New Regulations for Immigrant Workers

The U.S. Department of Homeland Security (DHS) finally published its new regulation “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Non-Immigrant Workers” which will take effect on January 17, 2017.

Unlike several of President Obama’s recent executive orders, which many fear will be cancelled or modified once President-Elect Trump takes office, these new regulations will have the effect of actual laws which can only be undone after going through the official rule making process.

The intent of the new rule is “to better enable U.S. employers to sponsor and retain high-skilled non-immigrant workers and provide greater stability and job flexibility for those workers.”

Since many of the sections of this rule merely restate existing USCIS policies as provided in their memos, policy guidances, and advisory opinions, we’re focusing this bullet-point presentation on several of the key changes which will impact our corporate clients and the foreign nationals they employ and sponsor for U.S. visas.

  • A new form I-485J will be used by employers sponsoring foreign nationals who are already in the final stages of “green card” sponsorship through a previous employer. The approval of this petition is contingent on several factors, including the new employer proving the positions are “similar”.
  • Employment Authorization Documents (EAD’s) for foreign nationals (FN’s) (and their families) who have approved employer-based immigrant petitions, provided that they can demonstrate compelling reasons for EAD issuances.
  • Automatic extension of EAD’s for up to 180 days if the renewal application is timely filed and based on the same employment authorization category as the existing EAD. This extension is available to adjustment of status applicants, and STEM graduates seeking additional extensions of OPT (does not apply to applications by H-4, L-2 or E non-immigrant spouses). EAD renewals can now be filed 180 days prior to expiration.
  • Discretionary 60 day grace period for those employed in E-1, E-2, E-3, H-1B, H1B1, L-1, O-1 and TN status for FN’s terminated prior to their visa expiration validity date. Change of status and extension approvals permitted if filed within the grace period.  Also extends the 10 day grace period to E, H, L, and O nonimmigrants.
  • Validity of I-140 petitions submitted by another employer will no longer be automatically terminated by the revocation or withdrawal by the previous sponsoring employer or the termination of the employer’s business if 180 days have elapsed since the I-140 approval or if the I-485 application has been pending for 180 days.
  • Barring a finding of fraud or “material error” by the Service, the foreign worker retains the priority date once the petition is approved for all subsequently filed I-140’s.
  • Expansion of definition of entities and organizations exempt from the H-1B cap.

Please do not rely on this summary as legal advice, as it is not intended as such.
We intend to provide more detailed analyses and guidance as we learn more prior to the January 17, 2017 effective date.

| Employment Authorization, Immigrant, Nonimmigrant