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Rules for employment-based visa programs

By Humera Subhani

January 2017

Rules for employment-based visa programs

A final rule to improve certain employment-based nonimmigrant and immigrant visa programs is effective January 17, 2017.

Among other things, DHS is amending its regulations to
• Improve job portability for certain beneficiaries of approved Form I-140 petitions by maintaining a petition’s validity under certain circumstances despite an employer’s withdrawal of the approved petition or termination of the employer’s business;
• Clarify and expand when individuals may keep their priority date when applying for adjustment of status to lawful permanent residence;
• Allow certain high-skilled individuals in the USA with E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status, including any applicable grace period, to apply for employment authorization for a limited period if
1. They are the principal beneficiaries of an approved Form I-140 petition,
2. An immigrant visa is not authorized for issuance for their priority date, and
3. They can demonstrate compelling circumstances (see below) that justify DHS issuing an employment authorization document.

Such employment authorization may only be renewed in limited circumstances and only in one-year increments.

• Clarify adjudication of H-1B petitions, including providing H-1B status beyond the six-year authorized period of admission, determining cap exemptions, and counting workers under the H-1B cap and H-1B portability;
• Establish two grace periods of up to 10 days for individuals in E-1, E-2, E-3, L-1, and TN nonimmigrant classifications to provide time for these individuals to prepare to begin employment in the country and to depart the USA or take other actions to extend, change, or maintain lawful status;
• Establish a grace period of up to 60 days during each authorized validity period for certain high-skilled nonimmigrant workers when their employment ends before the end of their authorized validity period, so they may pursue new employment and an extension of their nonimmigrant status; and
• Automatically extend the employment authorization and validity of Employment Authorization Documents (EADs or Form I-766s) for certain individuals who apply on time to renew their EADs.

The I-140 based EAD eligibility seems restrictive. The applicant must demonstrate compelling circumstances that justify employment authorization. Circumstances that might qualify as compelling include
• Serious illness or disability to the worker and/or a dependent family member;
• Employer retaliation, such as where a dispute arises with one’s employer who is engaged in illegal activity, followed by retaliation against the employee;
• Other substantial harm to the applicant (including inability to maintain status, resulting in harm to the applicant or family without continued work authorization); or
• Significant disruption to the employer.

The grace periods mentioned will likely allow a smoother transition of status for immigrants.

[The article above contains additional material not in the print and digital issues.]

APPLICATION FINAL ACTION DATES FOR January 2017

FAMILY	India	Pakistan/Bangladesh
1st	08Jan10	08Jan10
2A	22Mar15	22Mar15
2B	08Jun10	08Jun10
3rd	01Mar05	01Mar05
4th	15May03	22Jan04

EMPLOYMENT	India	Pakistan/Bangladesh
1st	Current	Current
2nd	15Apr08	Current
3rd	15Mar05	01Aug16
Other	15Mar05	01Aug16
4th	Current	Current
5th	Current	Current1B

DATES FOR FILING VISA APPLICATIONS - January 2017

FAMILY	India	Pakistan/Bangladesh
1st	01Jan11	01Jan11
2A	22Nov15	22Nov15
2B	08Feb11	08Feb11
3rd	22Aug05	22Aug05
4th	01May04	01Jul04

EMPLOYMENT	India	Pakistan/Bangladesh
1st	Current	Current
2nd	22Apr09	Current
3rd	01Jul05	Current
Other	01Jul05	Current
4th	Current	Current
5th	Current	Current1B