New USCIS Rule Amending Several Employment-Based and Nonimmigrant Visa Programs Will Take Effect on January 17, 2017

Beginning on January 17, 2017, the U.S. Department of Homeland Security (DHS) will implement a new rule that amends certain regulations relating to employment-based immigrant and nonimmigrant visa programs.  The rule's goal is to ease U.S. employers’ ability to hire and retain high-skilled personnel who have been granted employment-based immigrant visas and are waiting to become lawful permanent residents. The rule effectively improves the job mobility process for those workers by allowing them to accept promotions, change employers, change positions with current employers, and pursue other employment opportunities.

Below is a summary of several key components to the new rule:





Grace Periods for Nonimmigrant Workers

There is no grace period.

One grace period of up to 60 days that preserves the status of E, H-1B, H-1B1, L-1, O-1, or TN nonimmigrants whose employment ends before the authorized period of stay.

Approved E, L-1, and TN nonimmigrants may have a 10-day grace period before and after the validity period of their visa.

Employment is not authorized during the grace period except for H-1B nonimmigrants who are porting to new employment.

Portability and Priority Date Retention for I-140 Beneficiaries

The rule did not cover this issue.

An I-140 beneficiary whose petition is revoked by the employer will be able to retain the same priority date for a later I-140 petition as long as the petition was not revoked for fraud, willful misrepresentation of a material fact, the invalidation of a labor certification, or material error.

An individual whose I-140 petition has been approved for at least 180 days will not have the petition automatically revoked if the employer goes out of business or withdraws the petition.

Improves the ability to accept promotions, change employers, or pursue other employment opportunities without fear of losing place in line for immigrant visas.


In all cases, individuals will need a new employment offer or new I-140 petition to obtain employment-based permanent residence.

Employment Authorization Documents: Automatic Extensions and Application Processing

Requirement that USCIS must process EAD applications within 90 days is eliminated. If the employment authorization document was not issued by USCIS, applicants could request an interim EAD card.

Provides an automatic 180-day work authorization extension to certain foreign nationals who file for EAD renewal. Those eligible for an automatic renewal include: adjustment of status applicants, applicants for extension of Temporary Protected Status, and certain individuals under the Violence Against Women Act.

Automatic extension is not available to H-4, L-2, or E nonimmigrant spouses seeking renewal of employment authorization.


H-1B Cap Exemption for Certain Classes of Employer

Under the current policy, only affiliated or related nonprofit entities associated with an institution of higher education, through shared ownership or control by the same board or federation operated by an institution of higher education, or attached to an institution of higher education as a member, branch, cooperative, or subsidiary, qualify for cap-exempt status.

Expands the definition of the term “related or affiliated nonprofit entity” and clarifies that nonprofit entities may qualify for the cap exemption if a “fundamental activity” of the nonprofit is to directly contribute to the research or education mission of the institute of higher education.

Will allow for more nonprofits to take advantage of the exemption.

Employment Authorization Document for Certain Approved I-140 Beneficiaries

The rule did not permit EADs for beneficiaries of approved I-140s.

Permits certain I-140 beneficiaries with E-3, H-1B, H-1B1, L-1, and O-1 nonimmigrant status to apply for separate employment authorization for a limited period in the case of compelling circumstances that justify the issuance of employment authorization.


Job Portability for H-1B Nonimmigrant Workers

The rule did not cover this issue although DHS policy permitted portability.

Codifies existing longstanding DHS policies. Allows H-1B visa holders to accept new or concurrent employment upon filing of an H-1B portability petition.

H-1B employers may file successive H-1B portability petitions (or “bridge petitions” on behalf of immigrant workers).


Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.