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New DHS Rule Gives Employers, Employees Flexibility in Face of Immigrant Visa Backlogs

The Department of Homeland Security published a final rule on November 18, 2016, relating to certain employment-based visa programs. The new regulations will go into effect on January 17, 2017. The rule focuses on job flexibility in the face of immigrant visa backlogs. It seeks to make it easier for U.S. employers to hire and retain foreign workers who have been approved for an employment-based immigrant visa but are awaiting lawful permanent resident status, while also benefitting those workers by providing greater flexibility to seek promotions, accept lateral positions with the same employer, or change employers. Key parts of the rule are summarized below.

  • No Automatic Revocation. For certain workers, as long as their Form I-140 petition (employment-based immigrant visa application) has been approved for at least 180 days, the petition may remain valid even if the employer withdraws it or the employer's business terminates. 

  • Priority Dates. A worker with an approved Form I-140 petition will generally be able to retain his/her priority date and transfer it to a new and subsequently approved Form I-140 petition to avoid losing his/her place in line for an immigrant visa.

  • Grace Periods. The rule provides workers in the E-1, E-2, E-3, L-1, and TN visa categories with 10-day grace periods before and after their authorized validity periods to allow time for travel and other arrangements.[1] In addition, for workers in the above categories or in the H-1B, H-1B1, or O-1 categories whose employment ceases during the validity period, the new rule provides a 60-day grace period (or until the end of the validity period) to allow time to find a new job or change status.

  • Temporary Work Authorization. Certain high-skilled workers in the E-3, H-1B, H-1B1, L-1, and O-1 visa categories may apply for employment authorization while waiting for a visa to become available under an approved Form I-140 petition. The applicant must demonstrate "compelling circumstances" justifying an independent grant of employment authorization. The authorization is good for one year and can be renewed in one year increments in limited circumstances.

  • EAD Processing and Renewals. The new rule eliminates the requirement that the USCIS process employment authorization applications within 90 days. At the same time, the rule adds provisions allowing for automatic extension of employment authorization for up to 180 days for certain workers who file renewal requests before EAD expiration.

  • H-1B Clarifications. The new rule addresses various policies and procedures relating to H-1B petitions, including the process for counting workers against the H-1B cap and for determining which H-1B workers are exempt from the H-1B cap, and the ability of H-1B workers to extend their H-1B status beyond the initial six-year authorized period.

[1] These grace periods are already available to workers in the H-1B, P, and O categories.

© 2020 Varnum LLP


About this Author

Kimberly A. Clarke, Varnum, Immigration Lawyer

Kim focuses her practice on immigration matters, including nonimmigrant petitions, both employment- and family-based permanent residence applications, expatriation and foreign visa issues. She has developed a strong background in the area of worker verification issues and managed clients through internal and agency Form I-9 audits, USICE compliance investigations and civil criminal charges.

In addition, Kim maintains a specialty practice of consultation with agricultural clients and handles various agricultural labor and employment issues such as compliance with...

Nina A. Thekdi, immigration lawyer, Varnum

Nina focuses her practice on business and family-based immigration matters.  Her experience encompasses nonimmigrant visa petitions including H-1B visas, L-1A and L-1B visas, TN visas under the NAFTA treaty, and O-1 visas. She also assists clients with employment-based permanent residence petitions including the labor certifications process, EB-1 extraordinary ability, EB-1 outstanding professor and researchers and EB-1 multinational managers and executives petitions; family-based permanent residence applications; naturalization applications; and foreign visa issues.   She guides clients through the process of obtaining short-term visas and permanent residence status for skilled personnel, including technical professionals, accountants, scientists, managers and executives.  Nina also provides counsel regarding effective immigration compliance programs.