New Rules Affect H-1B Petitions: Job Portability, Occupational Licenses, Cap/Quota Exemptions, Extensions Beyond Six-Year Limit

On November 18, 2016, the Department of Homeland Security (DHS) published regulations concerning several employment-based immigration areas. The regulations, with the heading, “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers,” are effective January 17, 2017.

The new regulation has several H-1B-related provisions that more or less confirm existing USCIS practices for adjudicating H-1B petitions.

H-1B Portability

For H-1B portability, the regulation confirms that an H-1B worker can start working in a different job with the same employer or for a new employer once the new H-1B petition is pending.

The three key requirements are:

1. the H-1B worker entered the U.S. with an H-1B visa
2. the employer files a “nonfrivolous” petition (properly prepared, signed, with the correct fee), and
3. the H-1B worker has not worked without authorization since the most recent entry to the United States.

Work authorization based upon the pending petition ends once USCIS adjudicates the petition. If approved, work authorization is then according to the new petition. If denied, work authorization terminates.

In the case of “serial” H-1B petitions, whereby an H-1B worker ports to one employer and then ports to yet another employer while the first “portability” petition remains pending, a denial of the first portability petition (or more, if there were other such “bridge” petitions) would prevent approval of the final petition if the H-1B worker’s original H-1B petition no longer was valid.

For example, let's say that an H-1B worker has H-1B status valid to December 31, 2016. He ports to employer B. While employer B’s petition is pending, he then ports to employer C. If USCIS denies employer B’s petition before December 31, 2016, it will not affect employment authorization with employer C. On the other hand, if USCIS denies employer B’s petition January 1, 2017 or later, USCIS will not approve employer C’s request to extend the H-1B worker’s status; rather, the worker would need to travel abroad, apply for a visa, and return to the U.S. to continue working for employer C.

H-1B Petition Approval in Cases Where Job Requires a License

For jobs that require a state license, such as a doctor, engineer, pharmacist, or teacher, USCIS will approve an H-1B petition if the person can perform the duties of the occupation under supervision of a licensed professional.

If the person cannot perform the duties of the occupation without the license and cannot obtain the license without a Social Security Number or work authorization, USCIS will approve the petition for one year to allow the person to enter the United States and complete the licensure process. In the latter scenario, the H-1B petition must document the licensure requirements and, if permitted by the respective state agency, evidence that the prospective H-1B worker has registered or submitted an initial application for licensure.

H-1B Cap Exemptions

The regulation references the statutory provision that exempts certain H-1B employers from the annual quota: colleges and universities and affiliated nonprofits, nonprofit research organizations, and governmental research organizations.

For “affiliates” of colleges and universities, the regulation provides guidance for different ways to establish the affiliation:

1. shared ownership or control by the same board or federation
2. the college or university operates the nonprofit
3. the nonprofit is a member, branch, cooperative, or subsidiary of the college or university, or
4. the nonprofit has a formal written agreement with the college or university for research or education, and a “fundamental activity” of the nonprofit is to contribute to the research or education mission of the college or university.

If an H-1B worker will not be employed directly by the cap-exempt employer but rather will be working “at” (i.e. on site) the cap exempt employer, the H-1B petition must demonstrate that the duties the worker will perform are connected to the “essential purpose, mission, objectives, or functions” of the exempt organization.

For example, while a private practice physician whose office is at a university hospital and who participates educating residents might qualify for an exemption, an accountant who works for an outsourced firm that places accountants on site at the same university hospital likely would not qualify for a cap exemption.

Finally, an H-1B worker who is working for a cap-exempt employer may obtain concurrent H-1B status to work for a cap-subject organization. As long as there remains at least one cap exempt employer, such a worker can have any number of cap-subject employers. Once there no longer is a cap-exempt employer, the H-1B worker must obtain one of the 85,000 visas available each federal fiscal year, which runs from October 1 to September 30 of the following year.

Extensions Beyond the Six-year Limit: Recapture of Time Abroad and AC21 Extensions

There are several items in the new regulation related to extending H-1B status.

First, the regulation confirms that time spent outside the U.S., which the H-1B worker can document through Customs and Border Protection (CBP) travel histories, plane tickets, boarding passes, or other evidence, does not count against the six-year limit.

Second, to qualify for an extension beyond the six-year limit under AC21 (American Competitiveness in the 21st Century Act), either the H-1B worker’s current or a former employer can have filed a labor certification application while the worker still had 365 days of H-1B status eligibility remaining or have obtained approval of an I-140 petition at any time before the end of the six years plus any recapture time. To be sure, submitting supporting documentation with the H-1B petition will be critical.

Third, while AC21 allows for post-six-year extensions until USCIS denies the labor certification application or I-140 petition, the regulation confirms that the H-1B worker remains eligible for extensions of H-1B status under AC21 while an appeal of an application or petition is pending. Additionally, the time during which an appeal may be submitted also qualifies for submitting AC21-based requests for more H-1B time.

Fourth, consistent with current practice, employers can request on one H-1B petition any recapture time plus an extension under AC21. It’s not necessary first to obtain approval of recapture time on one petition before requesting on a separate petition additional time beyond the six years under AC21. The maximum H-1B extension period that USCIS will grant for any one petition, however, remains three years.

Finally, the regulation confirms that H-1B workers whose employers are requesting extensions beyond the six-year limit based upon pending or approved labor certification applications or immigrant petitions do not need to be present in the United States to qualify for the additional H-1B time.