Immigrantly

Immigration thoughts from an Immigration Lawyer.

Proposed New Rule for High Skilled Worker

1 Comment

[Update]: The Final Rule of this proposed rule was announced on November 18, 2016. For details, please see “New Rule for High Skilled Worker“.

On the last day of 2015, the USCIS announced a “Proposed Rule Affecting Certain Employment-Based Immigrant and Nonimmigrant Visa Programs” and asked for public comments. These rules, if become law, will greatly benefit the high skilled non-immigrant workers as well as those applying for green card. The followings are some of the highlights of the proposed rules.  

Restrictions on automatic revocation of approved I-140 for EB1, EB2, EB3

<Current Rule>

After you receive your I-140 approval, if you change your employer (who is your green card sponsor) and the employer withdraws the I-140, or if the employer goes out of business, your I-140 will be automatically revoked. What this means is that 1. you can no longer extend your H1B beyond 6 years; 2. your H-4 spouse can no longer work under the new rule for gaining an EAD; and 3. you MAY lose your priority date (there are some legal disagreements around this issue).

<Proposed Rule>

Your approved I-140 will not be automatically revoked if 180 days or more have passed since your I-140 approval. Moreover, even when your I-140 is withdrawn or the sponsoring employer goes out of business within 180 days, you will be able to keep your priority date, though you won’t be able to extend your H1B beyond 6 years or H-4 EAD.

Please note that this rule only applies to revocations based on the sponsoring employer’s withdrawal or going out of business. If your I-140 is found to have fraud or misrepresentation, your I-140 will still be revoked and you will also lose your priority date.

10-Day Grace Period for E1, E2, E3, L1, TN

<Current Rule>

H1B holders are allowed to stay (but not work) in the U.S. 10 days before the start of their permitted work day, and 10 days after the end of such day. These 10 days are so-called “Grace Period.” Because the current law does not grant such Grace Period for E, L, TN visa holders, they cannot enter the U.S. before their authorized starting date, and must leave immediately after the authorized end date. Otherwise, they will be unlawfully present in the U.S.

<Proposed Rule>

The same 10-day Grace Period will also be given to E1, E2, E2, L1, and TN holders, allowing them some time to settle down before the beginning of work, and to prepare for departure after the end of their work.

60-Day Grace Period for E1, E2, E3, H1B, H1B1, L1, TN

<Current Rule>

If you are suddenly terminated in the middle of your employment, you must immediately depart the U.S., otherwise you will be staying illegally. The current law does not grant any Grace Period in this situation, unlike many visa holders mistakenly believe. This has long been an issue, because in many cases, the visa holders are notified of the termination only a few days before the actual termination date, or worse, on the same day. There would be no time to prepare for departure, let alone trying to find a new visa sponsor. The current solution for this issue is to file a change of status application (I-539) to a B2 status, before the actual termination date. However, finding a lawyer or how to apply (if one does it on his/her own) also takes time.

<Proposed Rule>

Visa holders in E1, E2, E3, H1B, H1B1, L1, TN categories will be given a one-time 60-day Grace Period, so that they can try to find the next sponsor, or to prepare to depart the U.S. If, however, the end of the employment validity date is shorter than 60 days, they will be given only until the end of your validity date.

1-Year Employment Authorization in Compelling Circumstances

<Current Rule>

In general, the only time an employment-based green card applicant can change his/her employer, job duties, or work location, without jeopardizing their green card application is after the I-485 has been pending for at least 180 days. Applicants with long wait period between I-140 and I-485 are often forced to chose between sticking to an undesired job, and starting the green card process all over again.

<Proposed Rule>

You can receive a 1-year EAD if you meet all of the following 4 criteria:

(1) The individual is currently in the United States and maintaining E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status;

(2) the individual is the beneficiary of an approved immigrant visa petition under the EB-1, EB-2 or EB-3 classification;

(3) the individual does not have an immigrant visa immediately available; and

(4) the individual can demonstrate to the satisfaction of DHS compelling circumstances that justify an independent grant of employment authorization.

The (4) criteria is the most mysterious and uncertain one. The proposed rule specifically states that “DHS is not proposing to define the term “compelling circumstances” at this time, as the Department seeks to retain flexibility as to the types of compelling circumstances…” The proposed rule does, however, give some examples:

  • Serious Illnesses and Disabilities
  • Employer Retaliation
  • Other Substantial Harm to the Applicant
  • Significant Disruption to the Employer

 

For the detailed explanations of these examples, please read the proposed rule.

Automatic Extension of EAD for Certain Categories

<Current Rule>

One can work only during the validity period of an EAD. Therefore, if your EAD expires, but your application for a renewal has not been approved, you must stop working.

<Proposed Rule>

The validity of your EAD will be automatically extended for up to 180 days after the expiration date, if you meet all of the following conditions:

(1) Your EAD category is one of the 15 categories specified in the proposed rule. (In the business immigration context, the applicable category is for applicants with a pending I-485);

(2) The individual files a request for renewal of his or her EAD prior to its expiration date.

(3) The individual is requesting renewal based on the same employment authorization category under which the expiring EAD was granted, or the individual has been approved for TPS and his or her EAD was issued pursuant to 8 CFR 274a.12(c)(19).

(4) The individual either continues to be employment authorized incident to status beyond the expiration of the EAD or is applying for renewal under a category that does not first require adjudication of an underlying application, petition, or request.

For Employment Eligibility Verification (Form I-9) purpose, a combination of the expired EAD and a receipt notice (I-797C) indicating the timely filing for the renewal will be considered an unexpired EAD.

Please submit your comments!

The USCIS is asking for public comments on this proposed rule until February 29, 2016. Please submit your comments to help improving our immigration policies!

You can submit comments, identified by DHS Docket No. USCIS-2015-0008, by one of the following methods:

  • Federal eRulemaking Portal: You may submit comments to USCIS by visiting http://www.regulations.gov. Follow the instructions for submitting comments.
  • Email: You may submit comments directly to USCIS by emailing them to: USCISFRComment@dhs.gov. Please include DHS Docket No. USCIS-2015-0008 in the subject line of the message.
  • Mail: You may submit comments directly to USCIS by mailing them to: Laura Dawkins, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW., Washington, DC 20529. This mailing address may be used for paper, disk, or CD-ROM submissions. To ensure proper handling, please reference DHS Docket No. USCIS-2015-0008 on your correspondence.
  • Hand Delivery/Courier: You may submit comments directly to USCIS by hand delivery or courier to: Laura Dawkins, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW., Washington, DC 20529. The contact telephone number is (202) 272-8377. To ensure proper handling, please reference DHS Docket No. USCIS-2015-0008 on your delivery.

One thought on “Proposed New Rule for High Skilled Worker

  1. Very thorough post Yan, thanks for writing!

    Liked by 1 person

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