Immigration thoughts from an Immigration Lawyer.

New Rule for High Skilled Worker

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On November 18, 2016, the USCIS announced its Final Rule for the proposed rule announced almost a year ago, affecting certain employment-based immigrants and high skilled non-immigrant workers. This Final Rule will become effective on January 17, 2017. For most parts, the new rules are beneficial for those affected. The followings are some of the highlights of the new rules. 

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

An I-140 approval will remain valid even if the petitioner withdraws the I-140 or the petitioner terminates its business as long as 180 days have passed since your I-140 approval OR since the date of filing of an associated I-485 application.

Be reminded that if your I-140 is found to have material error, or fraud or misrepresentation of material fact, or if your Labor Certification is revoked or found invalid, 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

In addition to H, O, and P holders, E1, E2, E3, L1, TN holders and their dependents will also be granted 10-day grace period before and after the validity period of the non-immigrant petition. Be reminded that you cannot work during these 10-day grace periods; you can only legally stay in the U.S.

60-Day Grace Period for E1, E2, E3, H1B, H1B1, L1, O1 TN

Visa holders in E1, E2, E3, H1B, H1B1, L1, O1, TN categories will be given a 60-day Grace Period once per authorized validity period. This will allow these workers to legally stay in the U.S. even if their employment is suddenly terminated. Be aware that if the authorized validity period is less than 60 days after the termination of the employment, the Grace Period will be given only until the end of the authorized validity period, not for the full 60 days.

1-Year Employment Authorization in Compelling Circumstances

If you meet the following 4 criteria, you and your family can receive an 1-year EAD:

  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.

A renewal must be filed before the expiration of the current EAD, and meet one of the following two requirements:

  1. Principal beneficiary continues to demonstrate compelling circumstances and an immigrant visa is not authorized for issuance to the principal beneficiary based on his or her priority date; or
  2. The difference between the principal beneficiary’s priority date and the relevant Final Action Date in the Visa Bulletin is 1 year or less.

Automatic Extension of EAD for Certain Categories

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 Final 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); and
  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.

1-year extension based on I-140 petition or Labor Certification filing (section 106(a) of AC21)

You will be able to file H1B 1-year extension before your 6-year limitation is reached, as long as your I-140 petition or Labor Certification has been filed for more than 365 days.

H1B “recapture” can be made anytime, even more than 6 years after the initial grant of the H1B

This Final Rule makes it clear that there is no “statute of limitations” on recapturing the remainder of the initial 6-year period of H1B admission.

EAD may not be adjudicated within 90 days, but renewals can be filed 180 days before expiration

EAD initial applications and renewal applications will no longer be adjudicated within 90 days, however you can still contact the service center for priority processing after 75 days from filing of the application.

Moreover, a renewal application for certain categories can be filed up to 180 days before the expiration of the current EAD.

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