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Special Alert: USCIS Releases New Rule

November 22, 2016

USCIS Issues New Rule: Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers

On November 18, 2016, the United States Citizenship and Immigration Services (USCIS) published a new Rule in the Federal Register entitled Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant WorkersThe Rule is scheduled to go into effect on January 17, 2017.

A draft of the Rule was published earlier this year, and Erickson Immigration Group (EIG) had the opportunity to present / speak on a panel at the SHRM Council for Global Immigration Symposium in Washington, DC to discuss the new Rule.

The new Rule, including comments, is 366 pages. EIG has summarized the major changes below. Please keep in mind that the Rule was drafted by the current administration, and therefore it could eventually be stricken by the incoming administration and next Secretary of Homeland Security.

Highlights/Summary:

10-Day and 60-Day Rule

  • The new Rule implements an automatic 10-day visa validity period for employees in E-1, E-2, E-3, H-1B, L-1 or TN visa status, up to 10 days before the visa begins and 10 days after the validity period ends.
  • In the event that employment ceases, employees in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN visa status will be granted a 60-day grace period for which they may change to another visa status, look for new employment, or wrap up their affairs in the U.S. Work authorization is not permitted during the grace period.

New EAD Rule

  • USCIS will begin accepting I-765, Applications for Work Authorization 180 days before current EAD expiration. The current rule allows applicants to apply only 90 days before current EAD expiration.
  • For certain EAD categories, so long as the EAD renewal is filed before the employee’s current EAD expires, work authorization will be extended for a provisional period of 180 days or until the EAD renewal is issued by the USCIS (whichever is sooner). This rule does not apply to H-4, E-3D, or L-2 EADs, but does apply to EAD applications based on a pending adjustment of status application.
  • Under compelling circumstances, employees in E-3, H-1B, H-1B1, L-1 or O-1 visa status with an approved I-140 but no immigrant visa available, may apply for an employment authorization document (under the discretion of USCIS).

New I-140 Rule

  • In the event an I-140 is withdrawn by a previous Petitioner (and revoked by USCIS), an employee will be allowed to retain his / her priority date unless the I-140 was revoked for fraud, misrepresentation, or USCIS / DOL approval error. The rule is not retroactive.
  • So long as an I-140 has been approved in excess of 180 days, an employee will be eligible to utilize the I-140 to extend his / her H-1B in three year increments due to visa unavailability (with a new employer) – even in the event that the Petitioner has withdrawn the I-140.
  • In the event that a Petitioner’s business ceases to exist, an employee will be allowed to retain his / her priority date provided the I-140 has been approved for a period in excess of 180 days (e.g. no longer subject to automatic revocation).

New AC21 Supplement

  • The new Rule introduces Supplement J for employees with an approved I-140 and pending I-485 longer than 180 days, looking to “port” their adjustment of status application to a new employer.
  • The new Supplement J will likely be issued in RFEs on pending retrogressed I-485s, and will require attestations showing how the new employment is the same or similar to the original offer of employment (if the I-140 was filed by a different employer).
  • The purpose of Supplement J is to standardize the evidentiary requirement and submissions for AC21 portability claims / applications.

EIG will continue to monitor the Rule, and provide updates on any changes or amendments that may occur after January 17, 2017.