nonimmigrants to use the grace periods to work to start their own businesses since the purpose is to help people transition to new employment. [Note: USCIS has traditionally taken the position that activities related to starting a business but before the business is operational are not considered employment. And since under Neufeld 2, a business an individual owns can file an H-1B in certain circumstances on behalf of the owner, this does not seem to make sense]. H. Job Portability for H-1B Nonimmigrant Workers According to DHS, the final rule codifies longstanding DHS policies regarding H-1B job portability under INA 212(n). Under the statute, an H-1B must have been lawfully admitted, must not have worked without authorization after such lawful admission and be in a period of stay authorized by DHS. DHS confirms its previous policy that the new H-1B petition must have been filed while the worker is in H-1B status or is in a period of authorized stay based on a timely filed H-1B extension petition. Employment under the pending H-1B portability petition continues until adjudication.

20 The final rule allows H-1B employers to file successive H-1B portability petitions ( bridge petitions ) for H-1B workers. In other words, if a person is working for a second employer based on portability, they can switch to a third employer without having to wait on the second petition to be approved as long as the interim portability petition has been approved or is pending and the I-94 for the worker remains unexpired. Commenters pointed out that requiring one be in H-1B status or have an extension pending goes further than the plain language of the statute permits. DHS responds simply by saying it interprets otherwise. [Note: The statute refers to being admitted in H-1B or otherwise provided H-1B status. It does not require one to currently be in H-1B status and Congress could simply have said that one must be in H-1B status if that s what was meant]. DHS clarified in response to a comment that the new rule does not make the 240-day employment authorization extension provision moot since the porting rule does not apply to situations where an employer files a petition for an employee seeking continuation with the same employer without change. But it does allow employment to continue until a petition is adjudicated in the case of either new employers or new positions with the same employer. Commenters asked DHS to clarify the effect of travel outside the US on the status of beneficiaries of pending bridge petitions. DHS first acknowledges that otherwise admissible H-1B nonimmigrants may travel and be admitted in H-1B status while H-1B portability petitions are pending. However, one must prove at a port of entry that they are eligible for admission in that status. If the original H-1B petition has expired before seeking admission, or if the petition is no longer valid, the beneficiary must present evidence that USCIS has approved a new H-1B petition to be admitted to the US. If the original H-1B hasn t expired yet, then all that is needed is a copy of the previously issued Form I-94 or Form I-797 approval notice and a Form I-797 receipt showing the new petition was timely filed on the individual s behalf. Regarding what happens if an intervening H-1B petition in a bridge situation is denied or withdrawn, as long as the beneficiary was in a valid status when each

21 was filed and the petitions were each timely filed, the person s ultimate H-1B should still be approvable under the portability rules. DHS addressed the long simmering question of whether H-1B portability applies in the context of a change from a cap-exempt to cap-subject employer and whether porting rules allow cap-subject employment to begin prior to the beginning of the fiscal year (October 1 st ). A commenter noted that H-1B portability provides employment authorization but not status. DHS responded that an H-1B nonimmigrant worker s cap-subject employment may not begin prior to October 1 of the fiscal year for which his or her capsubject petition is approved Therefore, in the circumstances described by the commenter, the H-1B nonimmigrant workers would not be eligible to begin working upon the timely filing of a nonfrivolous petition. [Note: this is actually a rejection of longstanding USCIS policy stemming from letter correspondence between USCIS Efren Hernandez and immigration attorney Naomi Schorr that has been the only commentary ever from the agency on this topic]. I. H-1B Licensing Requirements DHS clarifies in the final rule that in addition to providing evidence in an H-1B petition concerning the duties to be performed by a prospective beneficiary as well as the identity, physical location and credentials of the person who will supervise, the petitioner must also submit evidence of compliance with state requirements. If a license is normally required but the beneficiary doesn t have one, then the petitioner must show how the beneficiary will be able to work. That may include documentation that the H-1B nonimmigrant may fully perform the duties of the occupation under the supervision of licensed senior or supervisory personnel. The rule allows for a temporary exception to the license requirement for individuals who were substantively qualified for licensure but who could not get a license because of the need to have a Social Security number or employment authorization. The temporary exception may also be available in

22 cases in which the inability to obtain a license is due to a similar technical requirement. These petitions may be approved for up to one year. Thereafter, an H-1B petition filed on such a beneficiary s behalf may not be approved unless the required license has been obtained, the beneficiary is employed in a different position that requires another type of license, or the beneficiary is employed in the same occupation but in a different location that does not require a license. A commenter asked for a similar accommodation regarding physicians who complete their graduate medical training in H-1B nonimmigrant status using a limited or restricted license but who require an unrestricted license to begin post-training work in H-1B status. The commenter noted that the doctor may not be eligible for an unrestricted license because post-graduate training is not yet completed. The commenter requested USCIS consider this a technical impediment to obtaining a license and approve the H-1B. DHS declined indicating it does not view the absence of completed post-graduate training as analogous to the purely technical prerequisites included in the rule. A number of commenters complained about one year being too short of an approval period and asked either for a normal approval period or to issue a request for evidence after a year to ensure that the license has been issued. DHS declined both requests. Regarding the second, it indicated it would require USCIS to incur additional costs without collecting an appropriate fee. The 2009 Velarde Memorandum from USCIS allows the granting of H-1Bs approvals for the full duration for health care occupations even if a license is granted in one year increments as long as the license is unrestricted. A commenter asked that the memo be incorporated into the final regulation. DHS declined to include it, but indicated it will continue to adjudicate petitions consistent with that policy. J. Employers Exempt from H-1B Numerical Limitations and Qualifying for Fee Exemptions

