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New Final Rule Released: I-140 Priority Date Retention, Issuance of EAD, and Job Portability


The Department of Homeland Security (DHS) has released the Final Rule for the “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers.” It was released on November 18, 2016 and will go into effect starting Monday, January 16, 2017.

The rule was originally proposed on December 31, 2015 in order to improve various aspects of the employment-based immigration system. What this rule ultimately does is allow for smoother processes for employers in the U.S. who are seeking to both sponsor and keep immigrant and nonimmigrant workers, while also allowing for increased flexibility and job security for these workers who are coming to the U.S. or who are already working here in America.

What Changes Have Been Made?

I-140 EAD Available for “Compelling” Reasons: I-140 EADs will be available to workers that are maintaining an H-1B, H-1B1, E-3, L-1, or O-1 status who are also approved I-140 in EB1, EB2, or EB3 categories, who cannot adjust their status due to visa retrogression. The individual must provide compelling reasons to receive an I-140 EAD and there will be certain restrictions surrounding this change as well.

Portability of I-140: Any I-140 petitions that have been approved for at least 180 days are now valid for H-1B extensions that can go beyond the six year limitation. Additionally, they are valid for portability even if the employer who sponsored their visa has withdrawn approval or they have gone out of business. Any form of withdrawal by the USCIS for material error, misrepresentation, or fraud will cause the portability to be null and void.

Automatic Authorization of Employment While Waiting for EAD Renewal: As long as the applicant for EAD renewal has filed the appropriate paperwork prior to their EAD’s expiration date, they filed for the same EAD category, and they do not require adjudication of any other fundamental applications, employment is now automatically authorized for up to 180 days after the EAD’s expiration date. This is only for certain EADs, including I-485 and others, but it does not include H-4, L-2, and other similar EADs.

Creation of H-1B Employment Termination Grace Period: Currently H-1B holders have 10 days before and after their period of employment in the U.S. where they can stay in the country without working and receive no penalty. This new ruling will add to this and allow for a one-time 60 day grace period following the termination of an H-1B job, so long as the termination was before the end of their authorized stay. This applies also to E-1, E-2, E-3, H-1B1, L-1, O-1, and TN status workers, as well as their dependents.

For even more information, you can view the official rule from Homeland Security Department here.

Speak with a Qualified Dallas Immigration Attorney at Mathur Law Offices, P.C.

If you are seeking employment opportunities in the U.S. or you are an employer looking to hire foreign nationals, allow our highly experienced Dallas employment immigration lawyers to guide you through this process.

With these recent changes and the already complex nature of immigration law, it is wise to have an advocate working on your behalf to make the process a smooth one. We have been rated as one of the “10 Best in Client Satisfaction” for 2016 and are included in the list of the Top 100 Lawyers by The National Trial Lawyers Association, for our dedication to getting our clients the results they deserve. Let us work with you or your business to come up with the right solution for you.

Speak with our knowledgeable Dallas immigration firm today – call 888-867-5191.