The U.S. Department of Homeland Security (DHS) published a final rule that amends regulations pertaining to certain immigrant (permanent/“green card”) and high-skilled nonimmigrant (temporary) foreign worker sponsorships. The rule takes effect on Jan. 17, 2017.
The final rule incorporates longstanding DHS policies and practices into formal regulations and changes existing regulations to provide stability and flexibility for foreign workers in certain immigrant and nonimmigrant visa categories. Among a number of favorable updates, the new rule, as it applies to first, second and third “preference” green card sponsorships:
1. Grants an automatic extension of certain workers’ employment authorization documents (EADs) for up to 180 days, provided a timely renewal application for employment authorization has been filed.
2. Allows for one-year EADs for certain visa-backlogged green card applicants who can show compelling circumstances.
3. Confirms the ongoing validity of an approved I-140 immigrant petition, despite its withdrawal by the petitioning employer or termination of the petitioning employer’s business after 180 days of approval or 180 days or more after an associated application for adjustment of status has been filed.
4. Defines “same or similar” occupation and further clarifies job portability (particularly important for visa-backlogged green card applicants and their existing or new employers).
In addition, the new rule, as it applies to high-skilled temporary visa workers:
1. Allows workers in E-1, E-2, E-3, L-1 or TN visa status to be granted an initial 10-day grace period to enter the U.S. prior to the start of a work-authorized period to locate housing or otherwise prepare for their U.S. employment and a second grace period of up to 10 days after their work-authorized period to depart the U.S. or take needed immigration status actions if they wish to remain.
2. Provides workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN visa status a welcome grace period of up to 60 days to remain in the U.S. following early termination of their authorized employment to locate a new employer and avoid a lapse in their legal status.
3. Clarifies H-1B portability and H-1B visa cap exemption bases.
This is a summary of the new rule. Employers and HR professionals are advised to evaluate short- and long-term foreign worker staffing needs and assess strategies on a case-by-case basis in light of this new rule through consultation with immigration counsel.