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

January 19, 2016

The United States Citizenship and Immigration Services (USCIS) issued a proposed rule on Dec. 31, 2015, that makes several noteworthy changes which will benefit employees navigating the immigration process and their employers. We will briefly discuss some of the more noteworthy proposed changes in this client alert. Please note that the comment period ends Feb. 29, 2016, so it will be several months after that before the final rule is issued. It is possible that some of the changes discussed below could be altered when the final rule is issued. We will monitor the process closely and alert you again when the final rule is issued later this year.

Automatic 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 Employment Authorization Document (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. Under the proposed rule, if the 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 foreign employee and his or her family members.

Definition of nonprofit affiliation with an institution of higher education for purposes of H-1B cap exemption would be broadened – USCIS proposes to expand 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 and (1) have active working relationships with the institutions of higher education for the purposes of education or research, and (2) have established that one of their primary purposes 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 helps to remove uncertainty and appears to be 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 proposes to protect foreign national employees when they switch employers and have an approved immigrant petition that has been approved for more than 180 days. Final adoption of the rule would ensure that if an 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 (1) will still be able to keep his or her priority date from the old petition (which helps keep the employee’s place in line for permanent residence), (2) will be able to use the prior approval for purposes of job portability if his or her adjustment of status application has been pending for more than 180 days, and (3) will be able to use the prior approved immigrant petition to obtain extensions of his or her H-1B status as needed.

60-day grace period added for certain nonimmigrant 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 and TN if their employment suddenly ends during the period of petition validity. The 60-day grace period could be used by individuals 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.

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