NEW REGULATIONS FOR EAD FOR CERTAIN EMPLOYMENT BASED & NONIMMIGRANT VISA PROGRAMS
USCIS has published a final rule to modernize and improve several aspects of certain employment-based nonimmigrant and immigrant visa programs. USCIS has also amended regulations to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents. This rule goes into effect on Jan. 17, 2017.
Among other things, DHS is amending its regulations to:
- Clarify and improve longstanding DHS policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act related to certain foreign workers, which will enhance USCIS’ consistency in adjudication.
- Better enable U.S. employers to employ and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions (Form I-140 petitions) while also providing stability and job flexibility to these workers. The rule increases the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers and pursuing other employment opportunities.
- Improve job portability for certain beneficiaries of approved Form I-140 petitions by maintaining a petition’s validity under certain circumstances despite an employer’s withdrawal of the approved petition or the termination of the employer’s business.
- Clarify and expand when individuals may keep their priority date when applying for adjustment of status to lawful permanent residence.
- Allow certain high-skilled individuals in the United States with E-3, H-1B, H-1B1, L-1 or O-1 nonimmigrant status, including any applicable grace period, to apply for employment authorization for a limited period if:
- They are the principal beneficiaries of an approved Form I-140 petition,
- An immigrant visa is not authorized for issuance for their priority date, and
- They can demonstrate compelling circumstances exist that justify DHS issuing an employment authorization document in its discretion.
Such employment authorization may only be renewed in limited circumstances and only in one year increments.
- Clarify various policies and procedures related to the adjudication of H-1B petitions, including, among other things, providing H-1B status beyond the six year authorized period of admission, determining cap exemptions and counting workers under the H-1B cap, H-1B portability, licensure requirements and protections for whistleblowers.
- Establish two grace periods of up to 10 days for individuals in the E-1, E-2, E-3, L-1, and TN nonimmigrant classifications to provide a reasonable amount of time for these individuals to prepare to begin employment in the country and to depart the United States or take other actions to extend, change, or otherwise maintain lawful status.
- Establish a grace period of up to 60 consecutive days during each authorized validity period for certain high-skilled nonimmigrant workers when their employment ends before the end of their authorized validity period, so they may more readily pursue new employment and an extension of their nonimmigrant status.
- Automatically extend the employment authorization and validity of Employment Authorization Documents (EADs or Form I-766s) for certain individuals who apply on time to renew their EADs.
- Eliminate the regulatory provision that requires USCIS to adjudicate the Form I-765, Application for Employment Authorization, within 90 days of filing and that authorizes interim EADs in cases where such adjudications are not conducted within the 90-day timeframe.
Temporary Protected Status Extended for Nepal
On October 26, 2016, Secretary of Homeland Security Jeh Johnson has extended Temporary Protected Status for nationals of Nepal (and those without nationality who last habitually resided in Nepal) for an additional 18 months, effective Dec. 25, 2016, through June 24, 2018.
Current TPS Nepal beneficiaries who want to extend their TPS must re-register during the 60-day re-registration period that runs from October 26, 2016 through December 27, 2016. U.S. Citizenship and Immigration Services (USCIS) encourages beneficiaries to re-register as soon as possible once the 60-day re-registration period begins.
The 18-month extension allows TPS re-registrants to apply for a new Employment Authorization Document (EAD). Those who re-register during the 60-day period and request a new EAD will receive one with an expiration date of June 24, 2018.
It is important to note that some re-registrants may not receive their new EAD until after their current work permits expire. Therefore, USCIS is automatically extending current TPS Nepal EADs with a Dec. 24, 2016, expiration date for six months. This means that these existing EADs are now valid through June 24, 2017.
Re-registering for TPS:
To re-register, current TPS beneficiaries must submit:
- Form I-821, Application for Temporary Status (re-registrants do not need to pay the Form I-821 application fee);
- Form I-765, Application for Employment authorization regardless of whether they want an EAD;
- The Form I-765 application fee (or a fee waiver request) only if they want an EAD. If the re-registrant does not want an EAD, no application fee is required; and
- The biometric services fee (or a fee waiver request) if they are 14 years old or older.
