One of the last acts of the Obama administration will be updating the federal regulations to modernize several employment-based visa classifications. These new rules will go into effect on Enero 17, 2017.
While many of the updates simply codify existing U.S. Citizenship and Immigration Services (USCIS) policies into the regulations, there are significant additions that will benefit foreign workers. Below are highlights of the new changes that are likely to be most relevant to your business:
- Nonimmigrants in the E-3, H-1B, H-1B1, L-1, and O-1 classifications (and their dependents) having an approved I-140 petition can apply for a one year Employment Authorization Document (EAD), if their priority date is backlogged and there are compelling circumstances justifying the need for work authorization. While USCIS has not defined compelling circumstances, this could include serious illness to the applicant or a family member, termination based on employer retaliation, substantial harm to the applicant, or a significant disruption to the employer. Processing delays alone will likely not constitute a compelling circumstance, but USCIS indicates it will evaluate matters on a case-by-case basis.
- Nonimmigrants in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN classifications (and their dependents) will now receive up to a 60 day grace period in the event of termination. Qualifying nonimmigrants, whose I-94 expires in less than 60 days from their termination, will receive a grace period through the validity date of their I-94. During the 60 day grace period work will not be authorized, except for H-1B nonimmigrants having filed to port to another employer. However, status will be maintained and a foreign national can seek to remain in the U.S. by extending or changing their status with USCIS.
- Nonimmigrants in the E-1, E-2, E-3, L-1, and TN classifications (and their dependents) will now receive a 10 day grace period before their work authorized status begins, as well as after it is completed. Similar grace periods currently exist for the H-1B, O, and P classifications. These grace periods allow foreign nationals time to get settled and wrap up their affairs when coming on a temporary work assignment. During these 10 day grace periods work will not be authorized, except for H-1B nonimmigrants having filed to port to another employer. However, status will be maintained and a foreign national can seek to extend or change their status with USCIS.
- Applicants in 15 employment eligible classifications, including Adjustment of Status, Temporary Protected Status, and asylees, will now receive an automatic extension of their EADs for up to 180 days by timely filing their EAD renewal request. Denial of the EAD renewal application will result in cessation of the automatic extension. Rules to Form I-9 have been updated to permit a receipt notice for an EAD renewal and an expired EAD as sufficient documentation to re-verify work authorization. Importantly, this change does not apply to all foreign nationals eligible for EADs, such as Deferred Action for Childhood Arrivals (DACA) recipients and H-4, L-2, and E spouses.
- To better facilitate timely adjudications, USCIS will now allow most EAD renewals to be filed 180 days prior to the current EAD’s expiration date as opposed to the 120-day period presently in place.
Please note that while these updated regulations go into effect prior to President-elect Trump taking office, the new administration or Congress could take steps to change or withdraw these regulations in 2017. We will continue to monitor new developments in this regard. If you have questions about these changes or need assistance, please do not hesitate to contact us.