If you are an employer in the United States who hires international workers, you already know that immigration law is an immensely complex patchwork of federal and state laws, rules, and regulations. When the law changes, it’s even more complicated. Employers in the U.S. often need the advice and insights – and sometimes the legal services – of an experienced immigration lawyer to help them understand precisely what the law requires and how to comply with it. In Nevada and Southern California, employers who hire international workers can count on the advice and services of an experienced Las Vegas immigration lawyer.
On November 18, 2016, U.S. Citizenship and Immigration Services (USCIS) published a new “final” rule for employment-based immigration that will go into effect on January 17, 2017. U.S.-based employers of international workers must be aware of several major changes that will go into effect on that date. Here is USCIS’ own explanation of the changes included in the new final rule:
“Many of these changes are primarily aimed at improving the ability of U.S. employers to hire and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents, while increasing the ability of those workers to seek promotions, accept lateral positions with current employers, change employers, or pursue other employment options.”
WHAT ARE SOME OF THE CHANGES?
The changes will allow more foreign nationals to work in professional fields without full licensure, will allow more non-profits to be H1-B cap-exempt, and will provide more protection to H1-B whistleblowers. Some states already allow a foreign national to work without licensure if he or she is supervised by licensed personnel. Beginning January 17, 2017, USCIS will be able to approve an H-1B classification after examining the credentials of the supervisor and verifying that the employer is in compliance with the state’s requirements. The new final rule also expands the evidence USCIS may use to verify “that the petitioner is complying with state requirements.”
Certain non-profit groups that are affiliated with non-profit universities will, beginning January 17, 2017, be able to qualify as H1-B cap-exempt organizations. This means that these non-profit groups will be able to file H-1B petitions at any time without waiting for the April application period. To qualify as an H1-B cap-exempt organization, the non-profit must have a formal written affiliation with the university that establishes an ongoing working partnership for the purposes of research or education. Additionally, a central activity of the non-profit must contribute directly to the educational or research mission of the university.
In cases where H-1B employees report an employer violation which results in the loss of H-1B status through employer retaliation, USCIS will now consider whether such a loss of status is an “extraordinary circumstance” that justifies overlooking the loss of status. Employers are already prohibited from retaliating against any current or former H-1B worker or job applicant because the employee/applicant has disclosed information about an employer’s failure to comply with any of the H-1B provisions or because the employee has sought out or cooperated with law enforcement.
WILL NEW GRACE PERIODS BE ESTABLISHED?
Yes. For categories E, H-1B, L-1, and TN, beginning January 17, 2017, there will be a mandatory ten-day grace period before the petition or status begins, as well as a ten-day grace period after the petition or status ends. This grace period is being established to provide a reasonable amount of time for individuals to prepare to begin their employment, to depart the United States, or to take other actions to extend, change, or otherwise maintain lawful status. Foreign nationals in these classifications will be able to enter the U.S. up to ten days before their status is scheduled to begin, and they can leave up to ten days after it expires.
Foreign nationals in visa classifications E, H-1B, H-1B1, L-1, O-1, and TN, and their dependents, beginning January 17, 2017, will be entitled to a sixty-day grace period following the end of employment, so that they may pursue new employment and an extension of their nonimmigrant status, provided their authorized stay is valid for at least sixty days after the employment ends. If not, the grace period will end on the date the employment ends.
WILL THE CHANGES IMPACT EMPLOYMENT AUTHORIZATION DOCUMENTS?
Yes. Foreign nationals in the E-3, H-1B, H-1B1, O-1 or L-1 classifications (or in one of the new grace periods, either before or after entering the U.S.) and their dependents will be allowed, beginning January 17, 2017, to apply for discretionary work authorization where “compelling circumstances” can be shown to exist. To qualify, the applicant must also have an approved I-140 immigrant petition in the EB-1, EB-2 or EB-3 categories for which the priority date is backlogged.
When filing an EAD renewal in the same category, work authorization is automatically renewed for up to 180 days from the date of the prior EAD’s expiration or until adjudication of the EAD renewal application. The Form I-9 rule is also being changed so that an I-797 receipt notice will be accepted as a permissible I-9 document along with the expired EAD to re-verify the foreign national’s work authorization. This additional 180-day period will not apply to those visa categories that first require the approval of an underlying application before the EAD renewal can be adjudicated.
One other key change is being made: An employment-based immigrant petition will not be automatically revoked if it is withdrawn by the employer, if the employer’s business terminates more than 180 days after the petition’s approval, or when an associated I-485 adjustment of status application has been pending for more than 180 days. To adjust status or transfer the approved immigrant visa under the immigrant visa portability rule, the applicant will, however, be required to obtain a new, approved immigrant visa.
A variety of work visa options are available to employers depending on their hiring needs. While a good immigration attorney can help employers move past the typical obstacles to immigration, employers should understand that there is never a guarantee that a particular visa will be granted to a particular employer. Nevada and southern California employers seeking to hire international workers should consult with an experienced Las Vegas immigration lawyer who can help employers obtain the visas they need and help them stay in compliance with the terms of those visas.