Immigration Law Associates, PC

USCIS Rule to Improve Employment-Based Visa Programs has gone into Effect

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On January 17, 2017, USCIS’s rule to improve several aspects of employment-based nonimmigrant and immigrant visa programs, went into effect. USCIS had also amended regulations to better enable U.S. employers to hire and retain certain foreign workers with approved employment-based immigrant visa petitions waiting to become lawful permanent residents.

The rule and amended regulations aim to do the following:

  • Clarify and improve DHS policies related to foreign workers implementing sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act.
  • Better enable U.S. employers to employ and retain high-skilled workers with approved employment-based immigrant visa petitions (I-140 petitions) while also providing stability and job flexibility for these workers. The rule increases the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers and pursuing other employment opportunities.
  • Improve job portability for some foreign workers with approved I-140 petitions by maintaining a petition’s validity under certain circumstances despite an employer’s withdrawal of the approved petition or the termination of the employer’s business.
  • Clarify when individuals may keep their priority date when applying for adjustment of status to lawful permanent residence.
  • Allow certain high-skilled individuals in the U.S with E-3, H-1B, H-1B1, L-1 or O-1 nonimmigrant status to continue applying for employment authorization for a limited period if:
  1. They are the principal beneficiaries of an approved I-140 petition,
  2. An immigrant visa is not authorized for issuance for their priority date, and
  3. They can demonstrate that compelling circumstances exist justifying DHS to continue authorizing employment authorization in its discretion.
  • Clarify various policies related to the adjudication of H-1B petitions, including: the provision of H-1B status beyond the six year authorized period of admission, the determination of cap exemptions and counting workers under the H-1B cap, H-1B portability, licensure requirements and protections for whistleblowers.
  • Establish two grace periods of up to 10 days for those in the E-1, E-2, E-3, L-1, and TN nonimmigrant classifications to provide a reasonable amount of time for them to (1) prepare to begin employment in the country; (2) depart the United States; or (3) take other actions to extend, change, or otherwise maintain lawful status.
  • Establish a grace period of up to 60 consecutive days during each authorized validity period for certain high-skilled nonimmigrant workers when their employment ends before the end of their authorized validity period, so they may more readily pursue new employment and an extension of their nonimmigrant status.
  • Automatically extend the employment authorization and validity of Employment Authorization Documents (EADs) for certain individuals who apply on time to renew their EADs.
  • Eliminate the regulatory provision that requires USCIS to adjudicate the Form I-765, Application for Employment Authorization, within 90 days of filing and that authorizes interim EADs in cases where such adjudications are not conducted within the 90-day timeframe.

For more information, read the rule in the Federal Register at: 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





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