1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar

Important new regulations for immigrant workers

The US Citizenship and Immigration Services (USCIS) published important new regulations for immigrant workers on November 18, 2016. The regulations become effective January 17, 2017.

Summary

The agency has amended its regulations to provide benefits to those in the employment-based first (EB1), second (EB2) and third (EB3) immigrant visa categories and their employers. The agency’s stated goal is to improve processes and increase certainty for employers seeking to employ and retain such workers, provide greater job flexibility for those workers, and clarify relevant Department of Homeland Security (DHS) policies.

New Rules

There are a number of new regulations, some of which adopt current agency policy and others that are new. The following are some of the most important ones.

For occupations in which a license is required (e.g., doctor, lawyer, etc.), the USCIS will grant the H1B visa for up to one year, if the only obstacle to license issuance is lack of a Social Security number.

For the purpose of counting the number of days spent in the US in H1B visa status towards the normal six-year limit, the USCIS will consider any twenty-four-hour period spent outside the US as one day, regardless of the reason for the absence.

A former H1B visa holder who is no longer in H1B visa status, and regardless of whether he or she is in the US or abroad, may seek an exemption from the normal six-year limit. The foreign worker must be otherwise eligible and the beneficiary of an approved EB1, EB2 or EB3 petition for whom the visa is not current under the quota system as of the date that the H1B petition is filed.

Lengthy adjudication delays of permanent resident status will not support an extension of H1B status beyond the normal six-year limit if the immigrant fails to file for permanent residence or an immigrant visa within one year of the visa becoming current under the quota system. If the visa becomes unavailable again, a new one-year period will be afforded when an immigrant visa again becomes available. The USCIS may also in its discretion excuse failure to timely file upon a showing that the failure was due to circumstances beyond the immigrant’s control.

Credible documentation that an H1B visa worker faced retaliatory action from the sponsoring employer regarding a violation of that employer’s H1B labor condition application obligations may be considered by the USCIS as grounds to grant an extension of H1B stay, or a change of status to another visa classification, notwithstanding the worker’s loss of, or failure to maintain, his or her H1B status.

The definition of “same occupational classification” for purposes of establishing the portability of immigrants to new jobs, has been modified to mean an occupation that resembles in every relevant respect the occupation for which the EB petition was originally granted. “Similar occupational classification” is now defined as an occupation that shares essential qualities or has a marked resemblance or likeness with the original occupation. This guidance is similar to what agency memoranda have already stated.

Employment eligibility verification regulations are amended to authorize employers to accept as proof of employment eligibility Form I-797C and also state that the original employment authorization document is automatically extended for up to 180 days. This is a new rule and will help employers.

Background

The US limits the number of employment-based immigrants annually, by both visa category and country of birth. The quota allocation set in 1990 has never been increased. The annual supply for most categories and countries of birth seems sufficient to prevent lengthy waiting periods; the greatest source of delay are USCIS and Department of Labor (DOL) agency processing times.

The most significant exceptions are for immigrants born in India and mainland China. So many employment-based immigrants born in those two countries are in the queue that waiting periods of for most immigrant visa categories now are many years.

Employer-sponsored EB visas tend to be for specific jobs, at specific work sites, with stated duties and compensation. In general, sponsoring employers and immigrant workers must intend after immigration is complete to work in the same job at the same work site with the same duties for the same (or similar) compensation.

Congress addressed this problem in the American Competitiveness in the 21st Century Act of 2000 (AC21). The USCIS (and its predecessor, the Immigration and Naturalization Service) issued implementing policy guidance, which has been clarified and revised over the years.

The lengthy processing delays were also a problem for H1B professional workers, since there is normally a limit of only six years of status. AC21 provided for extensions beyond the six-year limit.

The EB1 immigrant visa category includes individuals of extraordinary ability, outstanding professors and researchers, and multinational managers and executives. The EB2 category is for professionals with advanced degrees and individuals with exceptional ability. The EB3 category is for professionals and skilled workers, while the EB3W category is for other workers in short supply.

