Options for Nonimmigrant Workers Following Termination of Employment
U.S. Citizenship and Immigration Services (USCIS) is providing information for nonimmigrant workers whose employment has terminated, either voluntarily or involuntarily. USCIS regulations permit a discretionary grace period that allows workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications (and their dependents) to be considered as having maintained status following the cessation of employment for up to 60 consecutive calendar days or until the end of the authorized validity period, whichever is shorter.
During this period, workers may be able to maintain their nonimmigrant status if a new employer timely files a petition on their behalf with an extension of stay request. Alternatively, workers may be able to remain in the United States in a period of authorized stay if they timely file an application to change to a new nonimmigrant status or an application for adjustment of status, if eligible.
Some workers may be eligible to file a self-petitioned immigrant visa petition concurrently with an adjustment of status application. Workers with a pending adjustment application are generally eligible to remain in the United States and obtain an Employment Authorization Document (EAD).
The timely filing of a non-frivolous application or petition to change status will prevent the accrual of unlawful presence until the application is adjudicated. For example, if an individual files a non-frivolous application to change status before the end of the applicant’s 60-day grace period, they will not accrue unlawful presence while the application remains pending even after the 60-day grace period has elapsed. If the application is ultimately approved, then the individual’s status is changed and is considered to have been in a period of authorized presence the entire time the application was pending. If the application is denied, then the individual starts to accrue unlawful presence the day after the denial decision.
Workers who are unable to timely file a change of status application or find a new employer who timely files a change of employer petition for the worker, may be required to depart the United States at the end of this grace period.
Workers may also choose to depart the United States. For H-1B and O workers who chose to depart the United States after involuntary cessation of employment, the reasonable costs of transportation to the worker’s last place of foreign residence must be borne by the H-1B employer or by the O employer and O petitioner, as applicable. Once abroad, H-1B holders may seek U.S. employment and readmission to the United States for any remaining period of their H-1B status. Those seeking another classification for which they may be eligible can complete the application or petition process abroad and seek readmission to the United States.
USCIS Proposes Increased Fees
U.S. Citizenship and Immigration Services (USCIS) published a Notice of Proposed Rulemaking (NPRM) to adjust certain immigration and naturalization benefit request fees. The new fees would allow USCIS to more fully recover its operating costs, reestablish and maintain timely case processing, and prevent the accumulation of future case backlogs.
The proposed rule would increase some fees, including an increase in the fee for certain naturalization applications, while preserving existing fee waiver eligibility for low-income and vulnerable populations and adding new fee exemptions for certain humanitarian programs. If finalized, the proposed rule would decrease or minimally increase fees for more than one million low-income filers each year.
New measures include a proposal to incorporate biometrics costs into the main benefit fee and remove the separate biometric services fee; establish separate fees for each nonimmigrant classification covered by Form I-129, Petition for a Nonimmigrant Workers; change the premium processing timeframe from 15 calendar days to 15 business days; and institute lower fees for certain forms filed online. The proposed rule would not change fee waiver eligibility requirements. The projected revenues resulting from the proposed rule would allow USCIS to increase the number of adjudicators processing applications, implement technology improvements, and increase support provided to individuals seeking information and assistance from USCIS.
The 60-day public comment period starts following publication of the NPRM in the Federal Register. Fees will not change until the final rule goes into effect, after the public has had the opportunity to comment and USCIS finalizes the fee schedule in response to such comments. USCIS will host a public engagement session on the proposed fee rule on January 11, 2023.
Visa Bulletin Update – January 2023
A. FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES
On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are authorized for issuance to all qualified applicants; and "U" means unauthorized, i.e., numbers are not authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants whose priority date is earlier than the final action date listed below.)
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*Employment Third Preference Other Workers Category: Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW final action date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002. For Fiscal Year 2022 this reduction will be limited to approximately 150.
B. DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS
The chart below reflects dates for filing visa applications within a timeframe justifying immediate action in the application process. Applicants for immigrant visas who have a priority date earlier than the application date in the chart may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions. The application date for an oversubscribed category is the priority date of the first applicant who cannot submit documentation to the National Visa Center for an immigrant visa. If a category is designated “current,” all applicants in the relevant category may file, regardless of priority date.
