Department of Homeland Security Issues Final Rule - Expect Changes to Some Aspects of Employment-Based Visa Programs

Published on November 22, 2016

On November 19, 2016, the U.S. Department of Homeland Security published the final regulation, “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers,” that will change certain aspects of employment-based visa programs. The rule will provide a number of benefits for foreign nationals on temporary visas and greater job flexibility during the employment-based green card process. The final rule will take effect on January 17, 2017, and the full regulation can be found here.

• Once an I-140 petition has been approved for 180 days or more, USCIS will not revoke the I-140 petition other than in cases of fraud, misrepresentation, or a few other limited situations. While the I-140 petition still could not be transferred to a new employer, it could nevertheless be used for purposes of extending one’s H-1B status beyond the 6-year limit, even if the employer requests withdrawal of the I-140 petition. The I-140 petition will continue to be valid for the purposes of retention of priority date and job portability.

• Certain nonimmigrant workers and their dependents will be eligible for a one-time grace period when their employment ends. The grace period would be for up to 60 days, or until the existing validity period ends, whichever occurs first. This will allow such workers the opportunity to seek new employment and/or apply for a change of status or prepare to depart the U.S. This grace period will only apply one time per authorized nonimmigrant validity period.

• The rule establishes two grace periods of 10 days for certain nonimmigrants, which is presently available only to H-1B workers. The nonimmigrant worker would have 10 days before the petition validity period (or other authorized validity period) and 10 days after the end of the validity period to remain in the U.S.

• Automatic renewal of an employment authorization document (EAD) for up to 180 days in certain situations based on a pending renewal application. Those who have an EAD based on a pending adjustment of status application will be potentially eligible for this benefit. Unfortunately, this rule will not apply to certain EAD recipients, including dependent spouses in H-4, L-2, or E status seeking EAD renewal. Additionally, the 90-day processing period for EADs will no longer apply.

• In extremely limited circumstances, the beneficiary of an I-140 petition, and the individual’s dependent family members may be eligible to apply for employment authorization. To qualify: (1) the individual must be currently in the United States and maintaining E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status; (2) the individual must be the beneficiary of an approved immigrant visa petition under the EB-1, EB-2 or EB-3 classification. The beneficiary may seek renewals of this employment authorization in one-year increments if (1) he or she continues to face compelling circumstances and establishes that an immigrant visa number is unavailable based on the Final Action Date of the visa bulletin in effect on the date the renewal application is filed; or (2) the difference between his or her priority date and the Final Action Date is one year or less.

Please be sure to contact our Immigration Group with questions.