Summary of Final Rule for Employment-Based Visa Programs Issued by USCIS on November 18, 2016

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USCIS recently issued a Final Rule on its employment-based immigrant and non-immigrant visa programs.  The Final Rule becomes effective on January 17, 2017.  Here are some highlights of the final rule for employers and foreign nationals:

1. Priority Dates

Clarified that priority dates are issued at the time it was properly filed. Also indicates that for retention of priority dates from EB-1, EB-2 or EB-3 petitions, employees may now use previously issued priority dates for porting to another employer. Finally, priority dates cannot be transferred to other individuals.

2. Employment Authorization

Employees in E-3, H-1B, H-1B1, O-1 and L-1 nonimmigrant status with an approved EB-1, EB-2 or EB-3 I-140 petition may request employment authorization for up to one year, if the priority date is not current, under compelling cases. Spouses and children may also apply. Renewals may also be permitted for both the principal employee and his/her family members.

3. Revocations

Approved I-140 petitions will no longer be automatically revoked by USCIS based on a withdrawal from the Petitioner, if the I-140 has been approved for 180 days or more. So long as there was no fraud, material misrepresentation or other invalidating purposes, the approved I-140 petition will be valid for job portability, retention of priority dates and extensions under AC21.

4. Grace Periods

E-1, E-2, E-3, H-1B, L-1, and TN nationals and their dependents now get a 10-day grace period. For those holding E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN status whose employment has ended, they may receive a grace period of up to 60 days.

5. Licensure

For those H-1B applicants stuck in a catch-22 who cannot obtain a license to engage in the relevant occupation because of a lack of social security number or work authorization, DHS will issue the H-1B petition for up to one-year to facilitate the licensure rule.

6. H-1B Cap Exempt Employers

Clear definition for which organizations qualify as an “institution of higher education” and “related or affiliated nonprofit entity.”

7. H-1B Extensions based on AC21

Employees may request an extension beyond the six years of H-1B, in one-year increments, if the underlying labor certification application or employment-based immigrant visa petition has been pending for more than one-year. Extension requests may be submitted six-months in advance of the start date. The employee must file for their greencard applications within one year from the date the priority date is current, or they risk losing the ability to seek future H-1B extensions in one-year increments. Employees need not be in H-1B status to be eligible for extending their H-1B for three additional years beyond the six years.

8. Retaliation

For employees who reported LCA violations and switched employers, the new employer may attach documentation of these extraordinary circumstances to mitigate failure by the employee to maintain status at the prior job.

9. Proof of Valid Job Offer

All greencard applicants with an approved I-140 petition must prove their job offer is valid and pending at the time the application is reviewed by a USCIS officer.

10. EAD Automatic Extensions

Applicants of timely filed extensions for EADs requesting the same EAD category, unencumbered by other dependent status petitions or applications, will receive an automatic extension of their EADs for 180 days from the date of the initial EAD expiration. If the EAD application is denied, the 180 days is terminated. USCIS will issue a Notice of Action (Form I-797) granting an additional 180 days employment authorization. This document, along with the expired EAD, may be used as proof of work authorization for Form I- 9 employment verification. Employers should reverify upon expiration of the 180 days. USCIS will no longer be bound by the rule to issue EADs within 90 days.

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The above summary is for educational purposes only and is not intended to be legal advice. Please be sure to touch base with an experienced immigration attorney for a discussion as to how the new rules may impact you or your company. Subscribe to our blog for more updates and articles!

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