Please note that as this rule was introduced late in the Obama administration, it could be overturned by the new Congress and administration after January 20, 2017.
1/17/2016 original article:
On November 18, 2016, the United States Citizenship and Immigration Services (“USCIS”) will publish a final rule introducing important changes for persons in the employment-based permanent residence process. These changes will expand the class of workers eligible to apply for an Employment Authorization Document (“EAD”), and set guidelines on when employment-based immigrants may retain their “priority date” after departing their employers.
- EAD cards for workers with approved I-140 petitions
The rule permits persons in E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status to apply for an EAD, provided they meet certain conditions:
- The applicant is the beneficiary of an approved employment-based (EB-1, EB-2, or EB‑3) immigrant visa petition,
- The applicant is unable to apply for adjustment of status or an immigrant visa stamp because her priority date is not current under the Visa Bulletin,
- The applicant shows “compelling” circumstances justifying the grant of an EAD.
This last requirement of “compelling” circumstances are described as including:
- serious illness or disability faced by the worker or dependents
- employer retaliation against the nonimmigrant worker
- other substantial harm to the applicant
- significant disruption to the employer
Such highly-discretionary factors to demonstrate “compelling” circumstances make it unlikely many nonimmigrant workers will benefit from this new rule. However, dependent family members (dependent spouses and children) of qualifying applicants may also apply for an EAD. Dependent family members may also apply at the same time as qualifying principal applicants. Qualifying principal EAD applicants and any dependent family members may renew their EADs provided they continue to meet the requirements.
- Grace period of up to 60 days for certain workers whose employment terminates
The new rule provides a new formalized grace period of up to 60 days for certain nonimmigrants (H-1B, H-1B1, O-1, E-1, E-2, E-3, L-1, and TN) whose employment is terminated within the period of their authorized stay. This would make it easier for such nonimmigrant workers to be safely extending their status to accept new employment within the United States, without having to first return to their home country to obtain a new visa.
- Priority date retention even after I-140 petition withdrawal in certain circumstances
Priority dates set by I-140 immigrant visa petitions traditionally remain valid even if an employer were to withdraw the I-140 immigrant petition upon termination of an employee. However, USCIS has in recent years deemed employer-withdrawn I-140 petitions ineligible to allow extensions of H-1B status beyond the 6th year. Under this new rule, H-1B workers can continue to extend their H-1B status beyond the 6th year, even if their approved I-140 petition was withdrawn by their former employer. (Of course, I-140 petitions withdrawn by the USCIS for mistake, fraud, or similar cause would eliminate any priority date or H-1B extension benefit.)
The new rule is slated to go into effect in 60 days after it is officially published. USCIS will likely announce specific application procedures in the coming months. Should you have questions regarding these new immigration rules, please do not hesitate to contact us at office@jackson-hertogs or 415-986-4559.
