New Immigration Rules Every Employer Needs to

Know for 2017 and Beyond

Ann Massey Badmus, Immigration Partner www.solidcounsel.com www.badmuslaw.com

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Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers -- Federal Register Vol. 81, No. 223, November 18, 2016

New Rules for H-1B Visas

• Cap exemption • Extending the H-1B

beyond the six year limit • Portability • Licensing requirement • Whistleblower

protections

H-1B Cap Exemption Bypassing the

H-1B Cap

Qualifying Cap-Exempt Employers

• College, university, or postsecondary school that is an institution of higher education as defined by a specific section of the Higher Education Act of 1965, i.e. public or nonprofit institutions. For-profit universities, colleges, or postsecondary schools typically do not qualify for cap-exemption.

• Local, state, or federal government

research institution whose primary purpose is research.

• Nonprofit research institution whose primary purpose is research.

H-1B Cap Exemption Bypassing the

H-1B Cap

Qualifying Cap-Exempt Employers

Nonprofit organization who is: • Connected or associated with an

institution of higher education through shared ownership or control by the same board or federation,

• Operated by an institution of higher education, or

• Attached to an institution of higher education as a member, branch, cooperative, or subsidiary.

H-1B Cap Exemption Bypassing the

H-1B Cap

Qualifying Cap-Exempt Employers

Nonprofit organization that has a formal written affiliation agreement with an institution of higher education and who can show that at least one of your fundamental activities is to directly contribute to the research or education mission of the institution of higher education.

H-1B Cap Exemption Bypassing the

H-1B Cap

Qualifying Cap-Exempt Employment

For profit employer whose H-1B employee will spend a majority of work time at a qualifying cap-exempt facility performing job duties that directly and predominately further the essential purpose, mission, objectives or functions of the qualifying institution, i.e. education or research purpose

H-1B Cap Exemption Bypassing the

H-1B Cap

Concurrent H-1B Employment

If H-1B employee works with cap-exempt employer, he can also work concurrently with cap subject employer during the same period. Once cap-exempt employment stops, concurrent H-1B no longer valid.

Extending H-1B

Beyond Six Year

maximum

Recapture rule

Time spent outside the U.S. can be added back to the six-year validity period. Any 24 hour or more trip outside U.S. can be recaptured.

Extending H-1B

Beyond Six-Year

Maximum

One Year Extension One year extension beyond 6th year allowed if at least 365 days have passed since filing of either a (i) labor certification with DOL or (ii) immigrant visa petition with USCIS

Extending H-1B Beyond Six Year Maximum

• 1 year extensions until application is denied or

revoked or green card approved • Pending appeal counted towards qualifying period • H-1B extension can be filed before 365 days

passed as long as 365 days will have elapsed before H-1B effective date

• Must have applied for adjustment of status within 1 year after approval of immigrant petition (if immigrant visa is available)

Extending H-1B

Beyond 6 year

maximum

Three Year Extensions Three year extensions beyond 6th year allowed if approved immigrant petition (I-140) but cannot apply for immigrant status because of per country limitations (priority date not current)

Extending H-1B

Beyond Six Year

maximum

Physical Presence in U.S.

not required For either 1 year or 3 year extensions, H-1B holders do not need to be physically present in U.S. to qualify for extensions.

H-1B

portability when

changing jobs or

employer

H-1B employee can change job or employer and begin working upon filing of a petition if: • Employee is in lawful H-

1B status • New petition filed before

expiration, and • Employee has not worked

without authorization

H-1B

portability when

changing jobs or

employer

Cap-exempt to cap H-1B – portability does not apply; therefore, employee cannot start work until October 1. Bridging – successive petitions can be filed and processed; however, subsequent petitions will depend on approval of extension of stay for previous petition.

H-1B Licensing

H-1B petition can be approved without state required license only if: • State allows unlicensed individual

to work under supervision, or

• Individual is eligible for license but for lack of social security number, lack of USCIS employment authorization, or other technical reason. Under these circumstances, USCIS will issue H-1B valid for one year.

H-1B Whistleblower Protections

If H-1B employment is terminated in retaliation for reporting LCA violations to DOL and employee falls out of status, employee may receive an extension of H-1B stay or change of status to another visa despite technical status violation (“extraordinary circumstance”).

New Rules for Employment

Based Green Card Applicants

• Priority Date Retention • Job Portability • Special Employment

Authorization

Priority Date Retention

Priority Date determines when an immigrant visa is available for a green card applicant and when a green card applicant can apply for adjustment of status. Relevant Charts

Department of State Visa Bulletin https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html USCIS Adjustment of Status Chart https://www.uscis.gov/visabulletininfo

Priority Date Retention

• Priority date is the date when a labor certification application is submitted to DOL OR date when an I-140 petition is filed with USCIS (if labor certification not required).

• Priority date is retained and can be transferred to new and subsequently approved employment based petition unless revoked for material error, fraud or misrepresentation, or invalidation of labor certification only. Employer withdrawal or business termination does not affect priority date retention.

