Post-Election Advisory Part 5: USCIS Amends Regulations for Employment-Based and Non-immigrant Visa Programs:
In the last days of the Obama Administration, U.S. Department of Homeland Security and the Citizenship and Immigration Services (“USCIS”) implemented long-awaited regulations affecting employment-based permanent residence, H-1B’s and employer-sponsored non-immigrant categories and employment authorization. The newly-implement regulations, which took effect on January 17, 2017, are intended to clarify existing policies relating to job flexibility, H-1B portability and employment authorization for employer-sponsored immigrants. Many of the newly-effective regulations will address issues arising under the American Competitiveness in the 21st. Century Act (“AC-21”), which became law over sixteen yaers ago.
Among its many provisions, the newly-effective regulations are intended to provide U.S. employers and certain foreign workers great flexibility in hiring and transferring between employers. They address “job flexibility” issues affecting foreign workers faced with long backlogs and wait times. Provisions relating to foreign workers who have been classified as eligible immigrants will enable them to accept promotions, change jobs and work locations, and seek new employment without forfeiting immigration benefits.
The newly-issued regulations touch on a wide range of topics relating to employment-based immigration, employment authorization and work-authorized non-immigrants. Highlights include provisions which:
- 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. in E-3, H-1B, H-1B1, L-1 or O-1 status to apply for employment authorization for a limited period and for compelling circumstances
- clarify various policies related to H-1B petitions, including the availability of H-1B status beyond the six-year period of authorized admission, determining cap exemptions and counting workers under the H-1B cap, H-1B portability and licensure requirements
- establish two 10-day grace periods for individuals in E-1, E-2, E-3, L-1, and TN classifications so that individuals have time to depart the U.S. or take other actions to extend, change, or otherwise maintain lawful status.
- establish a 60-day grace period for H-1B workers whose employment ends before the end of their authorized validity period, to permit them to pursue new employment or depart the U.S.
- provide an automatic extension of employment authorization and for individuals who have filed applications to renew their EADs.