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On January 18, 2017, USCIS published a new ruling designed to clarify DHS policies and “enable US employers to retain high-skilled workers.” An initial goal of the ruling is to codify DHS regulations with longstanding DHS policies and practices with the aim of improving employee portability and enhancing the employers’ ability to hire and retain employees during the immigration process. The rule adds some much needed fixes such as adding grace periods after termination and the ability to change employers during the green card process. Here are a few highlights of the new ruling, along with visual indicators of whether they make immigration laws better, worse, or the same as they were before for foreign workers.
Highlights of the new provisions and benefits outlined in the final rule include the following:
1. 10-day grace periods before and after visa periods
The final rule provides two periods of up to 10 days, like those already available to H-1B and O-1 visa holders, to E-1, E-2, E-3, L-1, and TN visas. The rule allows provides time to enter the United States and prepare to begin employment in the US. A second period of up to 10 days after the end of the expiration or termination provides time to depart or extend, change, or otherwise maintain lawful status.
2. 60-day grace periods to find additional positions if terminated
The final rule provides a grace period of up to 60 consecutive days during each authorized period for E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN visa. This period allows workers to pursue new employment or find another job if they are fired should they be eligible for other employment visas with a new employer, or change their status to another visa status.
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3. Counting against the H-1B cap
The final rule clarifies how H-1B holders are counted against the annual H-1B numerical cap, including calculating time spent outside the US, which could extend an H-1B visa and the method for determining which H-1B holders are “cap-exempt” as a result of previously being counted against the cap.
4. H-1B portability
The final rule permits H-1B workers to change jobs or employers, including: beginning employment with new H-1B employers upon the filing of non-frivolous petitions for new H-1B position and permitting H-1B employers to file successive or “bridge petitions.”
5. H-1B cap exemptions
The final rule revises to the definition of “related or affiliated nonprofit entity.” to clarify and improve the determination of whether H-1B petitions are exempt from the numerical cap due to employment at an institution of higher education, a nonprofit entity related to or affiliated with such an institution, or a governmental or nonprofit research organization.
6. Protections for H-1B whistleblowers
The final rule provides protection to H-1B visa holders who provide information to investigations regarding violations of Labor Condition Application (LCA) to demonstrate that their failure to maintain H-1B status was due to “extraordinary circumstances.”
7. H-1B with temporary licenses
The final rule allows for the temporary approval of an H-1B petition for an otherwise eligible unlicensed worker, if the petitioner can demonstrate that the beneficiary is unable to obtain the license before obtaining H-1B status. The final rule also clarifies the types of evidence to support approval of an H-1B petition on behalf of an unlicensed worker.
8. H-1B extensions under AC21
The final rule grants H-1B visa holders who are being sponsored for permanent residency (Green Card) status, and their dependents, to extend their H-1B ivisas beyyond the otherwise applicable 6-year limit pursuant to AC21.
9. Green Card portability
The final rule permits certain Green Card beneficiaries with I-140 Petitions that have been approved for more than 180 days to change employers or jobs during the the process.
10. Form I-140 petition validity
The final rule clarifies the circumstances under which an approved Immigrant Petition for Alien Worker (Form I-140 petition) remains valid, even after the petitioner withdraws the petition or the petitioner’s business terminates, including for purposes of status extension applications filed on behalf of the beneficiary, job portability of H-1B nonimmigrants, and job portability under section 204(j) of the Immigration and Nationality Act (INA).
11. Establishment of priority dates
The final rule is consistent with existing DHS practice in establishing priority dates for EB-1 category.
12. Retention of priority dates
The final rule permits workers to retain priority dates from previously approved Form I-140 petitions. Priority date retention is available as long as the approval of the initial Form I-140 petition was not revoked for fraud, willful misrepresentation of a material fact, the invalidation or revocation of a labor certification, or material error. Permits workers to accept promotions, change employers, or pursue other employment opportunities without losing their place in line for immigrant visas.
13. Retention of employment-based immigrant visa petitions
The final rule provides that Form I-140 petitions for EB-1,2 and 3 Green Card Petitions that have been approved for 180 days or more would no longer be subject to automatic revocation based solely on withdrawal by the petitioner or the termination of the petitioner’s business.
14. Eligibility for employment authorization in compelling circumstances
The final rule allows beneficiaries of E-3, H- 1B, H-1B1, L-1, or O-1 visas to apply for separate employment authorization for a limited period if there are compelling circumstances that, in the discretion of DHS, justify the issuance of employment authorization.
15. Adjudication of EADs
Although he final rule states USCIS will no longer be bound to adjudicate Employment Authorization Document (“EAD”) applications within 90 days. To compensate for this USCIS permits renewal filings up to 180 days before the expiration of the EAD, rather than the current 120 day policy. USCIS indicates it will update filing time periods for renewal applications on its website. Most Importantly, USCIS will grant an automatic EAD extension of up to 180 days based on a timely filed, pending EAD renewal under the same eligibility category.
16. Form I-485 Supplement J
To continue receiving eligibility for adjustment of status based on an existing or new job offer under INA 204(j), the worker is required to file a Form I-485 Supplement J and submit evidence regarding the new job offer for continued AOS eligibility, if requested by USCIS, or alternatively may proactively provide this information.
For full text of the new rule, visit FederalRegister.gov.