Expansive New Rule for Certain Employment-Based Immigrant and Nonimmigrant Visa Programs

by FordHarrison
Contact

FordHarrison

Effective yesterday, January 17, 2017, a new USCIS rule seeks to improve multiple employment-based temporary nonimmigrant and immigrant visa (“green card”) programs. The new regulations are designed to help U.S. employers hire and retain high-skilled foreign workers who are waiting to become lawful permanent residents, and to help those foreign workers continue to advance professionally even as wait times for employment-based green cards grow ever longer. The final rule clarifies and builds upon numerous longstanding USCIS policies adopted since the enactment of the American Competitiveness in the Twenty-First Century Act (AC21) in 2000 and the American Competitiveness and Workforce Improvement Act (ACWIA) in 1998.

The new rule will: 

  • Improve job portability and flexibility for some foreign workers with approved Form I-140 Immigrant Visa petitions by preserving a petition’s validity despite the filing employer’s withdrawal of the petition or the closure of the employer’s business.
  • Clarify and expand when individuals may keep their priority date when applying for adjustment of status to lawful permanent resident.
  • Create a new mandatory Supplement J to the I-485 Adjustment of Status application:
    • To confirm that the job offer from the I-140 petition is still available when the I-485 is filed, or
    • To show that another qualifying job offer exists when a foreign worker whose adjustment of status application has been pending 180 days or more seeks to change to a new job in a “same or similar occupational classification” as the job offered in the I-140 petition.
  • Allow certain high-skilled individuals in the U.S. with E-3, H-1B, H-1B1, L-1 or O-1 status to apply for employment authorization if they have an approved Form I-140 petition, their priority date is not current, and they can demonstrate compelling circumstances that justify exercise of USCIS discretion to issue a discretionary grant of employment authorization.
  • Clarify when a foreign worker may remain in H-1B status beyond the six-year authorized period of admission, including clarifying how to calculate “recaptured time.”
  • Clarify which nonprofit employers qualify to file cap-exempt H-1B petitions.
  • Clarify how and when foreign workers may take advantage of H-1B portability to change employers.
  • Allow some foreign workers to obtain H-1B status prior to obtaining a required professional license when it is impossible to receive licensure in advance of petition approval for technical reasons and provided the beneficiary will work under the supervision of qualifying licensed senior or supervisory personnel.  
  • Extend a discretionary 10-day grace period both before and after the approved period of work for foreign workers in E-1, E-2, E-3, L-1, and TN status. This discretionary grace period is already available to H-1B, O and P nonimmigrants. 
  • Establish a grace period of up to 60 days for foreign workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN status to pursue new employment when their employment ends before the end of their authorized validity period.
  • Provide an automatic 180-day extension of the employment authorization and validity of Employment Authorization Documents (EADs) for certain qualifying individuals who apply on time to renew their EADs within the same category that was the original basis for the EAD. The rule eliminates the prior regulatory requirement for a 90-day adjudication timeframe. In addition, USCIS will allow individuals in the qualifying categories to file their EAD renewal applications up to 180 days in advance of expiration as it deems appropriate and will notify the public about such advance filing eligibility on its website and possibly in the specific form instructions.
  • Allow qualifying spouses to apply to renew their own EAD concurrently with the principal spouses’ petition extension. USCIS will notify the public about a dependent’s eligibility to take advantage of concurrent filing on its website. 

Bottom Line

The new rule clarifies and finally codifies many long-standing USCIS agency policies and operating protocols. There are many nuances to the various provisions, and, in some cases, USCIS maintains discretion to extend the benefit to qualifying groups or not. Nonetheless, the rule is beneficial in that it formalizes through regulation many existing internal USCIS immigration benefit adjudication policies and provides better clarification about adjudication standards and predictability about their application. Prior to these regulations, foreign workers pursuing employment-sponsored green cards faced limitations for professional growth and mobility because the green card process was highly job- and company-specific, so changes within the employment terms/conditions stated in the green card process could have an adverse impact on the continued validity of the green card process. The new regulations are intended to provide foreign workers greater job flexibility to accept lateral positions, promotions or accommodate other job changes when they are stuck in extremely long green card backlogs and improve the ability of U.S. employers to recruit and retain high-skilled foreign talent in the U.S. despite the long backlogs.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© FordHarrison | Attorney Advertising

Written by:

FordHarrison
Contact
more
less

FordHarrison on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.