8 Highlights From Important New Rule On Employment Immigration


Last week the US Citizenship and Immigration Services (USCIS) announced a new final rule on employment Immigration that goes into effect on January 17, 2017.

There are several major changes. Here are some of the highlights:

1. Grace Periods for E, H-1B, L-1 and TN Classifications

There will now be a mandatory 10-day grace period for these categories before the petition or status begins, as well as a 10-day grace period after the petition or status ends. Foreign nationals in these classifications will be able to enter the US up to 10 days before their status is due to begin, and they can leave up to 10 days after it expires.

2. Grace Period After Cessation of Employment for E, H-1B, H-1B1, L-1, O-1 and TN Classifications

Persons in these classifications and their dependents will be entitled to a 60-day grace period following the cessation of employment, provided their authorized stay is valid for at least 60 days after such cessation. If not, the grace period will end on the date the authorized date is set to expire.

3. New Employment Authorization Document (EAD) Category

Both persons in these classifications, and their dependents in E-3, H-1B, H-1B1, O-1 or L-1 status (or in one of the new grace periods, either before or after entry), will be able to apply for discretionary work authorization, where “compelling circumstances” exist. To be eligible the applicant must also have an approved I-140 immigrant petition in the EB-1, EB-2 or EB-3 categories for which the priority date is backlogged.

4. Automatic Renewal of Work Authorization Upon Filing EAD Renewal Application

Upon filing an EAD renewal in the same category, work authorization is automatically renewed for up to 180 days from the date of the prior EAD’s expiry, or until adjudication of the EAD renewal application. The Form I-9 rule is also updated to permit an I-797 receipt notice to be accepted as a permissible I-9 document, in conjunction with the expired EAD, to re-verify the foreign national’s work authorization. This additional 180-day period will not apply to those categories that first require the approval of an underlying application before the EAD renewal can be adjudicated.

5. Filing H-1Bs for Employees Without Full Licensure

In cases where a state permits foreign nationals to work without licensure under the supervision of licensed personnel, USCIS will be able to approve an H-1B classification after examining the credentials of the supervisor, as well as evidence that the employer is complying with the state’s requirements.

6. H-1B Cap Exemptions Based on Affiliations with Universities

Certain non-profit organizations that have affiliations with non-profit universities, are eligible to be cap-exempt organizations. This means they can file H-1B petitions at any time of the year. To qualify, the non-profit organization must have a formal written affiliation with the university that establishes an active working relationship for the purposes of research or education. In addition, a fundamental activity for the non-profit organization must directly contribute to the research or education mission of the university.

7. Protection for H-1B Whistleblowers

In cases where H-1B employees report an employer violation which results in a failure to maintain H-1B status due to the employer’s retaliation, USCIS will consider whether such failure to maintain status is an “extraordinary circumstance” that justifies excusing the lack of status.

8. No Automatic Revocation of Certain Employment-Based Immigrant Petitions

An employment-based immigrant petition will not be automatically revoked if it is withdrawn by the employer, or if the employer’s business is terminated more than 180 days following its approval, or when an associated with an I-485 adjustment of status application that has been pending for more than 180 days. To adjust status or qualify to transfer the approved immigrant visa under the immigrant visa portability rule, the applicant would still have to obtain a new approved immigrant visa.

This is a first in what will be a series of blogs discussing new developments by the outgoing Obama Administration, and by the incoming Trump Administration.

This post originally appeared on Wolfsdorf Immigration Law Group. Copyright © 2016 Wolfsdorf Connect - All Rights Reserved. Reprinted with permission.

About The Author

Avi Friedman Cliff Rosenthal is a partner at Wolfsdorf Rosenthal LLP. He specializes in the business, entertainment and family immigration law field. He is a former member of the American Immigration Lawyer Association (AILA) Board of Publications and Healthcare Committee. He is also a past Chair of AILA's Religious Worker Committee. He is listed in The International Who's Who of Corporate Immigration Lawyers. Cliff Rosenthal can be contacted at crosenthal@wolfsdorf.com.

Bernard Wolfsdorf Bernard Wolfsdorf is the managing partner of the top-rated law firm, Wolfsdorf Rosenthal LLP (www.wolfsdorf.com), and the past national president of the 14,000-member American Immigration Lawyers Association (AILA). Established in 1986, Wolfsdorf Rosenthal LLP is known worldwide for providing exceptional quality legal services. With 19 lawyers and offices in Los Angles and New York, the firm was recently listed as a top-tier immigration practice by Chambers & Partners with several of the firm's attorneys listed in the 2015 International Who's Who Legal. Mr. Wolfsdorf specializes in EB-5 investment immigration in addition to the full range of global immigration matters.

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