New Rules for Employment Immigration 11/25/2016
Posted on November 25, 2016
US Citizenship and Immigration Services (USCIS) announced a set of new rules touching on employment Immigration that goes into effect on January 17, 2017.
There are several major and useful changes:
- No Automatic Revocation of Certain Employment-Based Immigrant Petitions:
An employment-based immigrant petition will not be automatically revoked if it is withdrawn by the employer, or if the employer’s business is terminated more than 180 days following its approval, or when an associated with an I-485 adjustment of status application that has been pending for more than 180 days. To adjust status or qualify to transfer the approved immigrant visa under the immigrant visa portability rule, the applicant would still have to obtain a new approved immigrant visa.
- Grace Periods for E, H-1B, L-1 and TN Classifications:
There will now be a mandatory 10-day grace period for these categories before the petition or status begins, as well as a 10-day grace period after the petition or status ends. Foreign nationals in these classifications will be able to enter the US up to 10 days before their status is due to begin, and they can leave up to 10 days after it expires.
- Grace Period After Ending of Employment for E, H-1B, H-1B1, L-1, O-1 and TN Classifications
Persons in these classifications and their dependents will be entitled to a 60-day grace period following the termination of employment, provided their authorized stay is valid for at least 60 days after such cessation. If not, the grace period will end on the date the authorized date is set to expire.
- New Employment Authorization Document (EAD) Category:
Both persons in these classifications, and their dependents in E-3, H-1B, H-1B1, O-1 or L-1 status (or in one of the new grace periods, either before or after entry), will be able to apply for discretionary work authorization, where “compelling circumstances” exist. To be eligible the applicant must also have an approved I-140 immigrant petition in the EB-1, EB-2 or EB-3 categories for which the priority date is backlogged.
- Automatic Renewal of Work Authorization Upon Filing EAD Renewal Application:
Upon filing an EAD renewal in the same category, work authorization is automatically renewed for up to 180 days from the date of the prior EAD’s expiry, or until adjudication of the EAD renewal application. The Form I-9 rule is also updated to permit an I-797 receipt notice to be accepted as a permissible I-9 document, in conjunction with the expired EAD, to re-verify the foreign national’s work authorization. This additional 180-day period will not apply to those categories that first require the approval of an underlying application before the EAD renewal can be adjudicated.
- Filing H-1Bs for Employees Without Full Licensure:
In cases where a state permits foreign nationals to work without licensure under the supervision of licensed personnel, USCIS will be able to approve an H-1B classification after examining the credentials of the supervisor, as well as evidence that the employer is complying with the state’s requirements.
- H-1B Cap Exemptions Based on Affiliations with Universities:
Certain non-profit organizations that have affiliations with non-profit universities, are eligible to be cap-exempt organizations. This means they can file H-1B petitions at any time of the year. To qualify, the non-profit organization must have a formal written affiliation with the university that establishes an active working relationship for the purposes of research or education. In addition, a fundamental activity for the non-profit organization must directly contribute to the research or education mission of the university.
- Protection for H-1B Whistleblowers:
In cases where H-1B employees report an employer violation which results in a failure to maintain H-1B status due to the employer’s retaliation, USCIS will consider whether such failure to maintain status is an “extraordinary circumstance” that justifies excusing the lack of status.
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