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DHS Finalizes Rules on Immigrant and Non-Immigrant Visas

Written By The Shapiro Law Group on December 06, 2016

In November, the Department of Homeland Security (DHS) issued its final rules on the employment-based, non-immigrant and immigrant visa programs available in the United States. The changes were intended to make it easier for US employers to hire foreign citizens eager to work in the country. These rules will come into effect on January 17th, 2017.

Non-Immigrant Rule Changes

10-Day Grace Period

Non-immigrants will receive a grace period of 10 days on both the entry and departure dates on their visas. These rules will apply to individuals holding E-1-3 visas, L-1, or NAFTA Professional (TN) visas. This change will make it easier for non-immigrants to secure housing prior to commencing employment. It will also make it easier for non-immigrants to finalize their business affairs in the US prior to returning home.

60-Day Grace Period

Non-immigrants who hold E-1, 2, or 3 visas, and those who hold H-1B or H-1B1, L-1, O-1, or NAFTA Professional (TN) visas can stay for up to 60 days past their employment end date. This grace period makes it possible for non-immigrants to seek alternative employment or visa sponsorship. Those wishing to stay can begin working for their new employer as soon as they file the non-immigrant petition. The rule also eliminates the need for non-immigrants to return home and visit the US Consulate in their home country before returning to the US.

Licensure for H1B Non-Immigrants

The new rules will make it easier for H-1B visa holders working in professions requiring professional licensure. Under the new rules, non-immigrants will not require state licensure in the US so long as they work under the direct supervision of a licensed professional. Employers must provide evidence that they are in compliance with state licensing requirements in order to take advantage of this rule.

Automatic Employment Authorization Document (EAD) Renewal Extensions

Individuals under temporary protected status who file their EAD renewal in a timely fashion will receive an automatic EAD extension of 180 days.

Processing Time for I-765s

The 90-day processing time for applicants filing EADs has been eliminated. The new guidelines merely require the US Customs and Immigration Service (USCIS) to process these within a “reasonable time.” It remains to be seen whether this relaxed rule will lead to longer processing times for those waiting for their applications to be reviewed.

Immigrant Visas

Priority Dates

The priority date will be set on the date a petition is filed and accepted for processing with the Department of Labor. For those filing I-140 petitions that don’t require a labor certification from the Department of Labor, the date set will be the date the paperwork was filed with USCIS.

Revocation of I-140 Petitions

I-140 petitions will remain valid if an employer files to withdraw them so long as the approval has been in effect for 180 days or longer. They will also remain effective if an adjustment of status has been made in accordance with the I-140 petition. However, the petition may be revoked if evidence emerges that brings into doubt work experience or other facts submitted in the petition. It may also be revoked if the information provided during the interview contradicts facts and evidence submitted within the petition, or if there is a material change in the employee’s circumstances or the number of visas available.

Adjustment of Status

Immigrants wishing to change their status based on an I-140 petition can do so if there is a valid offer of employment at the time the petition is filed. This employment must still be in effect at the time the petition is adjudicated by USCIS. The USCIS may request petitioners to provide evidence documenting that their employment is continuing or that they have a new job offer from their current employer or a new employer that offers identical or similar employment. Additionally, petitioners are required to show that their employer has the financial ability to pay the offered wage prior to the time the petition is reviewed.

EAD Eligibility

Eligible family members of those holding H-1B visas, or EB-1, 2, or 3 visas can apply for EAD status based on the status of the principal beneficiaries I-140 petition. If the principal beneficiaries application is approved, family members can submit their requests concurrently.

Immigration attorneys in Chicago can help individuals process their paperwork and petitions based on these rule changes. At the present time, it cannot be said whether the incoming administration will request USCIS to make any changes to these most recent rule changes. However, it is likely that the incoming administration will make considerable changes to US immigration policy.

For this reason, it is advisable for individuals to submit their paperwork as soon as possible. Doing so will make it more likely that their application will be considered and reviewed based on current immigration law.