H-1B Final Rule - 60 day Grace Period for H-1B and More!
How the 2017 Federal Register Final Rule Impacts You
1. H1B Grace Period
Possibly the most beneficial change found in the 2017 Federal Register final rule is the addition of grace periods for nonimmigrants with O-1, H-1B, L-1, TN, E-1, E-2, or E-3 class visas.
Unemployment can often be sudden and unexpected. Whether your employer is no longer able to continue business or your relationship has been terminated for another reason, unemployment immediately makes you “out of status“. This can greatly affect your ability to return to the U.S. after being abroad.
Fortunately, the final rule provides highly-skilled working visa holders with a 60-day grace period following the end of their employment. The grace period means that you will not be considered “out of status” for almost 2 months following your unemployment. This will give you the opportunity to look for other employment or apply for a visa change of status.
It is important to note that only one grace period will be extended per visa validation period. Also, if the validation period expires before the 60 days and you are still in the U.S., you will be considered “out of status”.
The final rule also amends the previous wording concerning the 10-day grace periods that extend before and after your visa validation period. The existing phrase “to prepare for departure from the United States or to seek extension or change of status based on a subsequent offer of employment” will be removed from 8 CFR 214.1 (l)(1). This precondition has been deemed unnecessarily limiting and its removal gives the beneficiary more freedom to use the given 10-day grace periods.
In addition to this, the rule will add the phrase ‘‘or otherwise provided status’’ after ‘‘an alien admissible in E–1, E–2, E–3, H–1B, L–1, or TN classification and his or her dependents may be admitted to the United States’’. This will allow these nonimmigrant visa holders to take advantage of the 10-day grace period from the moment they are admitted to the U.S. or when they receive an extension of stay or change of status approval.
2. Other H1B Benefits
Cap exemptions
Petitioners for H1B visas reap several rewards through the 2017 Federal Register final rule. The first is a clarification and expansion on what are defined as “cap exempt” circumstances.
The final rule broadens the definitions of a “related or affiliated nonprofit entity” and a “governmental research organization” as laid out in 8 CFR 214.2(h)(8)(ii)(F) and (h)(19).
To qualify as a nonprofit organization, an entity needed to prove that their “primary purpose” is to “directly contribute to the research or education mission of the institution of higher education”. The final rule will amend the phrase, replacing the restrictive “primary purpose” with the more liberating phrase “fundamental activity”.
The rule will also expand the definition of “governmental research organization” to include state and local research organizations as well as federal entities, thereby encompassing more entities that qualify for cap exemption.
Lastly, the final rule clarifies that only one of the requirements in 8 CFR 214.2(h)(19)(iii)(B) must be met to qualify for cap exemption. This will allow more H1B visa petitioners to be considered “cap exempt” and make it easier for employers to hire highly-skilled foreign workers.
H1B Licensing
The final rule will also broaden the amount of evidence that will be examined when a petitioner that does not yet have a license applies to work in a field that may require a license. In most cases, a temporary approval will be issued until you can obtain the license.
For example, if you were applying to work as a nurse in the U.S. but would not receive your license until after you entered the country due to technical reasons, the USCIS will be more flexible when it considers your approval.
The rule also allows for workers who are unlicensed to work in their field in the U.S. under the direct management of a licensed supervisor or senior member. This is only provided to applicants who are eligible for the H1B visa in all other areas.
Extension of Stay
Usually, an H1B visa grants you up to 6 years in the U.S. The 2017 Federal Register final rule makes it easier for visa holders who are attempting to become legal permanent residents to extend their stay beyond the typical maximum amount of 6 years.
This will be done by making it so that the labor certification or I-140 no longer needs to be filed 365 days before the end of your 6-year validation period. Instead, the section is clarified to mean that you must file those documents 365 days before you would become exempt from the extension limit.
This extension will also allow the dependents of H1-B visa holders to extend their stay as long as they have H4 nonimmigrant status.
Portability
Under these new changes, an employer will be able to file successive H1B petitions for portability or “bridge petitions”. However, if one extension of stay petition is denied, the successive petitions will also be denied. If this happens, you will be required to leave the country when your I-94 expires.
The final rule addresses H1B visa holder’s ability to change employment in the same occupational category. It does this by clarifying that the form I-485 Supplement J will be the document that is necessary to prove that you are still eligible to have your status adjusted with a new employer.
It allows for a broader selection of possible evidence under the phrase “material and credible documentary evidence, in accordance with form instructions”. Previously, only evidence provided by a federal agency would be accepted. This evidence can be submitted alongside the Supplement J.
The final rule also mandates that an I-140 form must be approved before your portability request will be considered. If you are able to pay the fee when filing the petition and all other eligibility requirements are met, your I-140 may be approved.
WHISTLE-BLOWER Provisions
In addition to this, H1B holders that give the USCIS information that assists with investigating infringements of the Labor Condition Application will receive a degree of protection. If you have failed to maintain H1B status, you will be able to provide evidence that it was on account of “extraordinary circumstances.”
3. Certain Dependents Can Work in the U.S.
The 2017 Federal Register final rule expands the situations that would allow immigrant visa holders to work in the U.S. Because of statutory limitations on the amount of visas that can be obtained, many principal L-1, H1-B, O-1, or E-3 holders and their dependents are unable to work in the U.S.
After the final rule, however, those visa holders, their spouses, and their dependents will all be able to apply for work through Employment Authorization Documents (EAD). This offer only extends to those applicants who can prove that they have “compelling circumstances” for this exception.
The EAD is usually valid for one year. However, it can be extended in one-year increments provided that you can provide evidence that the “compelling circumstances” are still applicable.
Situations that are defined as compelling circumstances will be decided by the USCIS on a case-by-case basis. Here are some circumstances that may qualify:
If a serious illness or injury to you or your family forces you to relocate, change employment, or rely on an auxiliary income.
If a lack of EAD will be detrimental to your employer and may incur retaliation.
If your family will experience substantial hardships without EAD.
Abusing or otherwise fraudulently taking advantage of the “compelling circumstances” provision may cost you your nonimmigrant status and compromise your ability to transfer your status to lawful permanent resident.
4. Undetermined EAD Processing Time
The final rule releases the USCIS of the obligation to approve or reject EADs and renewals withing 90 days of filing. This will most likely result in longer processing times and delayed responses.
To counteract this, the USCIS may allow you to submit an EAD renewal filing up to 180 days before your EAD expires instead of the usual 120-day maximum.
In addition to this, the rule will automatically extend the validation period of each EAD for 180 days past its expiration provided that you have a timely filed renewal petition and you are eligible for employment up to the extended validation date.
5. Your Petition is still Valid if your Employer Withdraws or Terminates
Currently, having your employer either withdraw your petition or end their business will cause your I-140 to be revoked. Now under the 2017 Federal Register final rule, immigrant visa petitions will be protected regardless of what the petitioner does. This will give potential visa holders greater security and flexibility in locating new sponsoring employers for their petition.