New USCIS Regulation Eases Job Portability

New USCIS Regulation Eases Job Portability for Employer-Sponsored Foreign Workers

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.

Here is a summary of some key components to the new rule:

Grace Periods for Nonimmigrant Workers

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.

H-1B Extensions Beyond the Sixth Year

• Post-sixth year extensions will be available to foreign nationals not currently in H-1B status. This does not apply if they previously held that status and remain eligible for an additional period of H-1B admission.
• An H-1B nonimmigrant becomes ineligible for a one-year post-sixth year extension if the individual does not apply for adjustment of status or an immigrant visa within one year of the immigrant visa becoming available.
• A one-year post-sixth year H-1B extension is not available if, at the time of filing the extension, the foreign national’s labor certification is no longer valid, his or her I-140 has been denied or revoked, or an adjustment application or an immigrant visa has been approved or denied.
• An H-1B whose approved I-140 petition was withdrawn 180 days or more after approval remains eligible for a three-year extension. This does not apply if the reason for I-140 withdrawal included fraud, material misrepresentation, material USCIS error, or revocation or invalidation of the labor certification.

Portability and Priority Date Retention for I-140 Beneficiaries

The new regulation eases the impact of I-140 petition revocations and codifies certain longstanding agency policies on I-140 portability.

• A foreign national whose I-140 petition has been approved for 180 days or more will not have the petition automatically revoked if the employer goes out of business or withdraws the petition. However, the foreign national will need a new job offer or a new I-140 petition to obtain employment-based permanent residence.
• An I-140 beneficiary whose petition is revoked can use the same priority date for a later I-140 petition, unless the reason for revocation was fraud, material misrepresentation, invalidation or revocation of the labor certification, or material USCIS error.
• Consistent with current policy, the beneficiary of a pending I-140 can change employment after his or her adjustment of status application has been pending for 180 days or more, if the pending I-140 petition was approvable when filed and remained approvable for 180 days after filing.

Employment Authorization for Certain Approved I-140 Beneficiaries

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.

Employment Authorization Documents: Automatic Extensions and Application Processing

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.

What the New Regulation Means for Employers and Foreign Nationals

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.