United States: Business Immigration: Employers And Beneficiaries Familiarize Themselves With New Regulatory Changes Effective Jan. 17, 2017

The Department of Homeland Security has issued new regulations that will impact employers and foreign workers in many of the employment-based immigrant and nonimmigrant categories. DHS new rule, "Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers" is generally an improvement on the status quo as well as much of the day-to-day practice which required leveraging in a series of largely disjointed memoranda. With a new administration on the horizon that promises more stringent immigration regulations and protocols, this is welcomed news for the business immigration community.

Below we summarize the key provisions:

Grace Periods

  • Entry and Departure. Individuals entering the U.S. in E-1, E-2, E-3, H-1B, L-1, and TN classifications may be admitted for a period of 10 days before and 10 days after their petition validity. They do not, however, have work authorization during such times. 8 C.F.R. § 214.1(l)(1). Under current regulations, only H-1B visa holders have been afforded this 10 day buffer.
  • Cessation of Employment. Similarly, E-1, E-2, E-3, H-1B, L-1, and TN nonimmigrants and their family members whose employment has ended are now afforded a 60-day grace period or until the end of their authorized validity period, whichever is shorter. During this time, they may not work, however, they may apply for extensions of stay or changes of status if otherwise eligible. 8 § C.F.R. 214.1(l)(1). This grace period will allow for the easier transition of workers from one job to another.

Adjustment Portability and I-140 Revocation

USCIS has now codified regulations regarding portability following I-140 approval as contemplated by the American Competitiveness in the 21st Century Act ("AC21"), as well as fostering a regulatory climate allowing for such adjustment portability.

  • End of Automatic Revocation. USCIS will now longer revoke petitions approved for 180 days or more (or including an adjustment filing pending for 180 days or more) based only upon the withdrawal by a petitioner or the end of its business. This allows beneficiaries to retain priority dates, port jobs, and extend status under AC21. 8 C.F.R. § 205.1(a)(3)(iii).
  • Permanent Portability. Adjustment applicants may permanently port as contemplated under AC21. The regulations allow for porting to a new offer of employment or self-employment in the same or similar occupation as that in the underlying petition. Importantly, USCIS has now created a new form and process, Form I-485 Supplement J.

The new form may be used to confirm the original job offer from the petitioning employer, but

MUST be used when the applicant is porting. The underlying adjustment application must be pending for 180 days or more and the I-140 approved and not revoked, or pending for 180 days or more and subsequently approved.

8 C.F.R. § 245.25(a).

Changes to Applications for Employment Authorization Documents ("EAD")

  • End of Regulatory Form I-765 Adjudication Timeframe. USCIS is no longer required under the regulations to adjudicate Applications for Employment Authorization within 90 days of receipt.
  • Expanded EAD Extension Provisions. USCIS will now allow renewal EAD applications to be filed 180 days prior to expiration (current policy is 120). Further, the filing of a renewal application provides an automatic EAD extension of 180 days, and the receipt notice can be used for Form I-9 reverifications. 8 C.F.R. § 274a.13(d) for most EAD categories.
  • EADs for "Compelling Circumstances." USCIS will now consider one-year of employment authorization for individuals in valid E-3, H-1B, H-1B1, O-1, or L-1 status that 1) are the principal beneficiary of an approved EB-1, EB-2, or EB-3 petition; 2) face an immigrant visa backlog, and 3) can demonstrate "compelling circumstances." Family members may also apply, however, they cannot be granted unless/until the principal is granted. Restrictions on renewal apply, and an EAD will not be granted to anyone convicted of a felony or two or more misdemeanors. 8 C.F.R. § 204.5(p). It is expected that this provision will only be used in extremely rare circumstances (e.g. destruction of physical work location due to natural disaster).