DHS has increased Filing Fees by 30%
On October 24, 2016, U.S. Citizenship & Immigration Services announced that it is raising filing fees by about 30%. The new fees will be effective December 23rd. USCIS is almost entirely funded by the fees paid by applicants and petitioners for immigration benefits. The law requires USCIS to conduct fee reviews every two (2) years to determine the funding levels necessary to administer the nation's immigration laws, process benefit requests and provide the infrastructure needed to support those activities.
Fees will increase for the first time in six years, by a weighted average of 21 percent for most applications and petitions. This increase is necessary to recover the full cost of services provided by USCIS. These include the costs associated with fraud detection and national security (FDNS), customer service and case processing, and providing services without charge to refugee and asylum applicants and to other customers eligible for fee waivers or exemptions.
ASYLUM SEEKERS WILL GET WORK PERMITS THAT ARE VALID FOR TWO YEARS
Effective October 5, 2016, USCIS has increased the validity period for initial or renewal Employment Authorization Documents for asylum applicants from one year to two years. Applicants with pending asylum claims file Form I-765, Application for Employment Authorization, under category (c)(8). This change applies to all (c)(8)-based applications that are pending as of October 5, 2016 and all such applications filed on or after October 5, 2016.
EB-5 PROGRAM HAS BEEN EXTENDED THROUGH DECEMBER 9, 2016
The Continuing Resolution (CR) signed by President Barack Obama today officially extends authorization of the EB-5 Regional Center Program through December 9 which was due to lapse on September 30. The funding measure, passed both House and Senate earlier this week, takes effect immediately.
The EB-5 Regional Center Program has facilitated billions of dollars in direct foreign investment from countries such as India and China into a diverse range of development projects throughout the United States, generating over $15 billion from 2005-2015 and creating well over 100,000 new US jobs in that time.
TPS Extended for 6 Months for Guinea, Liberia and Sierra Leone
On September 22, 2016 Secretary of Homeland Security Jeh Johnson is extending TPS benefits for beneficiaries of TPS under the designations of Guinea, Liberia, and Sierra Leone for 6 months for the purpose of orderly transition before the designations terminate, effective May 21, 2017. After reviewing country conditions and consulting with the appropriate U.S. government agencies, Secretary of Homeland Security Jeh Johnson has determined that conditions in Guinea, Liberia, and Sierra Leone no longer support their designations for Temporary Protected Status (TPS). The widespread transmission of Ebola virus in the three countries that led to the designations has ended.
To provide for an orderly transition, current TPS beneficiaries will automatically retain their TPS and have the validity of their current Employment Authorization Documents extended through May 20, 2017. Beneficiaries do not need to pay a fee or file any application, including for work authorization, in order to retain their TPS benefits through May 20, 2017.
Although TPS benefits will no longer be in effect starting May 21, 2017, TPS beneficiaries will continue to hold any other immigration status that they have maintained or acquired while registered for TPS. The Department of Homeland Security urges individuals who do not have another immigration status to use the time before the terminations become effective in May to prepare for and arrange their departure from the United States or to apply for other immigration benefits for which they may be eligible.
NEW PERM REGULATIONS HAVE BEEN DELAYED
At the Department of Labor stakeholder meeting on 9/12/16, Acting OFLC Administrator William Thompson provided an update on the status of the PERM modernization regulation. He confirmed that the draft regulation is still undergoing review, and based on the current state of the process, implementation of a final PERM modernization regulation before the end of the Obama administration in January 2017 is "highly unlikely." A Notice of Proposed Rulemaking (NPRM) with the proposed changes may still be released at some point in the coming months, but any major changes to the PERM program do not appear to be imminent at this time.
IMMIGRATION LAW ALERT! USCIS PROPOSES RULE TO WELCOME INTERNATIONAL ENTREPRENEURS
U.S. Citizenship and Immigration Services (USCIS) is proposing a new rule, which would allow certain international entrepreneurs to be considered for parole (temporary permission to be in the United States) so that they may start or scale their businesses here in the United States.
- Who have a significant ownership interest in the startup (at least 15 percent) and have an active and central role to its operations;
- Whose startup was formed in the United States within the past three years; and
- Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by:
- Receiving significant investment of capital (at least $345,000) from certain qualified U.S. investors with established records of successful investments;
- Receiving significant awards or grants (at least $100,000) from certain federal, state or local government entities; or
- Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity's substantial potential for rapid growth and job creation.
