New Rules for Employment-Based Immigrants and Non-Immigrants EAD for E, H, O, L status holders, 60-day grace period

December 9, 2016

The United States Citizenship and Immigration Services (USCIS) published a final rule to improve aspects of certain employment-based immigrant and nonimmigrant visa programs.  Preexisting regulations have been amended to enable US employers to hire and retain foreign workers who are beneficiaries of approved employment-based visa petitions as they wait to become lawful, permanent residents.  The rule positions nonimmigrant workers to further their careers by accepting promotions, changing positions within current employers, and pursuing other job opportunities.

These changes will expand the class of workers eligible to apply for an Employment Authorization Document (EAD), setting guidelines on when an employment-based immigrant may retain his or her “priority date” after departing from their employers. Among the more notable provisions, the rule permits persons of E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status to apply for an EAD, provided they meet certain conditions:

1. Applicant is the beneficiary of an approved employment-based immigration visa petition
2. Applicant is unable to apply for adjustment of status or an immigrant visa stamp because his or her priority date is not current under the Visa Bulletin
3. The applicant shows “compelling” circumstances justifying the grant of an EAD, such conditions may include:
4. Serious illness or disability faced by the worker or dependents
5. Employer retribution against the nonimmigrant worker
6. Any other arguably substantial harm to the applicant

Dependent family members of qualifying applicants may also apply for an EAD.  The rule states that dependents may apply at the same time as qualifying principal applicants; dependents may, along with qualifying principals, renew their EADs provided they continue to meet the above requirements. Such employment authorization renewal is limited to specific circumstances and may only occur in one year increments.

In the event that a nonimmigrant worker’s employment is terminated during his or her stay, the new rule dictates that there will be a formalized grace period of up to 60 days during which the nonimmigrant worker may remain in the United States while finalizing new employment.  This improvement ensures that such workers can safely extend their status without returning to their home country to obtain a new visa.

The new rule also clarifies the way in which H-1B nonimmigrant workers are counted against the annual H-1B numerical cap as well as the method for determining which H-1B nonimmigrant workers are exempt fro the numerical cap.  Those nonimmigrant workers who are employed at an institution of higher education, a nonprofit entity related to or affiliated with such an institution, or a governmental or nonprofit research organization are generally upheld as “cap exempt” under the new rule.

Finally, the new rule eliminates the previously help regulatory provision requiring USCIS to adjudicate the Form I-765, the Application for Employment Authorization, within 90 days of filing.  These changes further the applicant’s stability, reducing opportunities for fraud and protecting the security of the EAD application process.  By revising such application procedures and by editing the provisions affecting the validity of I-140 Immigrant Petitions for Alien Workers, the final rule amends the current scheme governing certain immigrant and nonimmigrant visa programs to further enhance job portability for workers and to leverage US businesses in retaining highly valued individuals.

The final rule is set to go into effect on January 17, 2017.  For more information on the final rule and those visa holders protected under the amendments and improvements put forth by the rule, visit the DHS Brief.  If you are currently benefitting from an employment-based visa program and are seeking clarification on the aforementioned improvements to the final rule, call Lubiner, Schmidt & Palumbo today for a consultation.