As you may have heard, USCIS has published a final immigration-related rule that will go into effect on January 17, 2017.  This is a wide ranging rule that covers a number of current immigration programs.  The rule is lengthy so we have summarized those portions of the rule that may be most relevant to our employment based clients.  You can find the complete final rule here.

The stated purpose of the rule is to modernize and improve several aspects of certain employment-based nonimmigrant and immigrant visa programs. Specifically, USCIS has stated that the rule is intended to improve processes and increase certainty for U.S. employers seeking to sponsor and retain immigrant and nonimmigrant workers; provide greater stability and job flexibility for those workers; and increase transparency and consistency in the application of DHS policy related to certain classes of immigrants and nonimmigrants.  We will have to see how some of these provisions are put into practice over time, but many of them are aimed at improving the ability of employers to hire and retain people with approved I-140 petitions who are waiting to complete the green card process and become permanent residents, while increasing the ability of those workers to seek promotions, accept lateral positions with current employers, change employers, or pursue other employment options. 

Here are some highlights:

• Introduction/Expansion of nonimmigrant grace periods for primary and dependent beneficiaries in certain circumstances:

- 10-day grace period at the start and end of an authorized validity period in E-1, E-2, E-3, L-1 and TN classifications (this grace period was previously available only to H-1B, O, and P classifications).

- Grace period following the termination of employment in H-1B, L-1, O-1, TN, E-1, E-2, E-3, or H-1B1 classification, to make it easier for workers to stay in the United States and pursue new employment.  The grace period will be the lesser of 60 days or the final validity date for the classification (i.e., expiration of the current I-94 record), and a beneficiary may only benefit from this grace period once during the authorized validity period. 

- Please note that beneficiaries are not authorized to work during grace periods. 

• H-1B cap-exemption:  The new rule codifies and clarifies which entities are eligible for exemption from the H-1B cap.  The exemption continues to apply to institutions of higher education, nonprofit entities connected to or associated with institutions of higher education (although it should be easier to demonstrate the required relationships), governmental research organizations (which now includes local, state and federal), and petitions for H-1B workers who are working "at" a cap-exempt employer.  This last exemption has been defined more broadly than previously interpreted.
   
• Concurrent H-1B employment: Under current policy, when a cap-subject employer files an H-1B petition for concurrent employment for a beneficiary who has not been counted against the cap but is working at a cap-exempt employer, that concurrent H-1B approval notice remains valid even if the cap-exempt employment ceases.  Under the new rule, USCIS may revoke the now cap-subject H-1B petition if the cap-exempt employment ends prematurely.  
   
• 7th year H-1B extensions, based on the filing of a PERM application (or I-140 petition) more than 365 days before the end of the 6 years of H-1B: Under the new rule, USCIS clarifies that an H-1B worker may be eligible for a one-year H-1B extension so long as a qualifying labor certification or I-140 petition was filed at least 365 days before the requested start date of the H-1B extension; the petition requesting this extension may be filed prior to the 365-day mark.
   
• All H-1B extensions beyond the 6th year: Under current regulation, an H-1B worker who is eligible to extend H-1B status beyond 6 years (based on the priority date or an approved I-140 petition) remains eligible to do so indefinitely.  Under the new rule, these H-1B workers must file an I-485 application within one year of their priority date becoming current or they will be ineligible to continue to extend their H-1B status.  This change may effect when employers begin the green card process for new hires that already have approved I-140 petitions.  Because of the volatility of the visa bulletin and the visa backlogs, it may be necessary to begin the green card process sooner than normal to avoid a situation where someone becomes eligible to file the I-485 application based on a previously approved I-140 and old priority date but is unable to do so because the PERM application for the new permanent job offer is still pending.  In this situation, the employee no longer would have a basis to extend H-1B status.
   
• Green card portability:  USCIS has made several changes to the green card portability program, which allows the beneficiary of an I-140 petition to change jobs in certain circumstances, as long as the I-485 application has been pending for 180 days or more.

- USCIS is introducing Supplement J to Form I-485, which must be completed to demonstrate continuing eligibility for adjustment of status based on a new job offer.

- USCIS is clarifying that the I-140 petition does not have to be approved for the beneficiary to take advantage of the green card portability provisions; however the pending I-140 petition must meet certain other requirements.

- The new job offer must be in the "same or similar" occupational category, and the new rule defines "same" as a job that is identical or that resembles in every relevant respect the occupation for which the underlying I-140 was approved.  "Similar " has been defined as a job that shares essential qualities or has a marked resemblance or likeness to the occupation for which the I-140 was approved. 

• Confirms that beneficiaries of approved I-140 petitions can continue to rely on these petitions for H-1B extensions and priority date retention, even if the petition is revoked because the employer withdrew it or has gone out of business. 
   
• Changes to eligibility and processing for EAD cards:

- The new rule creates a new class of people that are eligible to apply for work authorization by filing an I-765 application and receiving an EAD card.  Requirements include:

~ Must have an approved I-140 petition;

~ Must have a retrogressed priority date (i.e., be subject to a visa backlog); and

~ Must have "compelling circumstances."

Please note that this provision has received a great deal of attention, but it is intended to be used very narrowly for those applicants with no other options.  It is not intended to benefit people who are otherwise eligible for an H-1B extension or another kind of work authorization.  The rule gives the following examples of "compelling circumstances:" serious illness and disability; employer dispute or retaliation; other substantial harm to the applicant (does not include unemployment); and significant disruption to the employer.  EADs will be granted in 1-year increments, and applicants will be required to pay a biometric fee in addition to the standard filing fee.

- Eliminates the regulatory provisions requiring USCIS to adjudicate EAD applications within 90 days of filing.  Please note that this means that there may be delays for applicants who are applying for their first EAD card.  While the renewal process will be easier for some, there will be uncertainty surrounding when the initial EAD card will be issued.