USCIS Updates Employment-Based Visa Regulations

USCIS published a Final Rule in the Federal Register on November 18, 2016 implementing a number of provisions proposed at the end of 2015. USCIS described the stated goal of the rule changes as follows:

“These changes are primarily intended to better enable U.S. employers to employ and retain high-skilled workers who are beneficiaries of employment-based immigrant visa (Form I-140) petitions, while increasing the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers, and pursuing other employment opportunities.”

The most important provisions of the new regulations are set forth below.

Retention of I-140 Priority Dates

The Beneficiary of an approved I-140 Visa Petition is entitled to retain the Priority Date in connection with a future I-140 in any employment category regardless of how much time has passed since the Petition was approved, unless the Petition was revoked for fraud, misrepresentation, or “material error.”

Retention of I-140 Petition Approval

In addition to retaining the Priority Date, the Petition remains approved despite withdrawal by the Petitioner or termination of the Petitioner’s business, if the withdrawal or termination of the Petitioner’ business occurs more than 180 days after the Petition was approved OR more than 180 days after an I-485 Adjustment of Status has been filed.

Employment Authorization (EAD) based on compelling circumstances

An EAD valid for one year may be available for the Beneficiary of an approved I-140 and family members if (1) the applicant is in E-3, H-1B, H-1B1, O-1 or L-1 status (2) there is no visa number available and (3) the applicant can show “compelling” circumstances.” While not defined, some examples provided include serious illness or disability, employer dispute or retaliation, serious harm to the applicant, and substantial disruption to the employer.

Applicants granted an EAD based on compelling circumstances will not be maintaining nonimmigrant status and will therefore generally be ineligible for Adjustment of Status. However, they will not accrue unlawful presence while remaining in the US and working with the EAD.

Automatic Extension of Expiring EADs

An application to extend an EAD may be filed up to 180 days prior to expiration. For certain nonimmigrant classifications, the EAD is automatically extended for up to 180 days beyond the stated expiration date provided a request for extension is timely filed. Unfortunately, this provision does not extend to all classes of foreign nationals who are eligible for EADs, including L-2 spouses and qualifying H-4 spouses. NOTE: DHS has eliminated the requirement that the USCIS adjudicate I-765 EAD applications within 90 days.

Supplement J to I-485

This new form will be required to confirm existence of a valid job offer if claiming I-485 portability, and can also be requested by the adjudicator to confirm the original I-140 job. This form will solicit very specific information about the job offer and the employer to insure that the offered position is consistent with the original approval.

H-1B Visa Status

The Beneficiary of an H-1B Petition may start work with a new Petitioner if a new H-1B Petition is filed while maintaining H status, OR while a timely filed Petition Extension is pending.

An extension of stay beyond the normal six year limitation in one year increments is available if a Labor Certification or I-140 Visa Petition is filed at least 365 days prior to the start date requested in the petition, even if that date is less than 365 days before the 6 year limitation is reached.

An extension of stay beyond the normal six year limitation in three year increments is available for H-1B workers who are the beneficiaries of an approved I-140 Petition and for whom, at the time the H-1B extension is requested, an immigrant visa number is not available due to per country limitations.

A position requiring state licensing may be approved without the license if the job duties can be fully performed under the supervision of a licensed professional OR failure to obtain a license is due to technical reasons such as lack of a Social Security number or employment authorization.

A Beneficiary counted under the H-1B cap may recapture any time spent outside the US in order to utilize the full 6 years available.

A Beneficiary counted under the H-1B cap who is absent from the U.S. for more than one year has the option to recapture time remaining within the six year limit without being subject to the cap. The Beneficiary also has option to seek a new 6 year period of stay by subjecting to the cap.

Grace Periods for Nonimmigrant Workers

A 10 day grace period allowed for E-1, E-2, E-3, L-1, and TN before and after their authorized period of stay. This is the same as the existing rule for H-1B, O-1, and P status.

A 60 day grace period for E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN is provided upon termination of employment. This is limited to one 60 day period per authorized validity of underlying petition.