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Highlights on some of the provision from the recent DHS issued Retention of EB1, EB2, and EB3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers rule, effective January 17, 2017.

By: Angelita Chavez | December 15, 2016

Employment Authorization

  1. For certain categories of EAD, DHS will automatically extend the expired employment authorization validity period for up to 180 days where the applicant timely filed a renewal in the same eligibility category prior to its expiration date with USCIS. The employee in this situation will be able to present the expired EAD card along with the USCIS receipt notice issued for the pending renewal application as a List A document to the employer to update his/her I-9 record. For more information, please visit
  1. The new rule does not apply to EAD for H-4 and L-2 status holder. Therefore, there is no automatic180-day extension of H-4 EAD or L-2 EAD work authorization. This is because H-4 EAD or L-2 EAD renewal is contingent upon the approval of the underlying non-immigrant H-1B/H-4 or L-1/L-2 extensions. Once the H-4 or L-2 EAD has expired, the card holder must stop working until he/she is in possession of the renewed EAD from USCIS.
  1. Applicant applying for EAD renewal can now apply up to 180 days prior to the expiration of his/her current EAD.

Separate Employment Authorization based on an Approved I-140 Due to Compelling Circumstances.

The provision allows certain beneficiaries of an approved I-140 Immigrant Visa Petition in the United States in E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status to 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.  Please note some of the particulars:

  1. Non-immigrant workers who initially apply for Compelling Circumstances EAD (I-140 EAD) must be in a lawful nonimmigrant status and is waiting for visa availability.
  1. The I-140 EAD applicant must prove that he/she is eligible for the benefit based on Compelling Circumstances. Compelling circumstances are generally situations outside a worker’s control which warrants the DHS’s exercise of discretion in granting employment authorization on a case-by-case basis, given the totality of the circumstances. Dependent family member of the principal applicant is also eligible for employment authorization and may apply concurrently with the principal applicant but period of employment authorization cannot exceed that which is granted to the principal applicant.
  1. By engaging in employment based I-140 EAD, the foreign national is giving up his/her nonimmigrant status, since the individual is no longer working under the terms and conditions contained in the underlying nonimmigrant
  1. The foreign national may remain in the United States and work during the I-140 EAD’s validity period.
  1. Such employment authorization may only be renewed in limited circumstances and only in one year increments. Where the EAD renewal is not approved by USCIS, the foreign national must depart the US.
  1. DHS will grant Advance Parole in Conjunction with Compelling Circumstance EAD who needs to travel where appropriate for urgent humanitarian reasons or significant public benefit to such individuals on a case-by-case basis.
  1. The foreign national would not be able to apply for Adjustment of Status in the United States when his/her priority date becomes current because he/she is not in lawful nonimmigrant However, the foreign national may be eligible for immigrant visa via consulate processing.
  1. In order to apply for Adjustment of Status, the foreign national would need to depart the US, be the beneficiary of an approved nonimmigrant visa petition and obtain a nonimmigrant visa from a consulate or embassy overseas before applying for US admission and to work in that status. Once the foreign national is admitted in a nonimmigrant status, he or she may be eligible to adjust his/her status to that of a lawful permanent residence, if otherwise eligible.

            Please consult an attorney to determine eligibility.

Retaining Priority Date and AC21 I-140 Portability 

  1. The foreign national may retain his/her Priority date and transfer said date to a new and subsequently approved form I-140 petition as long as the approval of the initial Form I-140 petition was not revoked for fraud, willful misrepresentation, revocation by Department of Labor, invalidation by USCIS or Department of State, material error, or petition denial.
  1. I-140 petition that has been approved for 180 days or more or the associated Adjustment of Status application has been filed with USCIS at least 180 days ago would no longer be subject to automatic revocation based solely on withdrawal by the I-140 petitioner or the termination of the I-140 petitioner’s business.
  1. I-140 portability is available where the foreign national’s I-485 application has been pending for more than 180 days and the new job offer is in the same or a similar occupational classification as originally offered by the I-140 employer.   The I-485 applicant is required to file Form I-485 Supplement J and submit evidence regarding the new employment/job offer for continued adjustment of status eligibility.

Limit to Post Six-Year H-1B Extension Benefit

The H-1B beneficiary is ineligible for extension beyond the six-year H-1B limitation, where he/she fails to file for Adjustment of Status or Application for an Immigrant visa within one year of an immigrant visa (e.g. priority date) becoming available based on his or her preference category and country of chargeability.   Where the foreign national’s priority date retrogressed during the one-year period, then the foreign national is afforded a new 1-year period when the immigrant visa becomes available again.  Such failure is excusable at USCIS’s discretion if the foreign national can establish that the failure to apply for Adjustment of Status or an Immigrant Visa was due to circumstances beyond his/her control.

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