Job Portability If I-485 adjustment status pending for 180 days or more, employee can change to different job, different employer, or self employment if: • I-140 has been approved or is pending and

subsequently approved • Original or new employer and applicant shows intent to

be employed after green card approved • New job must be in “same or similar” occupation • Applicant and employer must submit I-485 Supplement

J in response to RFE or when proposing to change positions

Job Portability - Same or Similar Occupation Determination

Same occupation means an occupation that resembles in every relevant respect the occupation described in the immigrant visa petition. Similar occupation means an occupation that shares essential qualities or has a marked resemblance or likeness with the occupation described in the immigrant visa petition.

Job Portability – Same or Similar Occupation Determination

USCIS will look to: 1. The similarity of the job duties and responsibilities; and/or 2. The similarity of the educational, experience, and/or training requirements. Established resources including: 1. DOL Occupational Outlook Handbook at www.bls.gov/ooh; 2. DOL O*NET system at www.onetonline.org; and 3. Standard Occupational Classification system used by DOL’s Occupational Employment Statistics program at www.bls.gov/soc. Applicant may submit any other relevant evidence to demonstrate that the new job is in the same or similar occupational classification as the job specified in Form I-140.

Job Portability while Green Card

• Portability still applies even if employer withdraws I-140 or terminates business as long as adjustment of status application pending for 180 days

• Applicants for national interest waiver and EB-1 extraordinary ability are exempt from portability rules, i.e. they may change positions at any time as long as continuing to work in the relevant field. I-485 Supplement J is not required.

New EAD for Compelling

Circumstances

Special Employment authorization document (EAD) available if:

• Approved I-140 petition, • Individual is in E-3, H-1B, H-1B1, O-1

or L-1 status, • Priority date is not current, and • Compelling circumstances as

determined by USCIS

Spouses and children may be entitled to EAD Does not afford status needed to apply for adjustment of status

New Rules for Employment Authorization

• Automatic EAD Extension Rule

• Work Visa Grace Periods • STEM OPT Extensions • New I-9 Form

Automatic Extension of EADs

For some employment authorization documents (EAD), automatic extension of work authorization for 180 days as long as:

Extension filed before expiration of current EAD

Extension based upon same employment authorization category as shown on expiring EAD

Extension category is one of 15 employment authorization categories

Employer complete I-9 re-verification with expired EAD and Notice of Action ( receipt notice) showing timely filed extension request

Timely Filing of EAD Renewal New rule allows filing of EAD renewal as early as 180 days before expiration of current EAD (as opposed to 120 days)

New rule eliminates 90 day processing time mandate

New rule allows concurrent filing of extension or change of status and I-765 EAD application, if applicable

** Apply as early as possible

Work Visa Admission periods

• 10 day grace periods: E-1, E2, E-3, H-1B, L-1 or TN visas and dependents can enter U.S. 10 days before start date on visa and remain up to 10 days after expiration of validity period. Worker may not work during these 10 day grace periods

• 60 day grace period: E-1, E2, E-3, H-1B, L-1 or TN visas and dependents shall be permitted to stay in the U.S. for up to 60 days after employment ends. Worker may not work during this 60 day grace period but can look for work and submit new work visa petition.

STEM OPT RULE What is OPT? - A period during which undergraduate and graduate students with F-1 status who have completed or have been pursuing their degrees for more than nine months are permitted by USCIS to work for one year on a student visa towards getting practical training to complement their education. OPT is granted for 12 months. Criteria to obtain OPT- • The student must be lawfully enrolled on a full-time

basis in a DHS- approved college; • Must be currently maintaining F-1 Status; and • The proposed practical training must be directly related

to the student’s major area of study.

STEM OPT RULE

STEM - Science, Technology , Engineering or Mathematics majors.

Only students with these degrees within these disciplines may apply for OPT STEM Extension

The new STEM rule has been effective since May 10, 2016 and allows 24 month extension of OPT for STEM occupations - list found at www.ice.gov

STEM OPT RULE – Employer Requirements

• Enroll in E-Verify and remain in good standing. • Report material changes to the STEM OPT

student’s employment to the DSO within 5 business days.

• Implement a formal training program to augment the student’s academic learning through practical experience.

STEM OPT RULE – Employer Requirements

• Provide an OPT opportunity that is commensurate with those of similarly situated U.S. workers in duties, hours, and compensation.

• Complete the Form I-983, Training Plan for STEM OPT Students, confirming that

• You have enough resources and trained personnel available to appropriately train the student;

• The student will not replace a full- or part-time, temporary or permanent U.S. worker; and

• Working for you will help the student attain his or her training objectives.

New I-9 form

Beginning January 22, 2017, employers must use the new I-9 Form dated 11/14/16. This replaces the version of the I-9 Form dated 03/08/13. Visit www.uscis.gov to access form. Some of the changes on the form include: • New Citizenship/Immigration Status field • Fields to add information for TPS and OPT

extensions • Validations and prompts to ensure information is

entered correctly

Facts of each case are different. The general information provided here should not be relied and is not legal advice.

Consult with an experienced attorney to get the right advice for your specific circumstances.

What to Do Next?

Questions? Need more information and advice? Contact Ann Massey Badmus Scheef & Stone, LLP 2600 Network Boulevard Suite 400 Frisco, Texas 75034 214-472-2161 ann.badmus@solidcounsel.com www.badmuslaw.com www.solidcounsel.com