IMMIGRATION RELIEF AVAILABLE FOR THOSE AFFECTED BY THE STORMS AND FLOODING IN LOUISIANA
USCIS offers immigration relief measures that may help people affected by unforeseen circumstances, such as disasters like the recent severe storms and flooding in Louisiana.
These measures may be available upon request:
- Change of nonimmigrant status or extension of nonimmigrant stay for an individual currently in the
- United States, even if the request is filed after the authorized period of admission has expired;
- Re-parole of individuals previously granted parole by USCIS;
- Expedited processing of advance parole requests;
- Expedited adjudication of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
- Expedited adjudication of employment authorization applications, where appropriate;
- Consideration of fee waivers due to an inability to pay;
- Assistance for those who received a Request for Evidence or a Notice of Intent to Deny but were unable to appear for an interview, submit evidence or respond in a timely manner;
- Replacement of lost or damaged immigration or travel documents issued by USCIS, such as a Permanent Resident Card (Green Card);
- Rescheduling of a biometrics appointment.
When making a request, you should explain how the severe storms or flooding created a need for the requested relief.
Expansion of Form I-601A, Provisional Unlawful Presence Waiver
The U.S. Department of Homeland Security (DHS) has expanded the class of individuals that may qualify for Form I-601A, Provisional Unlawful Presence Waivers (“provisional waivers”). Individuals who are inadmissible based exclusively on their accrual of unlawful presence in the United States may request a provisional waiver from U.S. Citizenship and Immigration Services (USCIS) to waive these grounds of inadmissibility before departing the United States for consular processing of their immigrant visas at the U.S. Embassy or Consulate abroad. Those that apply for provisional waivers will receive advance notice of USCIS’s decision to provisionally waive their 3-or 10-year unlawful presence bars before they leave the United States to attend their immigrant visa interview abroad. Thus, the provisional waiver allows families to shorten the time that they are separated from their loved ones, and reduces the risks, that a family member who is attempting to obtain an immigrant visa at a U.S. Embassy or Consulate, might be stuck outside of the U.S. for months or years.
Before the expansion, which is effective as of August 29, 2016, the qualifying individual could only obtain a provisional waiver if he was an immediate relative of a U.S. citizen (spouse, child, or parent) and could establish extreme hardship to a U.S. citizen spouse or parent. The final rule expands the regulation to also allow individuals to demonstrate extreme hardship to Legal Permanent Resident (LPR) spouses or parents and, more importantly, expands the class of individuals who are eligible for provisional waivers beyond those of immediate relatives of U.S. citizens. As a result, an applicant no longer has to be a beneficiary of an immediate relative immigrant visa in order to qualify. This opens up doors for individuals that participated in the Diversity Visa program, for sons and daughters of U.S. citizen or LPR parents, and even for certain individuals who have been approved for employment-based green cards.
Furthermore, one of the main benefits of this expansion is the creation of a pathway toward green cards for individuals that are subject to final orders of removal. Individuals who have received final orders of removal may be eligible for provisional waivers if (1) their only ground of inadmissibility is unlawful presence, (2) they apply for, and USCIS approves, Form I-212, Application for Permission to Reapply for Admission into the Unties States After Deportation or Removal (“Form I-212”), and (3) they meet the other provisional waiver criteria discussed above. If an individual meets these criteria, he can, in spite of his removal order, apply for a provisional waiver and, if approved, leave the United States in order to complete consular processing on his immigrant visa without needing to remain outside the United States for an extended period of time.
The provisional waiver will not, however, provide relief for all individuals in the United States seeking green cards. It is important to stress that an individual is still required to have an immigrant visa available to him in order to apply, and an individual still needs to demonstrate extreme hardship to a U.S. citizen spouse or parent in order to be approved. It is also important to stress that the provisional waiver will not help individuals who are inadmissible for reasons other than unlawful presence, including crime-based inadmissibility. In order to assess an individual’s eligibility for a provisional waiver, it is important to have a consultation with an experienced immigration attorney.