New regulations comes as a welcome relief to high-skilled workers

The are new regulations on workers permits from H-1B visas to O-1 nonimmigrant visas.

Skilled workers will benefit from new regulations

Effective January 17, 2017, new immigration regulations will provide benefits to many high-skilled workers who are already in the long queue for employment-based permanent residency. In addition to clarifying and affirming long-standing Department of Homeland Security (“DHS”) practices relating to H-1B extensions and exemptions, certain nonimmigrants will have two 10-day grace periods on either end of their authorized period of stay, while others will gain a 60-day grace period at the end. The final rule also provides for a 180-day automatic extension of the employment authorization document if a timely application for renewal is filed.

Highlights of Changes

10-day Nonimmigrant Grace Periods
Nonimmigrants in E-1, E-2, E-3, L-1, and TN status will now have a 10-day grace period to enter the U.S. before starting their job and another 10-day grace period to wrap up their affairs before leaving. (Current regulations indicate that an officer at the border has discretion to grant a 10-day grace period at the end of one’s H-1B period of stay. This was not always granted, however.)

60-day Nonimmigrant Grace Period
A welcome relief to many who may find themselves suddenly terminated is a 60-day grace period granted to nonimmigrant workers in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN classifications. This means that individuals who have been terminated by their employers will now have up to 60 days to have a new employer file a petition on their behalf. (This is similar to the 60-day grace period currently afforded F-1 international students.)Skilled workers

Automatic Extension of EADs
While eliminating the rule that requires DHS to adjudicate an application for employment authorization document (“EAD”) within 90 days, the regulations allow for an automatic 180-day extension where a request for a renewal of an EAD under the same category has been timely filed.

Retention of Employment-Based Immigrant Visa Petitions
The new regulations provide that a Form I-140 that had been approved for 180 days or more will remain valid and not automatically revoked based on the withdrawal by the petitioner or the termination of the petitioner’s business, unless it was revoked for fraud, willful misrepresentation of a material fact, the invalidation or revocation of a labor certification, or material error.

Eligibility for Employment Authorization in Compelling Circumstances
Where an individual is in E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status, has an approved Form I-140, and who is awaiting an immigrant visa number to complete her permanent residency process, the individual is eligible for an EAD under “compelling circumstances.” (Currently, an individual must wait until there is an immigrant visa number before she is able to file Form I-485 adjustment of status application and concurrently request an EAD. For some, this new rule speeds up the process for obtaining an EAD by years.)

H-1B Approvals without Meeting Licensing Requirement
Under normal circumstances, an H-1B individual must be qualified for the specialty occupation at the time of filing the H-1B petition. This includes having obtained the degree and any necessary licenses to perform the duties of the specialty occupation. In the past, however, DHS has sometimes made exceptions and approved H-1B petitions where the individual did not yet have her license if she could show that but for a technical reason she could not obtain a license necessary to perform the specialty occupation. The new regulations affirm this practice and also explain the evidence needed meet the exception.

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