H-1B Specialty Occupation Visa Provisions

  • AC21 Extensions Beyond 6-year Limit of Stay. USCIS has now codified regulations that allow extensions beyond the sixth year as contemplated in AC21. The regulations now specifically address:

One-year incremental approval of H-1B status where a labor certification application or employment-based immigrant petition is pending for 365 days or longer. The regulations further clarify that the extensions are available until a final denial or revocation decision is made, including when administrative appeals have been exhausted. Further, employers may file for such extensions within 6 months of the requested start date, and before the 365 days have elapsed if the start date is after such time. An employer need not be the same as that used to qualify for the initial extension. If an employee fails to file for adjustment of status or an immigrant visa within 1 year of availability, s/he is no longer eligible for such an extension unless the failure to file was beyond his/her control. 8 C.F.R. § 214.2(h)(13)(iii)(D).

Three-year incremental approvals of H-1B status for EB-1, EB-2, and EB-3 beneficiaries facing quota backlogs. Natives of India and China presently face multi-year quota backlogs in the EB-2 and EB-3 immigrant categories. The regulations now incorporate the AC21 three-year extension provisions regarding these circumstances. The terms and conditions are substantially similar to the one-year extensions discussed above. 8 C.F.R. § 214.2(h)(13)(iii)(E).

  • Portability. As enacted in AC21, beneficiaries of new H-1B petitions may commence new employment (i.e. changing current positions, changing employers, or accepting concurrent employment) upon the filing of a non-frivolous amendment or extension petition. Additional provisions allow for successive porting petitions to be filed so long as previous porting petitions remain pending or are approved. 8 C.F.R. § 214.2(h)(2)(i)(H).
  • Cap-Exemption. The new regulations provide key updates to the types of petitions which qualify as being exempt from the annual 65,000 / 20,000 H-1B visa "cap."

Institution of Higher Education. The definition for such exemption is congruent with those for the purposes of the ACWIA fee.
Related or Affiliated Nonprofit Entity. The regulations now define this previously ambiguous qualification for exemption for entities that meet at least one of the following:

The nonprofit entity is connected to or associated with an institution of higher education through shared ownership or control by the same board or federation;

The nonprofit entity is operated by an institution of higher education;

The nonprofit entity is attached to an institution of higher education as a member, branch, cooperative, or subsidiary; or

The nonprofit entity has entered into a formal written affiliation agreement with an institution of higher education that establishes an active working relationship between the nonprofit entity and the institution of higher education for the purposes of research or education, and a fundamental activity of the nonprofit entity is to directly contribute to the research or education mission of the institution of higher education.

Employment "At" Cap-Exempt Entity. An otherwise cap-subject employer may petition for an H-1B employee if the employee is 1) spending the majority of work time performing job duties at a cap-exempt institution and 2) those job duties directly and predominately further the essential purpose / mission of the cap-exempt entity, specifically higher education or nonprofit/governmental research.

Becoming cap-subject. Previously exempt H-1B visa holders become subject to the cap if they change employment to a cap-subject entity and they have not been counted within the 6-year period of authorized admission to cap-subject H-1B employment.

8 C.F.R. § 214.2(h)(8)ii(F).

  • Recapture. The regulations now reflect previous agency memoranda that allowed beneficiaries to "recapture" 24-blocks of time spent outside of the U.S. during the validity of an H-1B petition. 8 C.F.R. § 214.2(H)(13)(iii)(C).
  • Licensures. USCIS may now approve H-1B visas for a validity period of up to 1 year where a licensure is needed to engage in the occupation but cannot be granted because the beneficiary lacks a social security number, lawful U.S. status, or a similar other requirement. No extensions can be received without obtaining the licensure, and the petitioner must provide the identity, location, and credentials of the beneficiary's supervisor(s), ensuring compliance with any applicable state laws. 8 C.F.R. § 214.2(h)(4)(v)(C).

While most of the changes herein reflect current practices of USCIS through policy memorandum, the fact that they will soon be codified provides much needed security for foreign national employees and employer during a time of administrative transition.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
10 Oct 2018, Conference, Toronto, Canada

As of October 17th, 2018, buying, selling, possessing, using recreational cannabis and taking part in the business of selling it will be legal in Canada.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions