USCIS Immigrant Flexibility Rule: What You Need to Know

HIGHLIGHTS
  • USCIS I-140 employment authorization
  • H-1B licensure
  • Porting an I-485 to a new employer
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USCIS announced a set of rules aimed at improving the working conditions for high-skilled nonimmigrant workers. The rules go into effect on Jan. 17, 2017.

Major changes and confirmation of existing known practices that may impact your organization are highlighted below.

USCIS I-140 Employment Authorization

Individuals in E-3, H-1B, H-1B1, O-1 or L-1 status may now obtain an employment authorization document (EAD) with an approved I-140. In order to qualify, the person’s priority date must not yet be current per the Visa Bulletin and they must be able to demonstrate “compelling circumstances.” USCIS has not clearly defined compelling circumstances, but some examples they provided include disability or serious illness of the applicant or their dependent; employer retaliation; substantial harm to the applicant; or significant disruption to the employer. If you or your employee qualify, the EAD card could be valid for up to one year. Family members of the visa holder may also qualify.

10-Day and 60-Day Grace Periods

Individuals in H-1, O, P, E-1, E-2, E-3, L-1 and TN status are now given a 10-day grace period before their petition validity date to prepare themselves for living in the United States, and after their petition end date to prepare to leave the United States and change and/or extend their status.

Individuals in H-1B, H-1B1, E-1, E-2, E-3, L-1, O-1 and TN status are now given a 60-day grace period if they lose their job, in order to change their status or find a new employer. This 60-day grace period is limited to the petition end date or when the individual is terminated from their job, whichever is shorter. An H-1B worker may also begin working with the new employer upon the filing and receipt of their new petition, if it is filed within the 60-day grace period.

EAD Extensions and Automatic Renewals

USCIS will allow applicants to file their EAD renewals 180 days prior to their current expiration, date instead of the previous 120 days. In addition, USCIS will publish a notice periodically to allow individuals in designated statuses to file their EAD renewal along with their nonimmigrant status extension.

Furthermore, USCIS will allow an automatic 180-day extension to the EAD validity, provided that (a) the renewal is filed for the same category in which the EAD was issued; (b) the renewal is filed before the expiration date and (c) there is no need to approve another petition in order for the EAD to be issued (such as an H-4 or L-2 extension).

Additionally, USCIS will no longer commit to approving EAD applications within 90 days.

I-140 Validity

I-140 approval notices will remain valid even if an employer decides to withdraw the I-140, only if the application has been approved for at least 180 days. However, the priority date will be lost if the I-140 is revoked due to:

  • Fraud
  • Willful misrepresentation of a material fact
  • Invalidation or revocation of a PERM
  • Material error in the individual’s I-140 petition

USCIS Immigrant Flexibility Rule: What You Need to KnowTraveling with a pending H-1B Extension

USCIS confirmed that a person may travel with a current H-1B extension petition pending, provided they re-enter the United States with a valid passport, valid H-1B visa, their prior I-797 approval notice and the I-797 receipt for the pending H-1B extension application.

H-1B Extension Beyond Max-out Date

A person may extend their H-1B in one-year increments as long as their ETA 9089 application or I-140 application was filed at least 365 days before the requested start date listed in the I-129 petition. A person will lose this ability if they have failed to adjust their status to the permanent resident within one year of the green card being available. They may also take advantage of this benefit if they are not currently in H-1B status, or if they are not in the United States.

Porting an I-485 to a New Employer

A person may continue to port their I-485 application to a new employer if (a) the I-485 has been pending for at least 180 days, and (b) the green card position and new position are the same or substantially similar. USCIS will require the submission of the Supplement J to form I-485 when submitting these requests, which is a new requirement.

USCIS Immigrant Flexibility Rule: What You Need to KnowH-1B Cap-Exempt Institutions

USCIS has expanded who may be considered a “cap-exempt institution.” A nonprofit entity related to or affiliated with an institution of higher learning is considered cap-exempt in certain scenarios. This has now expanded to include nonprofits that have a written agreement with an institution of higher learning establishing an active working relationship for purposes of research and education, so long as the nonprofit conducts a fundamental activity contributing to the research or education mission of the institution.

In addition, USCIS is expanding its definition of Government Research Organization to include state and local government entities, in addition to the Federal government.

H-1B Licensure

USCIS generally requires that a foreign national provide proof of licensure to practice in certain professions if the laws of the state containing the work location require that a license is acquired. USCIS will now provide an exception to this in states where obtaining the license requires a social security number, proof of work authorization or similar technical requirement. USCIS will still approve these petitions without the license for a period of one year and the foreign national would submit their license as part of their extension petition.

USCIS will continue to approve H-1B petitions in those states which allow nonlicensed individuals to work under the supervision of a licensed individual, such as an engineer.