New Final Rule Regarding I-140 Priority Date Retention

The long-awaited publication of the Final Rule for Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers occurred on November 18, 2016. The Final Rule will be effective as of 60 days after the publication (Monday, January 16, 2017).

On December 31, 2015, DHS/USCIS released a proposed rule that they aimed would “modernize and improve certain aspects of employment-based nonimmigrant and immigrant visa programs.” Among some of the features of the proposed rules were clarification regarding rules for H-1B portability and I-140 priority date retention as well as provisions allowing for the issuance of an EAD to certain individuals whose I-140 priority dates were retrogressed and where an Adjustment of Status application could not be filed and extending employment authorization for those with pending EAD renewal applications.

Some of the most highly anticipated changes or clarifications are:

1. Clarification Regarding Priority Date Retention and I-140 Revocation:
   1. Priority Dates can be retained by the Beneficiary as long as the I-140 has not been revoked due to fraud, willful misrepresentation of material fact, material error, or where the labor certification is invalidated or revoked.
   2. The I-140 WILL NOT be automatically revoked if the Petitioner withdraws or the business terminates 180 days after the AOS is filed. The approved I-140 will remain valid for priority date retention purposes, job portability under 204(j) and for extensions of H-1B status under 104(c) and 106(a) and (b) of AC21.
2. The “Compelling Circumstances” EAD or the “I-140 EAD”:
   Foreign nationals in E-3, H-1B, H-1B1, O-1 or L-1 status (including those in an authorized grace period) who are beneficiaries of an approved I-140 with a retrogressed priority date and do not have a pending Adjustment of Status can obtain a 1 year EAD card if they can demonstrate “compelling circumstances that justify the exercise of USCIS discretion to issue an independent grant of employment authorization.” The principal beneficiary as well as derivative beneficiaries will be eligible for the EAD card and the EAD can be renewed in one year increments as long as the beneficiary can continue to demonstrate compelling circumstances.
3. 60-day Grace Period for Nonimmigrant Workers
   Foreign nationals in E-1. E-2, E-3, H-1B, H-1B1, L-1, TN and O-1 classifications will have a grace period of up to 60 days or until the existing validity period ends to remain in the U.S. in the event the beneficiary’s employment ends. The grace period allows the nonimmigrant to find a new employer or make arrangements to leave the country without fear of being out of status.
4. EAD Renewals
   Several major changes are being enacted in relation to EAD renewals including:
   1. EAD renewals will now be accepted up to 180 days in advance of EAD expiration;
   2. Work authorization will automatically be extended for up to 180 days after EAD expiration as long as the EAD renewal is based on the same category as previously applied;
   3. USCIS will no longer be required to adjudicate EAD’s within 90 days.
5. Clarification regarding H-1B Cap Exempt Employers
   Among several “clarifications” and codifications DHS/USCIS is undertaking, the regulations will allow a nonprofit entity to qualify for fee and cap exemption if there is a written affiliation agreement with an institution of higher education as long as the nonprofit entity’s “fundamental activity” is to “directly contribute to the research or education mission of the institution of higher education.”
6. AC21 and 204(j) Portability
   Section 204(j) of the INA allows foreign nationals with an approved I-140 and with an adjustment of status that has been pending for 180 days to “port” to another employer as long as the job or occupation is “same or similar” without risking the adjustment of status process. In order to streamline USCIS processing and standardize the required evidence in the event of porting, USCIS has developed a new form- the I-485 Supplement J. There is no fee associated with the form (at this time). The Supplement J will most likely replace the need to submit what has become known as the “AC21 Letter”.

This is just a broad overview of the some of the major changes that have been implemented in the Final Rule. Over the next few weeks and as USCIS releases more information, we will go over each of these topics individually. Keep checking back with VisaPro to obtain the most up-to-date information.