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New Rule Allows Employers to Hire & Retain Highly-Skilled Workers More Easily
January 25, 2017
The USCIS implemented a new rule last week, on January 17th, designed to help employers retain their highly-skilled foreign workers while allowing those workers more flexibility in changing jobs and advancing their careers. The new rule allows for new and expanded EAD’s and extended H-1B validly, among other changes.
New EAD’s for Greencard Applicants with Compelling Circumstances
Workers in E-3, H-1B, H-1B1, L-1 and O-1 status, who have an approved I-140 application, can apply for an EAD card (an Employment Authorization Document) if the priority date for their greencard category is backlogged, and they have “compelling circumstances” warranting that EAD. “Compelling circumstances” is not defined, but the following examples are given as illustrative of the types of situations envisioned here: (1) serious illness or disability faced by the worker or his/her dependent, (2) employer retaliation against the worker, (3) other substantial harm to the applicant, and (4) significant disruption to the employer. For “other substantial harm to the applicant”, the applicants should demonstrate that, due to compelling circumstances, s/he will be unable to extend or maintain status or obtain another non-immigrant status, and, absent continued work authorization, s/he and his/her family will suffer substantial harm. Job loss alone is not enough. For “significant disruption to the employer”, a time delay in project completion, alone, is not enough. However, such delays combined with other factors, such as the cost to train or recruit a replacement or harm to the employer’s reputation may be a sufficient compelling circumstance.
Although the foreign national can be self-employed with the EAD, and open and operate his/her own business, an interest in entrepreneurship alone will not support a request based on compelling circumstances. So, foreign nationals cannot rely on this new rule as a new avenue for entrepreneurship.
The EAD’s will be issued in 1 year increments, and the applicant must continue to have "compelling circumstances" for renewal. The Department of Homeland Security (DHS) estimates that a maximum total of 361,766 individuals will be eligible for compelling circumstances EAD’s in the first year, and an annual estimate of 64,561 individuals in the second and subsequent years.
The compelling circumstance EAD allows the foreign national to change jobs. However, once the EAD card is used, the foreign national is no longer in a valid non-immigrant status, which means that s/he cannot adjust his/her status to greencard holder through an I-485, and s/he cannot travel internationally using his/her prior work visa. So, while the foreign national is in the U.S. pursuant to the compelling circumstances EAD, s/he must obtain advance parole from the USCIS prior to international travel and must consular process his/her greencard at a U.S. Consulate or Embassy abroad, instead of adjusting while staying in the U.S. Regarding advance parole/travel authorization, it will only be granted in the USCIS’ discretion where there is urgent humanitarian need or significant public benefit. To remedy this, the worker could have his/her employer apply for another H-1B, L-1, O-1 or E-3 for him/her. Due to these inconveniences or burdens, foreign nationals should consider all short-term and long-term plans before obtaining a compelling circumstances EAD.
EAD Extension for Greencard Applicants
Where a foreign worker has an EAD pursuant to a pending greencard application, and s/he timely files to extend that EAD, the EAD is automatically extended for an additional 180 days past the EAD expiration date. In addition, applicants can file to renew EAD’s in the same employment category 180 days (instead of 120 days) in advance of the expiration date. The new rule eliminates the 90-day EAD processing time rule (so that adjudications can now take longer than 90 days), and eliminates the issuance of interim EAD’s. This new rule is designed to allow the USCIS time to adjudicate EAD applications while also minimizing the risk of gaps in employment authorization.
This new rule does not apply to H-4 EAD’s, L-2 EAD’s, F-1 EAD’s, and some other categories. Although there are 15 categories of EAD’s eligible for this extension, greencard applicants are the primary employment-based EAD applicants benefiting from this new rule.
The EAD alone does not authorize international travel. So, after the EAD expires, and the worker is in the 180-day extension period, s/he should be careful to ensure that s/he has proper travel authorization (such as advance parole) before leaving the U.S. Otherwise, the underlying greencard petition may be considered abandoned.
H-1B Grace Period
H-1B employees will now have a 10 day grace period before and after their approved validity dates, to allow them to set-up and wind-up their affairs in the U.S. before and after their H-1B validity duration, and to find new employment if terminated. This puts H-1B’s in line with the grace periods afforded workers in other visa categories, such as TN’s, L-1’s, E-3’s, E-1’s, and E-2’s.
Status Extension After Separation from Employment
Employees in H-1B, E-3, L-1, O-1 TN, H-1B1, E-1, or E-2 status who separate from their employment early for any reason will now have 60 days after their separation or until the end of his/her petition validity period (whichever is shorter) to stay in status. The foreign national cannot work during this period, but may look for new career opportunities.
Greencard Portability & Priority Date Retention
Foreign nationals who have an approved I-140 and an I-485 application pending for at least 180 days can change employers and retain their greencard application as long as their new job is in the same or similar occupation as the greencard job. To demonstrate the job similarity and greencard portability, the USCIS has issued a new form I-485 Supplement J to be completed by both the foreign national and new employer. The adjudication of this new form will give foreign workers and employers more certainty in the portability of the greencard, the similarity of the jobs, and the continued validity of the EAD which the worker is likely using for work authorization. It also improves the ability of foreign workers to accept promotions, change employers or pursue other employment opportunities.
A foreign worker with an approved EB-1, EB-2, or EB-3 I-140 petition can now change jobs and/or employers and retain the priority date from that approved petition as long as the I-140 was approved at least 180 days ago (even if the employer withdraws that I-140 petition), and it was not revoked due to fraud, material error, or willful misrepresentation of a material fact. This rule aims to improve the ability of workers to accept promotions, change employers, or pursue other employment opportunities without losing their place in line for their greencards.
An I-140 which has been approved at least 180 days ago will also remain valid for H-1B extensions (even if the I-140 employer withdraws the I-140).
The main changes are explained above in general terms. For detailed or case-specific questions, please contact Berin S. Romagnolo.
This Alert is provided for information purposes only, and does not constitute legal advice. According to Mass. SJC Rule 3:07, this material may be considered advertising. ©2017. Posternak Blankstein & Lund LLP. All rights reserved.