The U.S. Department of Homeland Security (DHS) published a final rule on November 18, 2016, to assist U.S. employers in hiring and retaining high-skilled foreign workers as well as to protect and increase the ability of these foreign national employees to pursue new employment opportunities.
Many felt this regulation was required based upon the many hurdles both U.S. employers and/or foreign nationals face during the immigration process due to “green card” quota backlogs as well as other restrictions in U.S. immigration laws. This new regulation goes into effect on January 17, 2017.
Here is the part I of an analysis of the key provisions of the New Skilled Workers Regulation.
Before discussing some specific provisions which will be most relevant to our corporate clients and the foreign nationals they employ and sponsor for visas and work authorizations, I would like to express once again my belief that there is little likelihood that the benefits of these regulations will not be undone when Mr. Trump takes office a few days after its effective date, January 17th, 2017. Since this is an actual regulation (not just a policy or executive order), it can only be undone by going through the rule making process of the Administrative Procedures Act. It could also be undone through a Congressional overrule or through actual litigation. These would take time and considering its relative “unimportance” compared to other issues our government will be facing, I am confident these actions will not happen.
1. H-1B Cap Exemption Expanded Considering the very limited number of H-1B visas allowed each year under “the cap,” these changes might prove very helpful to non-profit entities that have formal written agreements or understandings with an institution of higher education and governmental research organization. Department of Homeland Security 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 organization.
The definition of “governmental research organization” is no longer limited to the federal government; the position must relate only to one fundamental activity of the exempt organization and the sponsored foreign national must be working primarily at the site of the qualifying organization. The only negative consequence in the new rule is the government will no longer defer to a previous approval as to cap exempt status so every filed petition must address this issue.
2. Recapturing of H-1B Time Whereas the six year limit for H-1B’s does not currently count time spent outside the U.S., the time spent outside the U.S. no longer has to be within six years of the granting of the H-1B. Also changing the previous USCIS rules, the petitioner, when applying for an extension, may now combine remaining time (based on recapturing) with a one or three year extension based on a pending labor certification or approved I-140 petition. However, now, if the immigrant visa is not processed within one year of the visa number becoming available, H-1B extensions under this provision will no longer be available. These indefinite extensions of H-1B status rather than completing the immigrant visa process were sometimes utilized by non-immigrants who wanted to continue employment of their B-1 domestic workers or to bring spouses immediately to the U.S. from overseas. Once a person obtains an immigrant visa these options are no longer available.
For positions requiring licensure where the foreign national cannot get a license due to his/her visa status, petitions for one year are still available as long as the supervisor has the required license. But now greater information about the supervisor is required, including the name, credentials, location, etc.
Perhaps the most significant change will be the new grace period of sixty days granted to E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN holders whose employment is terminated prior to the actual expiration date of their non-immigrant status. If they find another sponsoring employer during this sixty day grace period, they would be eligible “to port” to the new employer and thus not forced to return to their home country to where they would have to make an H-1B visa application.
It also provides a ten day period allowing the foreign national to enter and remain in the U.S. beyond the period of the validity of the petition.