On January 17, 2017, the Department of Homeland Security (DHS) will amend its regulations to improve certain employment-based immigrant and nonimmigrant visa programs. The amended regulations, announced through publication of the agency’s final rule, are designed to improve processes and increase certainty for U.S. employers seeking to sponsor and retain immigrant and nonimmigrant workers, create greater stability and job flexibility for those workers, and increase transparency and consistency in the application of DHS policy related to affected visa classifications.
The following significant changes and clarifications are described in more detail below:
1. In most cases, I-140 immigrant visa petitions that have been approved for 180 days or more will remain valid for supporting three-year H-1B extensions even after employer revocation.
2. Workers holding E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN status will be eligible for up to a 60-day grace period during which they may remain lawfully in the U.S. and seek new employment.
3. Certain applicants, particularly those with pending adjustment of status applications, seeking to renew their EAD cards, will be eligible for an automatic 180-day extension of their work authorization beyond the card’s expiration date while their renewal application is pending.
4. Under limited circumstances, USCIS may approve EAD applications for certain nonimmigrants who have reached specific milestones in the green card process and can “demonstrate compelling circumstances.”
6. Various provisions of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) are codified and clarified, specifically those relating to H-1B recapture and H-1B extensions beyond the six-year limitation.
7. H-1B petitions for jobs requiring licensure must be filed with evidence of a license or evidence that the H-1B worker may fully perform the duties of the position under a licensed supervisor.
9. Employers will now be required to file a new form in order to confirm green card portability.
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