Read the full text of the new regulations here.

, , , , , , , , , , , , , , , ,

Important new regulations for immigrant workers

US green card availability to increase beginning October 1

visa-perm

Effective October 1, 2016, green cards will become more readily available for most people immigrating to the United States on employment-based (EB) immigrant visa categories.

The US State Department announced in the October 2016 edition of its Visa Bulletin that the agency is processing requests under the EB1 category for all countries of birth, effective October 1. This category includes aliens of extraordinary ability, outstanding professors and researchers, and multinational managers and executives, regardless of place of birth. During the summer, the agency reported a lengthy backlog for EB1 immigrants born in mainland China and India.

The EB2 category—for professionals with an advanced degree and aliens of exceptional ability—is also immediately available, except for individuals born in mainland China and India, for whom the category is backlogged to February 15, 2012, and January 15, 2007, respectively.

The EB3 category—for professionals and skilled workers—has limited available for all places of birth. That said, the backlog for most places is to June 1, 2016, and it is not likely to slow the process of immigration, since the Department of Labor generally takes more than four months to grant the alien employment certification application, often referred to as PERM, longer and that is a prerequisite for EB3 immigration.

The EB5 category—for investors—is currently available for all places of birth except mainland China, which continues to be where the majority of EB5 immigrants are born. EB5 is unavailable for China-born investors in projects in Regional Centers, while EB5 is available to China-born investors in non-Regional Center projects who have I-526 immigrant petition receipt dates on or before February 22, 2014.

There is an annual limited supply of immigrant visas in all EB categories that is replenished effective October 1, the first day of the new fiscal year. In categories where the annual demand tends to be greater than the limited supply, the Visa Bulletins issued for October through April often show the most movement. There is often more movement in the dates for individuals born in mainland China and India during these months. The EB1 and EB5 dates that have improved so much since the September 2016 Visa Bulletin are likely to retrogress once again later in the fiscal year, but the State Department did not release a prediction as to when or by how much.

The full text of the October 2016 Visa Bulletin can be found here.

, , , , , , , , ,

US green card availability to increase beginning October 1

US Visa Bulletin Update—EB-1 backlogs predicted

india-china

Effective August 1, 2016, the employment-based, first-preference immigrant visa (EB-1) is no longer expected to be immediately available for individuals born in India and China. Availability is predicted by the State Department to retrogress to January 1, 2010, and to not become current again until the new fiscal year begins on October 1, 2016. EB-1 will remain current and immediately available to individuals born in all other countries.

EB-1 includes:

  • EB-1A – Individuals of extraordinary ability
  • EB-1B – Outstanding professors and researchers
  • EB-1C – Multinational executives and managers

EB-1 was created as part of the Immigration Act of 1990. This important visa category has, since its creation, generally been immediately available and without any quota backlog. Employment-based immigration in other visa categories has long been slower for immigrants born in India and China due to the large number of applications filed each year.

Although the backlog is not expected to hit until the last two months of the current fiscal year, it is reasonable to assume that, with the anticipated continued growth of immigration to the US from India and China, it will only worsen in fiscal year 2017. While it is difficult to predict how quickly the wait list will grow, to avoid what may become very lengthy processing delays, your best strategy for securing an early priority date is to file your EB-1 immigrant visa petition as soon as possible.

The EB-2 (for professionals with advanced degrees) and EB-3 (for professionals and skilled workers) visa categories already retrogressed in June for individuals born in China and no forward movement is likely for the rest of the fiscal year, but then resume movement forward in October 2016 – no specific date identified, but I estimate it will be current for at least the first six months of fiscal year 2017 (i.e., until April 2017).

EB-2 worldwide is expected to have a cut-off date in the September Visa Bulletin, but the State Department has not yet predicted a specific date.

