On January 17, 2017, a new USCIS regulation takes effect that will ease job mobility restrictions for foreign workers sponsored for employment-based permanent residence. The new rule establishes grace periods for nonimmigrant workers, including H-1Bs, before and after their employment. It also provides automatic extensions for adjustment applicants who have filed to extend an employment authorization document (EAD). The regulation aims to enable U.S. businesses to retain and develop their workforce. It will also reduce the hardships to foreign workers caused by lengthy visa backlogs for permanent residency.
E, H-1B, H-1B1, L-1, O-1 and TN nonimmigrants whose employment is terminated prior to the authorized period of stay will have a grace period of up to 60 days to extend, change or otherwise maintain status or, in the H-1B context, to obtain new employment sponsorship.
Approved E, L-1 and TN nonimmigrants will have a 10-day grace period before and after the validity period. They may enter the United States 10 days before the start date to prepare for employment. They will have 10 days at the end of their period of stay to extend, change or otherwise maintain status. Otherwise, they must prepare for departure from the United States.
Individuals may not work during the grace periods, except for H-1B foreign nationals porting to new employment.
The new regulation eases the impact of I-140 petition revocations and codifies certain longstanding agency policies on I-140 portability.
The regulation allows E-3, H-1B, H-1B1, L-1 and O-1 nonimmigrants with an approved I-140 petition to apply for a one-year EAD if they have a backlogged priority date. They must show compelling circumstances to justify the need for the employment authorization. The criteria for compelling circumstances are not defined by the regulation. However, the examples provided by the rule include circumstances whereby loss of work authorization will cause significant disruption to the employer or significant harm to the employee.
The regulation offers an automatic 180-day work authorization extension to certain foreign nationals who file for EAD renewal, including adjustment applicants. This automatic extension will not be available to H-4, L-2 or E nonimmigrant spouses seeking renewal of employment authorization.
The new regulation eliminates the requirement that USCIS must process EAD applications within 90 days. USCIS has indicated that, except when impracticable, it will accept renewal applications up to 180 days before EAD expiration. They hope to minimize the impact of extended EAD processing delays on a foreign national’s eligibility to work. Previously, policy prohibited individuals from filing renewal applications more than 120 days before the EAD expires.
The new rule takes effect a few days before President-Elect Donald Trump takes office. It is not yet clear if the new administration will want to make changes to or withdraw the regulation. This action would require notice and an opportunity for the public to provide feedback. This process takes several months.
This alert is for informational purposes only. If you have any questions, please contact Heather Sivaraman.