The United States Citizenship and Immigration Services (USCIS) has published its long-awaited “High-Skilled Nonimmigrant Workers” regulation today, Nov. 18, 2016. This regulation was proposed on Dec. 31, 2015. It will become effective 60 days from today (on Jan. 17, 2017). Among other things, the regulation does the following:
- It creates a 60-day grace period for E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN workers whose employment has terminated (so long as their authorized validity period has not ended). Individuals will be entitled to this grace period for each authorized validity period the individual receives.
- It creates an additional 10-day grace period for E-1, E-2, E-3, L-1 and TN workers to enter the U.S. before their authorized employment begins and to leave the U.S. after the end of their authorized employment validity period. Similar grace periods are already available for H-1B, O and P nonimmigrants.
- It provides for the automatic extension of many expiring Employment Authorization Documents (EADs) for up to 180 days if a renewal application was filed on a timely basis. This is a significant relief for EAD holders whose employment authorization, under current law, would cease when the EAD expired, even if the person had timely filed an extension application. It does not appear that this relief extends to EADs for H-4 spouses, because their employment authorization is based on the spouse’s H-1B status extension.
- It confirms that foreign nationals will retain their priority dates and may transfer those dates to new and subsequently approved petitions unless the initial Form I-140 is revoked for fraud, willful misrepresentation of a material fact, invalidation or revocation of the labor certification, or material error.
- It creates a new form – Supplement J to the Form I-485 – that foreign nationals must use to demonstrate continuing eligibility to adjust status (after their adjustment of status application has been pending for 180 days).
- It allows foreign nationals in E-3, H-1B, H-1B1, O-1 or L-1 status who have an approved Form I-140 petition but whose priority dates are not current to obtain EADs if they can show “compelling circumstances.” (This is an undefined term but one that USCIS describes as “particularly difficult situations” which “may have forced individuals on the path to lawful permanent residence to abruptly stop working and leave the United States.” Examples given by USCIS include serious illness or disability and employer retaliation against the worker.)
- It codifies many policies that were not in the regulations so that the policies are now “the law.”