Late last year, the U.S. Citizenship and Immigration Service (USCIS) issued its Final Rule amending certain regulations related to employment-based immigrant and nonimmigrant visa programs. USCIS’s effort is intended to benefit both U.S. employers and foreign workers participating in these programs by “streamlining the processes for employer sponsorship of nonimmigrant workers for lawful permanent resident (LPR) status, increasing job portability and otherwise providing stability and flexibility for such workers, and providing additional transparency and consistency in the application of DHS policies and practices related to these programs.” The changes contained in the Final Rule go into effect on January 17, 2017, so employers with foreign workers (or employers who are considering hiring foreign workers) need to understand the implications of these changes and be prepared.
A limited summary of those affected by the changes is below. A full description of these changes in detail – which anyone directly involved in employment of foreign nationals should carefully review – has been provided as a Troutman Sanders LLP advisory and can be found here on our firm’s website.
What the Final Rule does and contains:
- Addresses the impact of an approved I-140 immigrant petition that is withdrawn or where the petitioning business entity shuts down, including regarding priority dates, when the petitions may remain valid, and the effect on employment of beneficiaries of approved I-140 petitions;
- Speaks to individuals who have filed an I-140 petition and an I-485 adjustment to that status that remains pending, including as to portability issues and the same or similar occupation clarification;
- Provides short grace periods for certain actions for specific individuals in certain employment-based non-immigrant classifications;
- Deals with the topics of H-1B portability and Occupational Licensing;
- Offers provisions related to cap-exempt employers such as non-profit entities;
- Provides conditions related to H-1B extensions beyond the initial 6 years of eligibility;
- Contains whistleblower provisions and addresses Haitian refugees; and
- Addresses EAD applications;
As you can see clearly from this summary list, there are numerous new provisions — and their details contained in the USCIS Final Rule are even more complicated. For those who are involved in this area of work and for businesses employing foreign nationals, you need to review, understand and respond to these Final Rule provisions, as applicable, right away. Seeking help from an Immigration legal professional would be a wise move, as January 17, 2017 is just two weeks away!