The Final Rule Will Enhance The USCIS’ Consistency In Adjudicating Cases

On November 18, 2016, a final rule for certain employment-based immigrant and nonimmigrant visa programs was published by the USCIS. While many of the new policies have already been longstanding practices of the agency, the new rule codifies policies established by the American Competitiveness and Workforce Improvement Act of 1998 and the American Competitiveness in the Twenty-first Century Act of 2000. The new rule, which went into effect on January 17, 2017, will help modernize and improve aspects of employment-based visa programs. The new provisions are not retroactive and will only be applied to cases beginning January 17th.

This New Rule Will Help Alleviate The Process Of Foreign Nationals Seeking To Change Positions With Current Employers Or Pursue Other Employment Opportunities

The final rule provides clarity to a lot of the prior uncertainty of whether beneficiaries of approved I-140 petitions retain their priority date if they change employers. The rule provides more job security to employees as it specifies that I-140 petitions that have been approved for 180 days or more will not be automatically revoked by a business closure or a petition withdrawal by the employer. It enhances a foreign national’s job portability during the period that he or she is applying to become lawful permanent residence, by allowing flexibility to move positions within a company, change employers, or purse alternative employment opportunities. An individual who is adjusting his or her status is required to submit proof of job authenticity on a new the Form I-485 Supplement J.  An approved I-140 is subject to revocation if it is found to contain fraudulent information or misrepresentations.

Employment Authorization Opportunities For Individuals With “Compelling Circumstances”

Under the discretion of the Department of Homeland Security, individuals can qualify for an EAD if they hold a E3, H1-B, H1-B1, O1, or L1 visa, are the principal beneficiary of an approved I-140, show that there is a backlog of immigrant visa on the application filing date, and demonstrate “compelling circumstances.” Although a focal point of the new rule, compelling circumstances are not fully defined and will be evaluated on a case-by-case basis by the USCIS. Loose guidelines include serious illness or disability to the worker or a dependent, employer dispute or retaliation, substantial harm to the applicant, and significant disruptions to the employer. The USCIS also updated filing time periods for renewal applications allow. The new rule allows foreign nationals to file renewal request 180 days prior to the expiration of their current card (an substantial increase from the previous 120 days). This will compensate for eliminating the requirement for the agency to process EADs within 90 days.

USCIS Established New Grace Periods To Give An Individual More Time To Leave The US 

With the addition of a 60-day grace period for workers holding an E1, E2, E3, H1-B, H1-B1, L1 or TN visa following their loss of employment, the USCIS is providing an opportunity for foreign nationals to pursue new employment and an extension of their nonimmigrant status. Additionally, two-grace period of up to 10 days have been granted to individuals in the E1, E2, E3 L1, and TN classifications. The additional 10 days leading up to the start of authorized visa validity will allow a person reasonable time to organize their stay in the US and prepare them to begin employment, while the 10 days following the end of their visa validity creates ample time to depart from the U.S.

New Rule Focuses A Lot Of Attention To H1-B Visas

The new rule creates a system that allows a H1-B worker to recapture time spent physically outside of the U.S anytime prior to the worker staying his or her full period of six years. It creates an opportunity for individuals who have held H-1B status extended stay based on a pending labor certification or a filed I-140 petition at least I year before the start date requested. If an immigrant worker is in H1-B status or timely filed for an H1-B extension they are eligible to change jobs or employers. This portability eligibility continues until the H1-B application is adjudicated. In cases of employer retaliation based on reporting a violation of the employer’s obligations under the labor condition application, workers will be provided whistleblower protection. H1-B classification can be granted for positions that typically require a license if a person proves he or she can fully perform the job under the supervision of a licensed supervisor or his or her failure to obtain a license is due to inability to meet technical requirements, such as not having a Social Security number. Lastly, a nonprofit organization affiliated to qualifying universities may qualify for cap and ACWIA fee exemptions.

Interested in finding out more? This D’Alessio Law Group blog is here to educate our readers on all work visa topics but we understand that sometimes this can create more questions. We can guide you through the steps you need to take in order to be informed about your visa options. Give our office a call at (310) 909-3934 or e-mail for more information so we can book you a consultation with one of our attorneys!


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