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

by 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.

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