DHS proposes new rule: Amended regulations for certain employment-based immigrant and non-immigrant visa programs

Posted by Immigration Law Team|US Immigration
Nov 16

In brief

Table of Contents

The Department of Homeland Security (DHS) has proposed a final rule which will amend its regulations related to certain employment-based immigrant and nonimmigrant visa programs. It includes the retention of EB-1, EB-2, and EB-3 immigrant workers and program improvements affecting high-skilled nonimmigrant workers. The final rule is intended to benefit U.S. employers and foreign workers participating in certain programs, by streamlining the processes for employer sponsorship of nonimmigrant workers for lawful permanent resident (LPR) status. Additionally, the final rule aims to increase job portability and provide stability and flexibility for foreign workers.


Notable issues and changes addressed in the final rule include the following:

Retention of priority dates: Priority date retention will generally be available as long as the approval of the initial Form I-140 petition was not revoked for fraud, willful misrepresentation of a material fact, the invalidation or revocation of a labor certification, or material error. This will allow workers to retain priority dates and effectively transfer those dates to new and subsequently approved Form I-140 petitions

Retention of employment-based immigrant visa petitions: Form I-140 petitions that have been approved for 180 days or more would no longer be subject to automatic revocation based solely on withdrawal by the petitioner or the termination of the petitioner’s business

– 10-day non-immigrant grace periods before / after the assignment in US: There will be two grace periods of up to 10 days, consistent with those already available to individuals in some non-immigrant classifications, to individuals in the E-1, E-2, E-3, L-1, and TN classifications.The rule allows an initial grace period of up to 10 days prior to the start of an authorized validity period, as well as a second grace period of up to 10 days after the end of an authorized validity period in the U.S.

– 60-day non-immigrant grace periods where employment ceases prior to end of petition validity: There will be a new grace period of up to 60 consecutive days during each authorized validity period for individuals in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classifications. This grace period allows high-skilled workers in these classifications, including those whose employment ceases prior to the end of the petition validity period, to more readily pursue new employment should they be eligible for other employer-sponsored non-immigrant classifications or employment in the same classification with a new employer

– Automatic extension of EAD pursuant to timely renewal filing: Certain EADs will be extended for up to 180 days from the date of expiration, as long as: (1) a renewal application is filed based on the same employment authorization category as the previously issued EAD; (2) the renewal application is timely filed prior to the expiration of the EAD; and (3) the individual’s eligibility for employment authorization continues beyond the expiration of the EAD and an independent adjudication of the underlying eligibility is not a prerequisite to the extension of employment

– Eligibility for employment authorization in compelling circumstances: Certain beneficiaries with approved I-140 petitions in the U.S. in E-3, H-1B, H-1B1, L-1, or O-1 non-immigrant status may apply for separate employment authorization for a limited period if there are compelling circumstances that, in the discretion of DHS, justify the issuance of employment authorization.


DHS states that these changes codify and improve existing policies concerning various employment-based immigrant and non-immigrant visa classifications. One of the main goals is to simplify the process for employers to hire and retain non-immigrant workers who have approved Form I-140 petitions. Also, DHS aims to give such workers additional career options as they wait for immigrant visas to become available. DHS considers these improvements increasingly important given the lengthy waits and consistently growing demand for immigrant visas.

The proposed rule is currently in the 60-day notice and comment period following publication in the Federal Registrar on November 18, 2016. The proposed changes will most likely take several months to clear the federal regulatory process. PwC Law LLP will provide additional updates as they become available.

For more information on the proposed rule change issued by DHS, please contact PwC Law LLP.

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