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The Biggest Immigration Regulations of 2016

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  1. Extending Work Authorization for Foreign Grads

A new regulation took effect in May 2016 under which certain F-1 student visa holders who have completed science or technology degrees in the U.S. can extend their post-completion work authorization by several months under optional practical training, or OPT.

Specifically, foreign students and graduates with degrees in science, technology, engineering or math (STEM) are able to extend the initial one-year work period allowed after graduation by 24 months, for a total of three years. STEM students were previously able to extend their work period by just 17 months, for a total period of less than 2.5 years, meaning the new rule could buy F-1 visa holders enough time for another shot at the annual H-1B visa lottery. The rule also requires OPT students to prepare and complete with their employers a “formal training plan” that maps out learning goals.

The new rule however, can be challenged in the near future. A union has in fact lodged a new complaint challenging the revised rule. The Trump administration may also seek to make its own changes to the program.

For more information on this regulation, please click here: https://www.uscis.gov/working-united-states/students-and-exchange-visitors/students-and-employment/stem-opt

 

  1. Job Flexibility for Skilled Worker

Another major immigration rule came in November 2016 when the U.S. Department of Homeland Security published a final rule to boost job flexibility for skilled foreign workers. Overall, the rule aligns DHS regulations with a 16-year-old law called the American Competitiveness in the Twenty-First Century Act, or AC21. The law was an important piece of legislation for skilled foreign workers, as it allowed for a longer H-1B status extension and included a key provision on changing jobs, but the agency hadn’t issued regulations implementing it until now.

Among the key sections of the rule is a provision that says that immigrant visa applications, I-140 petitions, that have already been approved for at least 180 days will not be subject to revocation due to a withdrawal by the employer or if the company goes out of business. The rule also contains key grace period provisions to help keep immigrants from violating their status. For instance, Homeland Security will give a 60-day cushion to immigrants dealing with a job loss.

The long-awaited rule goes into effect January 17, 2017.

For more information on the rule, please click here: https://www.federalregister.gov/documents/2016/11/18/2016-27540/retention-of-eb-1-eb-2-and-eb-3-immigrant-workers-and-program-improvements-affecting-high-skilled

 

  1. Possible Temporary Entry for Startup Founders

Under a proposed rule rolled out in late August 2016, the government would allow startup founders to receive temporary permission to be in the country, otherwise known as “parole,” for two years, with a possible three-year extension. The proposed rule has had positive feedback, since entrepreneurs currently only have limited visa options. However, its potential investment demands means the program is not for everyone. It is also important to understand that parole is not considered an official admission to the U.S.

Because the rule is only at the proposed stage, its fate under the incoming Trump administration is still uncertain.

To view the proposed rule, please click here: https://www.uscis.gov/sites/default/files/USCIS/Laws/Articles/FR_2016-20663_793250_OFR.pdf

 

  1. An Expanded Waivers Regulation

USCIS rolled out a final rule that will expand the pool of people who are eligible for a key inadmissibility waiver. Under the rule, which took effect on August 29, 2016, the government expanded the group of people who can get provisional waivers of inadmissibility based on being unlawfully present in the U.S.  The provisional waiver was created by the Obama Administration in 2012 to allow people subject to the 3 and 10-year bars to apply for a waiver of inadmissibility before they leave the United States to consular process their visas. The old way of doing things required you to leave and then apply for a waiver from outside the United States. That process often resulted in the beneficiary being stuck in their home country for months or years while waiting on the waiver decision.

Until the final rule was rolled out this year, only immediate relatives of U.S. citizens were eligible to seek such provisional waivers before departing the United States for the processing of their immigrant visas.  Other grounds of inadmissibility were not waivable under the provisional waiver. This new regulation expands eligibility for the process to all individuals who are statutorily eligible for the waiver.

Specifically, the new rule rolled out the following significant changes:

  • Anyone Eligible for an Unlawful Presence Waiver Can Now File Provisionally (File Before Leaving the United States)- The rule now applies to anyone who has an approved immigrant visa (I-130, I-140, diversity, I-360) who has a spouse or parent who are US citizens or permanent residents and can show “extreme hardship”. The beneficiary has to be physically present in the United States when the waiver is filed. Once it is approved, the person can consular process their visas.
  • People with Final Orders of Removal Will Be Eligible for Provisional Waiver if They Are First Approved for Advance Permission to Return on Form I-212 – People with final orders of removal can apply for the I-212 in the United States. Once that is approved, they can submit provisional waivers on Form I-601A in the United States. Once that is approved, they can consular process their visas.
  • USCIS will no longer deny the I-601A for “reason to believe” the applicant is subject to other grounds of inadmissibility.
  • The provisional waiver will be available now even if you had a visa interview scheduled before January 3, 2013.

To view the final rule, please click here: https://www.federalregister.gov/documents/2016/07/29/2016-17934/expansion-of-provisional-unlawful-presence-waivers-of-inadmissibility

 

  1. New DOJ Rule

Last, in a final rule published this month, the U.S. Department of Justice clarified its regulation implementing the employment discrimination provision of the Immigration and Nationality Act. The new version of the rule adds language to the DOJ’s definition of “discriminate” to make clear the agency will not challenge an employer action unless it’s done with the intent of treating persons differently because of national origin or immigration status.

To view the rule, please click here: https://www.federalregister.gov/documents/2016/12/19/2016-29726/recognition-of-organizations-and-accreditation-of-non-attorney-representatives

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