The “C” listing indicates that the category is current, and that applications may be filed regardless of the applicant’s priority date. The listing of a date for any category indicates that only applicants with a priority date which is earlier than the listed date may file their application.
USCIS has indicated that for January 2023, the Dates of Filing Chart will be used for all employment based preference categories.
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CDC Announces COVID-19 Test Requirement for Travelers from China
Beginning January 5, 2023, The Center for Disease Control and Prevention (CDC) will implement a requirement for a negative COVID-19 test or documentation of recovery for all travelers two years and older boarding flights to the United States that originated in the People's Republic of China (PRC), Hong Kong, and Macau. Travelers from these locations will be required to have a negative result on a COVID-19 test (such as a PCR or antigen self-test) administered either by an authorized telehealth service or licensed provider no more than two days before departing. Passengers who tested positive more than 10 days before the flight can provide documentation of recovery instead of a negative result.
The CDC provided the following additional information:
- The requirement applies to air passengers regardless of nationality and vaccination status.
- The requirement applies to persons traveling from the PRC via third-country transit and passengers connecting through the United States onward to further destinations.
- In addition to applying to direct flights from the PRC, travelers stopping through Incheon International Airport, Toronto Pearson International Airport, and Vancouver International Airport on their way to the United States will be required to provide a negative COVID-19 test if they have been in the PRC in the last 10 days, no more than two days before their departure to the United States.
DHS Implements New Processes for Cuban, Haitian, Nicaraguan, and Venezuelan Nationals
On Jan. 5, 2023, the Department of Homeland Security (DHS) announced a safe and lawful way for qualifying Cubans, Haitians, and Nicaraguans with U.S.-based supporters to travel by air to and temporarily reside in the United States. Individuals arriving under this new process may also apply for work authorization. DHS also announced elimination of the numerical cap for a similar process for Venezuelans announced earlier this year.
This process will provide a lawful and streamlined way for qualifying nationals of Cuba, Haiti, and Nicaragua who are outside the United States and lacking U.S. entry documents to come to the United States. Through a fully online process, individuals can be considered, on a case-by-case basis, for advance authorization to travel to the United States and seek a temporary period of parole for up to two years, provided that they:
- Have a supporter in the United States who will provide financial and other support;
- Undergo and clear robust security vetting;
- Meet other eligibility criteria; and
- Warrant a favorable exercise of discretion.
DHS will begin implementing these new processes for Cubans, Haitians, and Nicaraguans on Jan. 6, 2023.
DHS strongly encourages Cubans, Haitians, Nicaraguans, and Venezuelans seeking entry in the U.S. who do not have and are not eligible for a visa to instead seek entry via this process. Individuals complete the process electronically and should not approach the border to access this process.
Effective immediately, U.S.-based individuals may submit Form I-134A, Online Request to be a Supporter and Declaration of Financial Support, on behalf of named nationals of Cuba, Haiti, and Nicaragua to come to the United States. DHS is also continuing the process with respect to Venezuelans.
Access to these processes is free. Neither the U.S. supporter nor the beneficiary is required to pay the U.S. government a fee for the Form I-134A or participation in this process.
Simplified Arrival - CBP
As of April 2022, Customs and Border Protection (CBP) has implemented Simplified Arrival. This exists at all 238 arriving airports, at 34 seaports, and at all southern pedestrian and most northern secondary land ports. As part of Simplified Arrival, CBP expanded a pilot program to eliminate physical stamps in passports. The airports of entry where this has been implemented are located in San Francisco (SFO), Chicago, Atlanta, Dallas, Boston, Montreal, Calgary, Toronto, New York/Newark, Houston, Washington Dulles, Seattle, Los Angeles (LAX), and Dublin. The land ports of entry are located in Seattle, Buffalo, El Paso, Detroit, Laredo, San Diego, and Tucson. It is important to download I-94s going forward.
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For more information please contact the experienced immigration attorneys at Monty & Ramirez LLP at 713-289-4546 or via email at info@montyramirezlaw.com
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Monty & Ramirez LLP
150 W. Parker Road, 3rd Floor
Houston, Texas 77076
Phone: 281.493.5529
Toll-Free: 1.866.427.0152
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