New USCIS Rule Will Provide Greater Job Flexibility for Foreign National Workers

U.S. Citizenship and Immigration Services (“USCIS”) has published a final rule, effective January 17, 2017, which will broaden work flexibility for foreign nationals employed in the U.S. While much of the rule memorializes long-standing USCIS policy, several provisions reflect significant changes to agency practice:

  1. One-Year Employment Authorization in Compelling Circumstances. Foreign nationals who are pursuing permanent residence (a green card) but waiting for a space in the green card quota to become available will be eligible to apply for employment authorization, so long as they can demonstrate ‘compelling circumstances.’ This provision will particularly help foreign workers in L-1 visa status, a temporary status limited to between 5 and 7 years, who may face a wait for a green card of over a decade.
  2. 60-Day Grace Period Following Employment Termination. Under current law, some foreign nationals working in the U.S. become immediately deportable when their U.S. employment terminates. The new rule provides a 60-day grace period to certain foreign national employees, following termination of their U.S. employment. During this grace period, foreign nationals may remain in the U.S. to seek alternate employment, without risking a violation of their status or needing to file an application to change to visitor status.
  3. Automatic Extension of Work Authorization. Under the new rule, a foreign national working in the U.S. pursuant to an Employment Authorization Document (EAD) will receive an automatic 180-day extension of work authorization by timely filing an extension application. USCIS is also repealing the regulatory requirement that it must adjudicate EAD applications in 90 days.
  4. H-1B Job Changes and Extensions Beyond Six-Year Limit. Memorializing long-standing USCIS policy, the new rule allows foreign nationals in H-1B status to begin work in a new position, for the same or a new employer, upon the filing, rather than approval of an H-1B petition with USCIS. Further reflecting existing USCIS practice, the new rule allows H-1B workers facing long permanent residence backlogs to continue extending their H-1B status past the normal six-year limit.
  5. H-1B Quota Exemption for Certain Employers. There are a limited number of H-1Bs available each year, but some employers are not subject to this limitation. The new rule provides additional guidance regarding which employers are exempt from the annual H-1B quota. Generally, the exemption applies to colleges, universities, and not-for-profit organizations affiliated with a college or university. The rule also provides guidance on concurrent employment, which allows an H-1B worker to work for a non-exempt employer if concurrently employed by an exempt employer.
  6. Increased Flexibility for I-140 Petitions. The new rule provides greater job flexibility for foreign nationals sponsored for permanent residence by a U.S. employer. For example, sponsored employees with I-485 green card applications pending for 180 days may move into similar jobs with the same or different employer, without jeopardizing their I-485 green card application. The rule also provides foreign workers with greater protection against withdrawal of an approved sponsorship petition filed by a previous employer.

If you have any questions or are interested in how these regulations may benefit your company and employees, do not hesitate to contact any member of our firm’s Immigration Practice Area at (585) 232-6500.

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