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Final Rule on Certain Employment-Based Visa Programs: How Will the Changes Affect You?

by: Justin Burton

A Naperville Immigration Lawyer Can Answer Your Questions!

On November 18, 2016, the US Citizenship and Immigration Services (USCIS) published the final version of a rule that impacts certain employment-based immigrant and nonimmigrant visa programs. The long-awaited rule is the agency’s way of legitimizing business immigration processes that were previously unofficial. With publication of the Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, these practices now have legal effect. Starting on January 17, 2017, the rule will provide various benefits intended to improve the ability of US companies to hire certain immigrant and nonimmigrant workers. Here are some of the key provisions you should discuss with an experienced immigration attorney to determine how they may impact you.

Employment-Based Immigrant Visa Programs: This category of programs under the Immigration and Nationality Act includes individuals who are seeking permanent residency in the US based upon employment. There are five classification levels, ranging from highly achieved workers to unskilled laborers. The new rule:

  • Provides guidance on the portability of approved I-140 immigration petitions in the EB-1, EB-2, and EB-3 classification levels. In the case of a worker within these preference groups, a Form I-140 that has been approved for 180 days or longer will not be automatically revoked based on withdrawal by the petitioner or termination of the petitioner’s business;
  • Authorizes certain beneficiaries of approved EB-1, EB-2, and EB-3 Form I-140 petitions to adjust status or change jobs without invalidating their approval status; and,
  • Grants a 60-day grace period for certain individuals who are no longer working for the employer who sponsored them.

Employment-Based Nonimmigrant Visa Programs: Nonimmigrant classification extends to those individuals who seek to enter the US for a specific time period. In general, visas granted under these programs do not lead to permanent resident status because of the temporary nature of the person’s stay. The final rule becoming effective in January 2017 has a considerable impact on those holding an H-1B visa, which covers specialty occupations in the areas of technology, medicine, engineering, architecture, accounting, finance, and other industries.

  • It describes the eligibility requirements for portability and the specific time period that employment in the US is authorized;
  • It explains the detailed filing requirements for certain H-1B visa holders that require an occupational license to work; and,
  • The new rule establishes requirements for extending H-1B status beyond the six year limit granted for most visa holders.

In addition, the rule provides a six month work authorization extension for individuals who have a renewal application pending before the USCIS.

A Knowledgeable Immigration Lawyer Can Help

The final rule on employment-based visa programs is intended to streamline certain business immigration processes, but it’s still important to work with an experienced immigration lawyer to ensure compliance with all USCIS rules. The regulatory scheme is extremely complex and an attorney can help you navigate the requirements. The lawyers at Kriezelman Burton & Associates, LLC have more than 40 years of experience in handling employment-based visa programs, so please contact our Chicago office to hear more about our immigration services.

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