New USCIS Regulations on Employment-Based Applications.

USCIS has published a final rule to modernize and improve several aspects of certain employment-based nonimmigrant and immigrant visa programs. The proposed rules were discussed in an earlier blog post.

​USCIS has also amended regulations to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa  (green card) petitions and are waiting to become lawful permanent residents. This rule goes into effect on Jan. 17, 2017.

DHS states that the amended regulations should:

• Clarify and improve longstanding 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, which will enhance USCIS’ consistency in adjudication. 
• Better enable U.S. employers to employ and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions (Form I-140 petitions) while also providing stability and job flexibility to these workers. The rule increases the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers and pursuing other employment opportunities.
• ​Improve job portability for certain beneficiaries of approved Form I-140 petitions 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.
• Clarify and expand when individuals may keep their priority date when applying for adjustment of status to lawful permanent residence.

Specifically, the regulations provide for the following.

​Employment Authorization Documents (EADs)

• EADs will be automatically extended for 180 days once an extension application has been timely filed. This does not apply to EADs issued to H-4, L-2 or E spouses.
• USCIS has eliminated the (long-ignored) mandatory 90-day processing time for EAD applications.
• EAD renewals can be filed up to 180 days  before the EAD expiration date. Up to now, renewals could not be filed more than 120 days in advance.
• E-3, H-1B, H-1B1, L-1 and O-1 visa holders can apply for an EAD if they have an approved I-140, their priority date is backlogged, and they can show compelling reasons for the EAD, e.g. medical emergency. or significant disruption to the employer.

​
Nonimmigrant Changes

1. There is a new grace period of up to 60 days at the end of employment for some holders of E, L, H and TN visa, where employment ends before the end date of the petition. These foreign nationals can remain in the US, but cannot work during the grace period.
2. There will also be a grace period of 10 days at the beginning and end of a TN, E and L-1 petition's validity, allowing the foreign national to enter the US 10 days before the job starts, and remain for 10 days at the end.

H-1B Changes

1. H-1B applicants whose occupation requires a license may apply if the license application has been filed but not approved for technical reasons (e.g. lack of Social Security Number).
2. The definition of entities that are eligible to file H-1B cap-exempt has been expanded, slightly.
3. ​People who are not currently in H-1B status, but who have had it in the past, may be eligible for post-sixth year "extensions".
4. ​Post-sixth year extensions are available once the permanent residence (PR) has been filed 365 days before the new H-1B start date. Previously, the PR had to have been filed 365 days before the end of the 6th year, i.e. filed before the end of the 5th year.
5. Post-sixth year extensions are not available to nonimmigrants if

• they do not file the final permanent residence within one year of being eligible; or
• the permanent residence has been denied or approved.
  

​Permanent Residence Applicants

1. AC21 Portability. Foreign nationals who are pursuing permanent residence can already change jobs if (a) their  Adjustment of Status application (Form I-485) has been pending for 180 days or more, and (b) the new position is in the "same or similar" occupational classification. The new regulations clarify the meaning of "same or similar".
2. The regulations state that an I-140 cannot be revoked if it has been approved for 180 days or more, unless there is evidence of fraud, misrepresentation, etc. in the filing. USCIS is proposing a new addendum to the Form I-485 to be filed in cases of a job change.

There is a lot of information in the new rules, so please contact Elaine Martin if you have any questions about how these affect you or your employees.


USCIS Press Release
​Final Rule

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