USCIS Publishes Final Rule For Certain Employment-Based Immigrant and Nonimmigrant Visa Programs

by Joseph McKeown

US Citizenship & Immigration Services (USCIS) has published a final rule to “modernize and improve” certain aspects of some employment-based nonimmigrant and immigrant visa programs. Proposed earlier this year, USCIS says these amended regulations will better “enable US employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents.” The new rule is scheduled to go into effect on January 17, 2017. We will be discussing these changes, some of which are quite complex, in depth in a later post. In the meantime, however, here is a summary of the highlights.

The new rule will:

  • Establish two grace periods of up to ten days each for individuals in the E-1, E-2, E-3, L-1, and TN nonimmigrant classifications to provide “a reasonable amount of time” for them to prepare to begin employment in the US and afterwards to depart the country or take actions to extend, change, or otherwise maintain lawful status. Similar grace periods are currently available to individuals with H-1B, O, and P classification, and extending a similar grace period will promote “stability and flexibility” for highly-skilled workers;
  • Establish a grace period available to certain individuals (and their dependents) in high-skilled nonimmigrant classifications, including H-1B, H-1B1, O-1, E-1, E-2, E-3, L-1, and TN classifications, for up to sixty consecutive days during each period of petition validity (or other authorized validity period) when their work ceases. This grace period will enable these nonimmigrant workers to seek new nonimmigrant employment and extend or change their nonimmigrant status while remaining in the US;
  • Clarify and expand when individuals may keep their priority date when applying for adjustment of status to lawful permanent residence;
  • Streamline the processes for employer sponsorship of nonimmigrant workers for lawful permanent resident (LPR) status, increase job portability, and provide stability and flexibility for workers to better enable US employers to employ and retain highly-skilled workers who are beneficiaries of an employment-based immigrant visa (Form I-140) petitions, also while allowing these workers to accept promotions, change positions within the same company, change employers, and seek other employment;
  • Improve job portability for certain approved I-140 beneficiaries by maintaining a petition’s validity under certain circumstances “despite an employer’s withdrawal of the approved petition or the termination of the employer’s business."
  • Allow certain high-skilled individuals in the US under E-3, H-1B, H-1B1, L-1 or O-1 nonimmigrant status, including any applicable grace period, to apply for employment authorization if:
    • They are the principal beneficiaries of an approved I-140 petition;
    • An immigrant visa is not authorized for issuance for their priority date; and
    • They can demonstrate that there are “compelling circumstances” to justify DHS issuing an EAD card in its discretion;
  • Clarify various policies and procedures related to the adjudication of H-1B petitions, including providing H-1B status beyond the standard six year period of admission, determining cap exemptions, counting workers under the H-1B cap, portability, licensure requirements, and protections for whistleblowers; and
  • Clarify and improve DHS policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act related to certain foreign workers in order to enhance USCIS’ consistency in adjudication.

Importantly, the final rule will automatically extend the employment authorization and validity of employment authorization documents (EADs or Form I-766s) for certain individuals who apply on time to renew their EADs, sure to be welcome news for EAD holders. Closely-related, the rule would also eliminate the regulatory provision that requires USCIS to adjudicate the application for employment application within ninety days of filing and that authorizes interim EADs in cases where such adjudications are not conducted within the ninety-day timeframe. As mentioned, a more thorough and in-depth review of these changes are forthcoming on this blog. Stay tuned.