USCIS has announced major changes to employment based non immigrant and immigrant visa programs for E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classification workers, aimed at improving the ability of U.S. employers to hire and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents, while increasing the ability of those workers to seek promotions, change employers, or pursue other employment options. In its Final Rule published on November 18, 2016, which will be effective from January 17, 2017, USCIS made several changes, significant amongst these are as follows:
Retention of priority dates: Workers with approved Form I-140 petitions, will generally be allowed to retain their priority date as long as the approval of the initial Form I-140 petition was not revoked for fraud, willful misrepresentation of a material fact, the invalidation or revocation of a labor certification, or material error. The final rule provides that Form I-140 petitions that have been approved for 180 days or more would no longer be subject to automatic revocation based solely on withdrawal by the petitioner or the termination of the petitioner’s business.
60-day nonimmigrant grace periods: To further enhance job portability, the final rule establishes a grace period of up to 60 consecutive days for the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classification workers, which will allow these high-skilled workers, including those whose employment ceases prior to the end of the petition validity period, to have their visa transferred to a new employer in the same visa classification.
10-day nonimmigrant grace periods: To promote stability and flexibility for the E-1, E-2, E-3, L-1, and TN classifications workers, the final rule provides two grace periods of up to 10 days, to allow an initial grace period of up to 10 days prior to the start of an authorized validity period, which provides nonimmigrants in the above classifications a reasonable amount of time to enter the United States and prepare to begin employment in the country. The rule also allows a second grace period of up to 10 days after the end of an authorized validity period, which provides a reasonable amount of time for such nonimmigrants to depart the United States or take other actions to extend, change, or otherwise maintain lawful status.
H-1B based on licensing: Where licensure is required to fully perform the duties of the relevant specialty occupation, the final regulations codify current DHS policy regarding exceptions to the requirement that makes the approval of an H-1B petition contingent upon the beneficiary’s licensure The final rule will generally allow for the temporary approval of an H-1B petition for an otherwise eligible unlicensed worker, if the petitioner can demonstrate that the worker is unable for certain technical reasons to obtain the required license before obtaining H-1B status. The final rule also clarifies the types of evidence that would need to be submitted to support approval of an H-1B petition on behalf of an unlicensed worker who will work in a state that allows the individual to be employed in the relevant occupation under the supervision of licensed senior or supervisory personnel
EAD – Employment Authorization Document : The rule automatically extends the employment authorization and validity of existing EADs issued to certain employment-eligible individuals for up to 180 days from the date of expiration, as long as a renewal application is filed before the expiry of previous EAD based on the same employment authorization category as the previously issued EAD (or the renewal application is for an individual approved for Temporary Protected Status -TPS) and the individual continues to be eligible for EAD beyond the expiration of the EAD.
Simultaneously the Federal Rule has eliminated the regulatory provision that requires USCIS to adjudicate the Form I-765, Application for Employment Authorization, within 90 days of filing and that authorizes interim EADs in cases where such adjudications are not conducted within the 90-day timeframe.
The final rule also clarifies method for determining which H-1B nonimmigrant workers are “cap-exempt” as a result of previously being counted against the cap and the way in which H-1B nonimmigrant workers are counted against the annual H-1B numerical cap, including the method for calculating when these workers may access so-called remainder time (i.e., time when they were physically outside the United States), thus allowing them to use their full period of H-1B admission.
Full text of the USCIS announcement in Federal Register is available at
https://www.gpo.gov/fdsys/pkg/FR-2016-11-18/html/2016-27540.htm
Bhatia & Co., Inc 