, , , , , , ,

US Visa Bulletin Update—EB-1 backlogs predicted

New policy guidance for immigrants changing employers

content_marketer_job_interview_cartoon

On March 18, 2016, the United States Citizenship and Immigration Services agency (USCIS) issued new policy guidance regarding how certain employment-based immigrants can change employers during the immigration process without jeopardizing the ability to obtain permanent residence.

In general, employer-sponsored immigration under the employment-based first (EB1), second (EB2) and third (EB3) preference immigrant visa categories requires the sponsoring employer and the immigrant to intend to work together in the job identified on the immigrant visa petition. A change of employer prior to approval of permanent resident status (popularly referred to as a green card) does not automatically terminate the residence application, but does call into question whether the required intent remains. The result is that immigrants are generally reluctant to change jobs prior to completing residence, even when other American employers are trying to recruit them.

In 2000, the US Congress recognized that slow processing by the USCIS (formerly the Immigration and Naturalization Service, or INS) harmed the ability of American employers to compete in the global market for key job skills, as immigrants chose other countries or were forced to leave the US because temporary visas expired before the USCIS completed its work. The American Competitiveness in the Twenty-First Century Act of 2000 (AC21) created greater job flexibility for immigrants to change jobs if the USCIS failed to complete processing of the application to adjust status to resident within 180 days, and if the new job is in the same or similar occupation as the old job. The USCIS was delegated responsibility to issue regulations to implement this law.

Although the USCIS never went through the process mandated by law to issue implementing regulations, the agency issued three prior AC21 policy memoranda and a FAQ. The March 18, 2016, memorandum entitled “Determining Whether a New Job is in ‘the Same or a Similar Occupational Classification’ for Purposes of Section 24(j) Job Portability” (PM-602-0122.1) is the latest.

This memorandum revises the USCIS Adjudicators Field Manual (AFM) to instruct officers to focus on the Department of Labor (DOL) occupational classification assigned to the jobs or other material information. The factors to be considered are: the duties, job requirements (skills, experience, education, training, license/certification) and wages. Location and employer industry sector are not identified, although both can certainly impact wages and are logically relevant in that regard.

The DOL occupational classifications can be found at O*NET OnLine. The DOL’s Online Wage Library can help show how the same or similar occupational classification might result in a change of wage for different locations and over time.

Some EB2 and EB3 visa categories require a DOL alien employment certification (PERM). In these cases, the DOL occupational classification is determined by the DOL on the prevailing wage determination and on the PERM application. The memorandum places the burden of proof on the immigrant to establish the DOL occupational classification for the new job.

In contrast, there is no DOL determination for the EB1 visa category for outstanding professors and researchers (EB1B), or for the multinational managers and executives (EB1C) visa categories, which could make for less predictability or greater flexibility in the outcome. The memorandum places the burden of proof on the immigrant to establish the DOL occupational classification for these jobs.

Aliens of extraordinary ability (EB1A) and aliens immigrant based on the national interest waiver (EB2NIW) self-sponsor, and are not impacted by a change of employer and the new memorandum.

In cases where the jobs have different occupational classifications, but fall within the same broad occupation, the memorandum states the officer may treat such evidence favorably. It also states that such positions will generally be considered to qualify as similar if they largely share the same duties, experience and education requirements.

The memorandum provides further guidance for career progression. While movement from junior to senior levels within the same occupation are likely to qualify, movement form a non-managerial to a managerial role will require a showing that the immigrant remains primarily responsible for the same or similar functions. The memorandum gives a favorable result in an example of a software developer being promoted to computer and information systems manager, while rejecting the promotion of a cook to food service manager, citing the different focus of the jobs as the defining characteristic.

Read the full policy memorandum at the USCIS website.

Dentons lawyers regularly guide employers and immigrant employees in developing and implementing strategies to preserve immigration benefits during such changes as work site relocation, career advancement, reductions in force and changes of employer, including AC21 issues.

, , , , , , , ,

New policy guidance for immigrants changing employers