New Rule Provides a Variety of Benefits and Obligations to Employment-Based Immigrants and Nonimmigrants

A new rule will go into effect on January 17, 2017 that aims to amend the Department of Homeland Security’s regulations for certain employment-based immigrant and nonimmigrant visa programs.

A new rule published in the Federal Register on November 18, 2016 aims to amend the Department of Homeland Security’s regulations for certain employment-based immigrant and nonimmigrant visa programs. The rule, titled “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers,” will become final on January 17, 2017, and will clarify prior regulations while granting new benefits to immigrant and nonimmigrant beneficiaries and their family members. The rule’s provisions will enhance and clarify a number of provisions affecting H-1B employees and beneficiaries of I-140 immigrant visa petitions, including:

  • Certain nonimmigrant principal beneficiaries (specifically, those in E-3, H-1B,         H-1B1, L-1, or O-1 status), and their dependent spouses and children, will be eligible to apply for employment authorization if the principal applicant’s approved I-140 is subject to an immigrant visa backlog, provided that the applicants demonstrate “compelling circumstances”. Although the rule does not define “compelling circumstances” and describes it as a “case-by-case” determination, DHS lists several examples, such as:
    • Serious illness or disability faced by the nonimmigrant worker or his or her dependent;
    • Employer retaliation against the nonimmigrant worker;
    • Other substantial harm to the applicant;
    • Significant disruption to the employer.

The grant of employment authorization will be valid for one year, and may be extended if  the applicant continues to face compelling circumstances and the approved I-140      continues to be subject to an immigrant visa backlog.

  • The rule also eliminates the regulatory requirement for 90-day adjudication timeframe and issuance of interim EADs and replaces it with a provision allowing for the automatic extension of EADs for up to 180 days for certain workers filing timely renewal requests.
  • Certain workers with approved Form I-140 petitions in the EB-1, EB-2, and EB-3 categories who are subject to visa backlogs will no longer be subject to automatic revocation based on the petitioner’s withdrawal or termination of their business, provided that the petition has been approved for 180 days or more, or 180 days or more after the associated application for adjustment of status has been filed. The approved I-140 may only be used for portability purposes if an adjustment of status application has not been filed.
  • Workers may also retain their priority dates from previously approved Form I-140 petitions, and transfer those dates to new and subsequently approved I-140 petitions, except when USCIS revokes approval of the petition for material error, fraud, or willful misrepresentation of a material fact, or revocation of the underlying Labor Certification.
  • USCIS will now determine a worker’s ability to “port” to a new employer by virtue of an approved I-140 petition through a new form, Supplement J to Form I-485, Confirmation of Bona Fide Job Offer or Request for Job Portability under INA Section 204(j). Supplement J will assist USCIS in confirming that the job offer described in the I-140 is still available at the time of filing for adjustment of status, as well as determining eligibility for job portability for a new offer of employment in a “same or similar” occupational classification as the approved I-140.
  • Allowing certain nonimmigrants (specifically, those holding E-1, E-2, E-3, L-1, or TN status) a grace period of up to 10 days before and after their validity period, and a grace period upon cessation of employment on which the foreign national’s classification was based, for up to 60 days or until the end of their authorized validity period. This will allow them to maintain nonimmigrant status when faced with termination of employment to wrap up affairs, find new employment, or change to a different nonimmigrant classification without potentially accruing unlawful presence.

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