Reminder: New DHS regulations in Effect

18. Jan. 2017

The U.S. Department of Homeland Security’s (DHS) rules intended to benefit U.S. employers and foreign workers went into effect Tuesday, 01/17/2017. 

For the most part, the new rule only codifies DHS policies and practices that are already in place. Additionally, the new rules streamline processes for employer sponsorship of permanent residency (LPR), increase job portability, provide stability and flexibility to foreign workers, and provide more transparency and consistency in the application of DHS policies and practices.  

I-140 Priority Date Retention and Portability

  1. An I-140 beneficiary whose petition is revoked can use the priority date for a subsequent I-140 petition, unless the reason for revocation was fraud, material misrepresentation, invalidation or revocation of the underlying labor certification or material USCIS error.
  2. An I-140 petition, approved for 180 days or more, will not be automatically revoked if the employer goes out of business or withdraws the petition. Although the I-140 may remain valid, it cannot be used for I-485 filing with a different employer.
  3. A beneficiary of a pending I-140 will be able to port to new employment after his or her adjustment of status application has been pending for 180 days or more, as long as the pending I-140 petition was approvable when filed and remained approvable for 180 days after the filing of the adjustment application.

New Supplement J to Form I-485 for Job Portability

An applicant whose I-485 has been pending for at least 180 days will need to submit a new supplement J to request portability for a new position in the same or similar occupational classification.

EAD for Approved I-140 Beneficiaries with Compelling Circumstances

The regulation allows E-3, H-1B, H-1B1, L-1 and O-1 nonimmigrants with an approved I-140 petition to apply for a one-year employment authorization document (EAD) if their priority date is backlogged and they can show compelling circumstances.  The regulation does not define compelling circumstances, but provides an illustrative list of circumstances that may be considered compelling: serious illness or disability to the worker or a dependent family member, employer retaliation, substantial harm to the applicant, or significant disruption to the employer. 

Nonimmigrant workers who take advantage of the compelling circumstances EAD will lose their current nonimmigrant status and may not be able to adjust to LPR status in the U.S.  They will have to go through consular processing.

Automatic Renewal (Grace Period) of EAD for I-485 Applicants for up to 180 Days

AOS, Asylum, TPS, and VAWA applicants who timely file for EAD renewal now enjoy an automatic extension of work authorization of 180 days. The automatic extension is not available for renewals of H-4, L-2 or E nonimmigrant EADs.  

The new regulation also eliminates a rule that requires USCIS to process EAD applications within 90 days.  However, DHS will now allow EAD applicants to apply for extensions up to 180 days prior to the EAD expiration date.  Previous policy did not allow renewal applications until the EAD is expiring within 120 days.

60-Day Grace Period for Certain Nonimmigrant Workers

H-1B, H-1B1, L-1, O-1, TN and E nonimmigrants whose employment is terminated early will be allowed one grace period of up to 60 days during each validity period, to allow them to extend, change, or otherwise maintain status. No work authorization during the 60-day period.

10-Day Grace Period for Certain Nonimmigrant Workers

TN, L-1 and E nonimmigrants now receive a 10-day grace period before and after their validity period.  That is, one may enter the U.S. up to 10-days before his/her nonimmigrant validity period begins and exit up to 10-days after one’s nonimmigrant status expires.  Previously, this had only been available to H-1B nonimmigrants. Employment is not authorized during the grace periods.

Additional H-1B Related Provisions

  • An approved I-140 petition, withdrawn 180 days or more after approval, will remain eligible for a three-year extension unless it was withdrawn for fraud, material misrepresentation, material USCIS error, or revocation or invalidation of the underlying labor certification.
  • There is no time limit on recapturing time spent outside the U.S. The time may be recaptured at any time before the worker uses the full period of authorized H-1B admission.
  • Whistleblower protection.  H1B workers are protected in cases of employer retaliation based on reporting a violation of the employer’s obligations under the labor condition application (LCA). The DHS may consider a loss of status in these cases caused by the worker’s termination to be an “extraordinary circumstance,” and therefore grant an extension or change of status.

H-1B without full license. An H-1B petition may be granted if a foreign national may perform the job duties under the supervision of a licensed supervisor, or failure to obtain a license is due to inability to meet technical requirements, e.g. lack of a social security number or employment authorization.