New High-Skilled Worker Final Rule

December 16, 2016

Author: Susan Karlovich

U.S. Citizenship and Immigration Services has published a final rule − “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers” − to improve employment-based, nonimmigrant and immigrant visa programs. Amended regulations will enable employers to retain highly skilled workers who are beneficiaries of approved immigrant visa petitions, but are not able to obtain permanent residency for 8–10 years due to crushing backlogs caused by per-country, annual limits on green cards.  The new regulation will benefit workers from over-subscribed countries, namely India, China and the Philippines.  “High-skilled workers” include H-1B, L-1, H-1B1, O-1 or E-3 visa holders.

More specifically, the amended regulations will:

  • Allow high-skilled workers with an approved I-140 for 180+ days to retain their priority date, even if the I-140 is subsequently withdrawn by their sponsoring employer or the business is terminated
  • Permit high-skilled workers with an approved I-140 and an adjustment of status application pending for 180+ days to port to another employer, provided the position is in the same or a similar occupation
  • Permit high-skilled workers to apply for an employment authorization document (EAD) for a limited period if they have an approved I-140 but cannot yet adjust status, and can show compelling circumstances
  • Automatically extend EADs for one year for certain workers who timely apply to renew; the USCIS is no longer required to process EAD applications within 90 days
  • Create a 60-day grace period for high-skilled nonimmigrant workers when their employment ends before their authorized validity period, to enable them to obtain new employment
  • Establish a 10-day grace period for certain workers (TN, L-1, E-1, E-2 and E-3 visa holders) at the start and the end of the validity period to enable these workers to prepare to begin employment and to assist in their departure at the end of their stay
  • Allow nonprofit organizations affiliated with universities to seek H-1B cap exemptions so long as the nonprofit entity entered into a formal written affiliation agreement with an institution of higher education that establishes an active working relationship
  • Confirm the ability of a beneficiary of a labor certification filed one year prior to the end of the sixth year to seek a one-year H-1B extension beyond the sixth year, pursuant to the American Competitiveness in the 21st Century Act (AC 21)
  • Confirm the ability of a beneficiary of an approved I-140 to seek a three-year extension beyond the sixth year if the priority date has not become current, pursuant to AC 21.

This Final Rule will go into effect on January 17, 2017, just three days before President-Elect Donald Trump takes office. It is significant to note that the Final Rule is the result of a long administrative process, including publication in the Federal Register, followed by an extensive comment period before the rule was finalized. Accordingly, the new administration could not easily repeal this rule by executive action, but rather would be required to adhere to the Administrative Procedure Act, under which repeal would take years. Moreover, the rule applies only to immigrant workers who are in the United States legally and already in the “pipeline” for permanent residency.

If you have questions about the High-Skilled Worker Final Rule, contact Wilson Elser Partner Susan Karlovich.

View more Insights