Department of Homeland Security (DHS) has published a final rule
modernizing and improving several aspects of certain employment-based nonimmigrant and immigrant visa programs. The final rule goes into effect on January 17, 2017.
The amended regulations are intended to enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents. They also improve job portability for beneficiaries of approved Immigrant Petitions for Alien Workers (Form-140) and clarify when individuals may keep their priority date when applying for permanent residence. The revised rules also benefit non-immigrant work visa holders by providing certain travel and departure flexibility.
For employment-based nonimmigrant visa holders:
10 days grace period: DHS established two grace periods of up to 10 days for visa holders in E-1, E-2, E-3, L-1, and TN status. The rule is intended to provide a reasonable amount of time for these nonimmigrant visa holders to prepare to begin employment and to depart the United States at the end of their visa validity.
60 days grace period: DHS has established a 60 consecutive days grace for E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN visa holders when their employment ends prior to the end of their authorized validity period, so they could seek alternative employment and extend their nonimmigrant status.
Automatic extension of EAD: DHS will automatically extend the validity of Employment Authorization Documents for 180 days for foreign nationals under Temporary Protected Status (TPS) if the renewal was timely filed. This will eliminate “employment authorization gap” problems for many professionals waiting for green cards on the visa backlog.
Processing time for I-765, Application for Employment Authorization: DHS is removing the 90-day processing time frame for applications for employment authorization.
For employment-base immigrant visa applicants:
Beneficiaries of approved I-140’s will be eligible to apply for EAD’s when they cannot otherwise apply for Adjustment of Status (i.e., their “green card” application) due to visa backlogs and they demonstrate “compelling circumstances” requiring employment authorization, such as:
serious illness or disability faced by the worker or dependents
employer retaliation against the nonimmigrant worker
other substantial harm to the applicant, or
significant disruption to the employer
Beneficiaries of filed I-140’s will be able to retain their priority dates, thus clarifying that they will not lose their “place in line” when changing employers or extending H-1B status under the American Competitiveness in the Twenty-First Century Act (“AC21”)
These new regulations should provide significant benefits to many foreign workers who apply their skills and expertise here in the U.S. under the extremely complex legal immigration system. Until Congress passes real, comprehensive immigration reform, these new changes to employment based U.S. immigration law will reduce at least some of the obstacles many employers and highly educated, highly skilled foreign nationals face.