The U.S. Citizenship and Immigration Services (USCIS) published a final rule that would positively impact certain employment-based nonimmigrants by providing them greater employment flexibility, which would also benefit their families. The provisions of this rule will take effect on January 17, 2017.
Aside from confirming some of the provisions of the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act (AC21) that relates to foreign workers, below are some of the notable changes in the final rule.
Retention of priority dates
The final rule clarifies that priority dates can be retained as long as the approval of the initial Form I-140 petition was not revoked for fraud, willful misrepresentation of a material fact,the invalidation or revocation of a labor certification or material error.
Retention of employment-based immigrant visa petitions
Under the final rule, Form I–140 petitions that have been approved for 180 days or more would no longer be subject to automatic revocation based solely on the withdrawal by the petitioner or the termination of the petitioner’s business. This will enhance job portability for individuals with an approved I-140 petition who are not able to adjust their status to permanent resident due to visa backlogs.
Eligibility for employment authorization in compelling circumstances
The final rule will allow certain nonimmigrants (and their family members) to apply for separate employment authorization in order to avoid difficult employment situations, such as having to leave the country due to visa backlogs. In order to obtain this type of employment authorization, the individual must:
- be in the United States in E–3, H–1B, H–1B1, O–1, or L–1 nonimmigrant status, including in any applicable grace period, on the date the application for employment authorization is filed;
- be the principal beneficiary of an approved Form I–140 petition;
- establish that an immigrant visa is not authorized for issuance based on his or her priority date, preference category, and country of chargeability according to the Final Action Date in effect on the date the application is filed; and
- demonstrate compelling circumstances that justify the exercise of USCIS discretion to issue an independent grant of employment authorization.
The validity period of compelling circumstances employment authorization is limited to one (1) year and may be renewed in 1-year increments.
Automatic extension of EAD validity
The final rule will also automatically extend the validity of existing EAD’s (Employment Authorization Document), issued to certain employment-eligible individuals, for up to 180 days from the date of expiration. USCIS requires that:
- the renewal application is filed based on the same employment authorization category as the previously issued EAD;
- the renewal application is timely filed prior to the expiration of the EAD; and
- the individual’s eligibility for employment authorization continues beyond the expiration of the EAD and an independent adjudication of the underlying eligibility is not a prerequisite to the extension of the employment authorization.
10-day nonimmigrant grace periods
Currently, only nonimmigrants in H-1B, O, and P classifications are afforded with this “10-10” grace period — 10 days before the petition validity period begins and up to 10 days after the authorized validity period ends. Under the final rule, the 10-day grace period will extend to nonimmigrants in E-1, E-2, E-3, L-1 and TN classifications.
60-day nonimmigrant grace periods
In addition to extending the availability of 10-day grace periods, the new rule adds up to 60 consecutive days grace period for each authorized validity period for certain high-skilled nonimmigrants even when their employment ends before their authorized validity period so that they may more readily pursue new employment or an extension of status. This applies to individuals (and family members) in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classifications. In sum, during the grace period, these nonimmigrant may change employment, change nonimmigrant status or extend their status while in the United States.