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High Skilled Rule

A Silver Lining – Amended regulations relating to certain employment-based immigrant and nonimmigrant visa programs.

Amid the uncertainty amongst the immigrant communities following last week’s election outcome, there is something to cheer for.  The Department of Homeland Security is amending its regulations that will ensure several positive improvements for foreign national employees and their employers.  Many of these changes are primarily aimed at improving the ability of U.S. employers to hire and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful 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. This will be effective starting January 17th 2016 and so will not be impacted once the new government assumes office on January 20th 2016.  Some of the key proposed changes are:

  • Provides that workers may retain priority dates and transfer those dates to new and subsequently approved Form I-140 petitions, except in certain limited circumstances
  • Allowing for the automatic extension of EADs for up to 180 days for certain workers filing renewal requests.
  • Authorize a one-time 60-day grace period for individuals in certain non-immigrant visa classifications (including H-1B, L-1, O-1) if their employment suddenly ends during the period of petition validity.
  • An immigrant petition (I-140) may remain valid despite withdrawal by the employer or termination of the employer’s business after 180 days or more of approval, or 180 days or more after the associated application for adjustment of status has been filed.

These changes will offer a lot of flexibility to foreign employees, especially those from India and China, who have been in the United States for several years on H-1B visas because of the immigrant visa backlog.  While the rule shall be effective starting January 17th 2016, I would not hesitate to bring this to an Immigration officer’s attention in the event an employee has been laid off and has found a new job several weeks after the termination of his current employment.  Please contact the Law Offices of Sweta Khandelwal should you require any assistance in the understanding of this provision and its applicability to your business, yourself and/or your family, or any other immigration matter.





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