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All in a Day's Work® - Insights on Labor & Employment Law

USCIS issues final rule that will codify several positive improvements for foreign employees and their employers

immigration lawUnited States Citizenship and Immigration Services (USCIS) issued a proposed rule on Dec. 31, 2015, and recently issued the final regulation which is scheduled to take effect on Jan. 17, 2017. The final regulation makes several changes that will benefit employees navigating the immigration process as well as their employers. Please note that while the regulation takes effect on Jan. 17, 2017, a new administration will take office on Jan. 20, 2017. We will continue to monitor the regulation and any policy guidance issued going forward.

Automatic Employment Authorization Document (EAD) validity extension for individuals with employment-based adjustment of status applications pending

Individuals with an employment-based adjustment of status application pending will face a lower risk of lapsed work authorization while extending an EAD. The proposed rule would provide for a 180-day extension of the validity period of the current EAD, as long as the extension application for a new EAD is filed timely (in other words, before the EAD expires). This change is helpful because of USCIS processing delays with regard to EAD adjudications. Now, if USCIS is delayed in issuing the new EAD, the individual can continue working past the expiration date on the old EAD, for up to 180 days if necessary, until the new EAD is issued. This change would apply to the principal employee and their family members. In addition, individuals will be able to apply for the extension up to 180 days before the current EAD expires. Currently, you can’t file for the extension more than 120 days before the expiration date. This change applies to all individuals who have an expiring EAD.

EAD will be issued to certain foreign nationals in cases of compelling circumstances

Certain individuals in E-3, H-1B, H-1B1, L-1 or O-1 non-immigrant status may be able to obtain EADs (valid for one year) if they are the beneficiaries of an approved immigrant petition and they are able to demonstrate compelling circumstances. Compelling circumstances could include a serious illness in the family that causes the employee to have to change their employment situation, employer retaliation against the employee, significant disruption with the employer, other substantial harm to the employee, etc. This option does not apply to every individual who is employed and has an approved immigrant petition. There must be compelling circumstances involved, and those types of situations will be limited in scope and determined on a case-by-case basis.

Definition of nonprofit affiliation with an institution of higher education for purposes of H-1B cap exemption is broadened

USCIS is expanding the current definition of certain H-1B cap-exempt entities by including nonprofit entities that have entered into formal written affiliation agreements with institutions of higher education that have established active working relationships with the institutions of higher education for the purposes of education or research, and a fundamental activity of the nonprofit entity is to directly contribute to the research or education mission of the institution of higher education. This broader definition will be especially helpful to nonprofit health care providers and hospitals that have residency programs in partnership with institutions of higher education. The broader definition will help to remove uncertainty and is more inclusive than the old definition that USCIS utilized when making cap-exempt determinations.

Withdrawal of immigrant petition by prior employer does not prohibit employee from taking advantage of certain immigration benefits that derive from approved petition

The rule protects employees when they switch employers and have an approved immigrant petition that has been approved for more than 180 days. In those cases, if the employee leaves his or her current employer and moves to a new employer, and the old employer withdraws the immigrant petition (for reasons other than fraud or misrepresentation) or goes out of business, the employee will still be able to keep his or her priority date from the old petition (which helps keep their place in line for permanent residence). In addition, the employee will be able to use the prior approval for purposes of job portability if their adjustment of status application has been pending for more than 180 days, and he or she will be able to use the prior approved immigrant petition to obtain extensions of their H-1B status as needed.

60-day grace period added for certain non-immigrant workers after their employment ends to allow them time to find new employment or settle their affairs before departing

The proposed rule would authorize a one-time 60-day grace period for individuals in E-1, E-2, E-3, H-1B, L-1, O-1 and TN if their employment suddenly ends during the period of petition validity. The 60-day grace period could be used by the individual to seek new employment in their current status if possible, change their status to a different classification, or make preparations to depart the United States without being considered out of status, like they would be under current law. The 60-day grace period would also apply to dependents of the principal employee. In addition, the regulation gives USCIS the ability to add 10-day grace periods before and after the validity period for individuals in E-1, E-2, E-3, L-1 and TN status. Current 10-day grace periods already are possible for individuals in H-1B, O and P classifications. Please note that these grace periods are subject to USCIS discretion and are not automatically given to every individual.

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