23 Fifteen years after AC21, DHS is finally codifying its policy interpretations regarding which employers are exempt from the H-1B numerical caps and which employers are exempt under ACWIA from paying certain H-1B fees. Under current policy, DHS allows nonprofit entities to qualify for the H-1B cap and fee exemptions if they are 1) connected or associated with an institution of higher education through shared ownership or control by the same board or federation; 2) operated by an institution of higher education; or 3) attached to an institution of higher education as a member, branch, cooperative, or subsidiary. The new rule also allows nonprofit entities to qualify for cap and fee exemptions on the basis of having a written affiliation agreement with an institution of higher education. An agreement can serve as the basis for the cap and fee exemption if the agreement establishes an active working relationship between the nonprofit entity and the institution of higher education for the purposes of research and education and so long as a fundamental activity of the nonprofit entity is to directly contribute to the research or education mission of the institution of higher education. This is a major departure from the proposed rule which required the relationship with the institution be the nonprofit s primary purpose and should be much easier for nonprofits to prove. Governmental research organization is defined to include local, state and federal government research entities and such organizations are exempt from the H-1B cap and the ACWIA fee. The rule also addresses cases where an H-1B workers is not directly employed by a cap-exempt employer, the application of cap limitations to H-1B workers where cap-exempt employment ceases and the procedures for concurrent capexempt and cap-subject employment. No changes were made from the proposed rule. Under current policy, employed at works for H-1B cap exemption 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."

24 Under the new 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. A commenter suggested including government entities as entities that can qualify for cap exemption based on an affiliation with an institution of higher education. The example is given of VA hospitals that are connected to academic institutions. DHS declined saying the statute didn t permit but did indicate that it will continue to consider exemption requests from government entities that are also organized as nonprofit entities and that the definition of nonprofit organization is not being changed by the new rule. Another commenter asked that DHS allow for deference to another agency s determination that a nonprofit entity is related to or affiliated with an institution of higher education. DHS declined noting that another agency may use a different substantive standard than immigration law requires. [Note: The commenter was referencing the US Department of Health and Human Services green book which lists the affiliations between teaching hospitals and medical schools for purposes of Medicare funding. As other agencies are often subject matter experts, DHS might have found deferring to another agency s findings to be a way to ensure higher quality, more consistent decisions are reached.] Several commenters criticized DHS for defining nonprofit research organization and governmental research organization for fee and cap exemption purposes as having to be primarily engaged in or promoting research. DHS disagreed noting that the limitations have been in place since 1998 and more than a decade for cap exemption purposes.

25 DHS is now abandoning the deference policy from 2011 that required USCIS to exempt from the H-1B cap employers claiming affiliation exemptions if prior USCIS determinations had held that an affiliation qualified for cap exemption. DHS believes that the policy was supposed to only be an interim guidance and the new rule better reflects current operational realities. DHS responded to a commenter s request to create a mechanism for an H-1B petitioner to obtain a pre-determination of whether it qualifies for an exemption from the H-1B cap by noting it is in the process of evaluating how to address the administration of the new cap and fee exemption provisions procedurally. Commenters suggested that when cap-exempt employment ceases, concurrent H-1B employment with a cap-subject employer should be authorized to continue until the end of the existing H-1B validity period. While DHS indicated it appreciated the difficulty cap-subject employers and H- 1B visa holders may face if cap-exempt employment ceases, as soon as the H-1B nonimmigrant worker ceases employment with a cap-exempt employer, that worker becomes subject to the H-1B numerical limitations. In these cases, USCIS may revoke the approval of the cap-subject employment petition. Another commenter recommended that if one employer is cap-exempt and the exemption is the basis for employment, only concurrent employment at other cap exempt institutions should be permitted. DHS declined citing their longstanding policy. K. Exemptions to the Maximum Admission Period of H-1B Nonimmigrants. DHS is codifying in the final rule longstanding policies regarding calculating time counted toward the maximum period of H-1B admission as well as exemptions from such limits. The rule addresses 1) when an H-1B nonimmigrant worker can recapture time spent physically outside the US; 2) whether the beneficiary of an H-1B petition

26 should be counted against the H-1B cap 3) when an individual qualifies for an H-1B extension beyond the general 6-year limit due to lengthy adjudications; and 4) when an individual qualifies for H-1B extension beyond the general 6- year limit due to the per country limitations on immigrant visas. DHS is including in 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 resubjecting 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. Time spent in the US in categories other than H-1B or L-1 do not count against the H-1B time limit. DHS also added in the final regulation new language making it clear that remaining H-1B time may be recaptured at any time before the foreign worker uses the full period of H-1B admission. With regard to H-1B extensions based on labor certification and I-140 adjudication delays, the final rule includes the following provisions: