This GMS Flash Alert reports on a recently-issued USCIS rule that provides guidance on "portability” for green card applicants and H-1B holders, I-140 petition validity, establishment of grace periods for certain non-immigrant categories, and updated rules for Employment Authorization Card applications.
At the end of 2016, the United States Citizenship and Immigration Services (“USCIS”) issued a final rule1 that affects several provisions of The American Competitiveness in the Twenty-First Century Act (“AC21”)2, which was enacted in October 2000. The Act contained several provisions that brought benefits to U.S. employers and foreign workers alike, which are now affected by the final rule, amongst those “portability” for green card applicants and H-1B holders, I-140 petition validity, establishment of grace periods for certain non-immigrant categories, and updated rules for Employment Authorization Card applications.
The rule’s provisions are due to come into effect on January 17, 2017.
We highlight below the most significant changes introduced by the new rule.
The provisions in the new rule seek to alleviate some of the difficulties faced by foreign nationals while trying to change jobs and progress in their careers, with an existing employer or an altogether new employer. They also introduce more flexibility and opportunities for employers in respect of attracting and hiring foreign nationals.
Generally speaking, the changes aim to foster the appeal of the United States as a destination for skilled and talented individuals.
The new rules seek to alleviate some of the difficulties faced by foreign nationals while trying to change jobs and progress in their careers, with an existing employer or an altogether new employer. The rule also provides additional clarity as to when an I-140 petition has been revoked and when a priority date can be ported. The effect of the new rule is to allow foreign nationals career progression and certainty, thus making the United States a more desirable destination for skilled workers.
The H-1B portability provisions discuss the ability of H-1B beneficiaries to commence employment with a new employer upon filing of a non-frivolous petition. Further, it permits “bridging” – when a beneficiary files multiple successive H-1B port (transfer) petitions. In order to comply with the rule for a second successive port (transfer) while the first port is pending, the I-94 card with the original employer must remain unexpired, the petition must have been timely filed, and the beneficiary must have maintained status throughout.
This should provide more flexibility for U.S. companies to more readily adjust to needs in the market and for skilled beneficiaries to change jobs.
The 10-day grace period could allow workers in those enumerated categories more flexibility to settle in at the commencement of a validity period, as well as wrap up business at the conclusion of a validity period. The 60-day grace period may encourage both employers and workers to capitalize on opportunities.
While the exact process for I-9 verification in these situations is unclear, we anticipate that an I-765 Receipt Notice showing that the application was timely filed and within the same category, along with the original expired EAD card, will be sufficient to verify the employee.
Even despite the current 90-day processing requirement, EAD processing times frequently range between 90 to 120 days, which often cause gaps in work authorization for eligible applicants and can seriously disrupt the business of the U.S. employers that wish to hire them. Please note that work authorization gaps may still occur – especially when an individual is applying for an EAD card for the first time under a particular authorization category. By removing the 90-day processing requirement, delays for processing renewal applications is anticipated. However, the automatic extension of work authorization will definitely help several classes of EAD applicants (H4 and L2 applicants however will not benefit from the new automatic extension provisions). We encourage anyone applying for EAD work authorization – whether as an initial or renewal application – to work closely with your immigration counsel to determine the best strategy to avoid or mitigate disruptions from gaps in work authorization.
The “compelling circumstances” EAD card does expand work authorization for specific individuals who might otherwise fall through the cracks. The four (4) instances of compelling circumstances defined by the rule are as follows: (1) Serious Illness or Disability of the Applicant or Dependent(s); (2) employer retaliation against the non-immigrant worker; (3) other substantial harm to the applicant; and (4) significant disruption to the employer.
1 See the final rule (PDF 712 KB), published in the Federal Register, Vol. 81, No. 223 (November 18, 2016), p. 82398.
2 The Act aimed to create opportunities for businesses and encourage growth by expanding flexibility for non-immigrant workers who had started the employment-based immigration process.
Please note that KPMG LLP (U.S.) does not provide any immigration services. However, KPMG LLP Law in Canada can assist clients with U.S. immigration matters.
The information contained in this newsletter was submitted by the KPMG International member firm in Canada.
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