USCIS has announced the publication of new rules, to take effect January 17, 2017.
In general, the new rules will establish grace periods for non-immigrant workers before and after their employment, and provides automatic work authorization extensions to adjustment applicants and certain other classes of foreign nationals who have timely filed for renewal of an employment authorization document (EAD).
The new regulation helps ease the impact of an I-140 revocation as follows:
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A foreign national whose I-140 petition has been approved for 180 days or more will not have the petition automatically revoked if the employer goes out of business or withdraws the petition. However, the foreign national will need a new job offer or a new I-140 petition to obtain employment-based permanent residence.
An I-140 beneficiary whose petition is revoked will be able to use the priority date for a later I-140 petition, unless the reason for revocation was fraud, material misrepresentation, invalidation or revocation of the underlying labor certification or material USCIS error.
Finally, as has been the policy for many years, the beneficiary of a pending I-140 will be able to port or change to new employment after his or her adjustment of status application has been pending for 180 days or more, as long as the pending I-140 petition was approvable when filed and remained approvable for 180 days after the filing of the adjustment application.
New Employment Authorization Rule
The regulation allows E-3, H-1B, H-1B1, L-1 and O-1nonimmigrants with an approved I-140 petition to apply for a one-year employment authorization document if their priority date is backlogged, in other words, their number is not currently available AND they can show compelling circumstances – such as a medical emergency or significant disruption to the employer – to justify the need for employment authorization. It is unclear at this point how the term “compelling circumstances” will be defined under the new rules.
New Grace Periods
If the foreign national possesses an E, H-1B, H-1B1, L-1, O-1 and TN visa and their employment is terminated early, they will be given one grace period of up to 60 days during each validity period, to allow them to extend, change or otherwise maintain status or, in the H-1B context, to port or change to new employment.
E, L-1 and TN visa holders will get a 10-day grace period before and after their validity period, as is the case currently H-1B nonimmigrants. They will be able to enter the United States 10 days before their start date to prepare for employment, and will have 10 days at the end of their period of stay to extend or change status, or prepare to leave The United States.
Employment is not authorized during the grace periods, except for H-1B foreign nationals who are porting or changing to new employment.
H-1B Extensions Beyond the Sixth Year
As has been the case for many years, 7th year and post 7th year extensions will be available to foreign nationals who are not currently in H-1B status, as long as they previously held that status and remain eligible for an additional period of H-1B admission. However, the new rule states that if the H-1b visa holder does NOT apply for adjustment of status or an immigrant visa within one year of the date an immigrant visa becomes available to him or her, they will NOT be able to extend.
The new rules all include:
A one-year post-sixth year H-1B extension will cease to be available if, at the time the extension is filed, the applicant’s labor certification is no longer valid, or the visa holder’s I-140 has been denied or revoked or an adjustment application or an immigrant visa has been approved or denied.
An H-1B visa holder whose approved I-140 petition was withdrawn 180 days or more after approval will remain eligible for a three-year extension unless the I-140 was withdrawn for fraud, material misrepresentation, material USCIS error, or revocation or invalidation of the underlying labor certification.
Further, the regulation offers an automatic 180-day work authorization extension to certain foreign nationals who timely file for EAD renewal, including adjustment applicants, The automatic extension will not be available to H-4, L-2 or E nonimmigrant spouses seeking renewal of employment authorization.
The new regulation eliminates a rule that required USCIS to process EAD applications within 90 days and grant interim work authorization to those with an EAD application pending for more than 90 days. The government has not been following these rules anyway in recent years. It will accept EAD renewals up to 6 months prior to the expiration of an EAD as well.
Interestingly, this new rule will take effect just days before President-Elect Donald Trump takes office, and we don’t currently have any indication as to whether the new administration will seek to make changes or withdraw the regulation. However, any action would not be immediate as a change would requir