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New USCIS Regulations Effective In January

December 21, 2016

New USCIS Regulations will go into effect on January 17, 2017 both codifying existing guidelines and introducing new rules.  The first three items below are codified existing policies, whereas the remaining items constitute new law.

  • A foreign national whose I-140 petition has been approved for at least 180 days will not have that petition automatically revoked if the employer who filed the I-140 petition goes out of business or withdraws the petition.  However, the foreign national will need a new job offer or a new I-140 petition to obtain employment-based permanent residence.
  • If an employer withdraws its I-140 petition, the beneficiary can nevertheless extend an H-1B in three-year increments beyond the sixth year and can use the priority date for a subsequent I-140 petition, unless the revocation was based on fraud, material misrepresentation, invalidation or revocation of the underlying labor certification, or material USCIS error.
  • The beneficiary of a pending I-140 can move to a new employer after the beneficiary’s adjustment of status application has been pending for at least 180 days, provided that the pending I-140 petition was approvable when filed and remained approvable for 180 days after the filing of the adjustment application.
  • E-3, H-1B, L-1, and O-1 nonimmigrants with an approved I-140 petition are eligible for a one-year employment authorization document if their priority date is backlogged and they can show compelling circumstances, such as significant disruption to the employer, for employment authorization.
  • E, H-1B, L-1, O-1, and TN nonimmigrants whose employment is terminated early will receive one grace period of up to 60 days during each validity period to allow them to extend, change, or otherwise maintain status or, in the H-1B context, to port to new employment. Employment is not authorized during the grace periods, except for H-1B foreign nationals porting to new employment.
  • E, L-1, and TN nonimmigrants will receive a 10-day grace period before and after their validity period, as is currently available to H-1B nonimmigrants. They will be able to enter the United States 10 days before their start date to prepare for employment, and will have 10 days at the end of their period of stay to take action to extend, change, or otherwise maintain status, or prepare for departure from the United States. Employment is not authorized during the grace periods, except for H-1B foreign nationals porting to new employment.
  • An automatic 180-day work authorization extension applies to foreign nationals who timely file for EAD renewal, including adjustment applicants. However, the automatic extension is not available to H-4, L-2, or E nonimmigrant spouses.
  • The USCIS is no longer required by law to process EAD applications within 90 days nor to grant interim work authorization to those with an EAD application pending for more than 90 days.  USCIS has indicated that it will accept EAD renewal applications up to 180 days before expiration (rather than 120 days under the old policy).