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USCIS Final Rule Granting 60-day Grace Period to H and Other Visa Holders

By Keshab Raj Seadie | November 21, 2016

IMPACT ON H-1B TRANSFER OR EXTENSION BEYOND 6-YEAR USING WITHDRAWN I-140

visa stamp travel The Final Rule allows H-1B Transfer, Extension beyond 6-year so long as the I -140 has been approved for more than 180 days. Apparently it can also be used to extend the H-4 and obtain H-4 work permit (EAD).
Under the final rule, beyond 6th year H-1B transfer or extension as well as H-4 status and EAD Can be obtained even if the sponsoring employer withdraws the approved I-140 or goes out of business. In case of revocation by USCIS due to fraud, material misrepresentation or material error, I-140 approval cannot be used for the foregoing H-1B extension/transfer and H-4 EAD.

The Final Rule allows Retention of Priority Date originating from withdrawn I-140

The final rule allows to retain the original I-140 priority date so long as the I -140 has been approved for more than 180 days even if the sponsoring employer withdraws the approved I-140 or goes out of business. In case of revocation by USCIS due to fraud, material misrepresentation or material error, the portability of I -140 priority date is prohibited.

One time 60-day Grace Period after H-1B Employment Termination

H-1B visa holders are allowed a one-time grace period of sixty (60) days after termination of H-1B employment (prior to expiration of H1B I-94 or authorized stay) to allow H-1B workers and their H-4 dependents much needed time to seek H-1B transfer, change of status or prepare for the departure. This rule also applies to E-1, E-2, E-3, H-1B1, L-1, O-1 and TN status and their dependents.

Automatic Employment Authorization During EAD Extensions .

The proposed rule seeks to allow for automatic and continued employment authorization for up to 180 days for certain types of employment authorization document (“EAD”) renewals so long as the EAD renewal application is filed prior to the expiration date and remains pending after the current EAD term’s expiration. Only certain types of EADs such as EAD originating from pending I-485 is eligible but H-4 based EADs are not.

GRANT OF SELF PETITION EAD BASED ON EXTREME HARDSHIP TO THE H-1B EMPLOYER OR EMPLLOYEE
The Final Rule allows certain high-skilled individuals in the United States with E-3, H-1B, H-1B1, L-1 or O-1 nonimmigrant status to apply for employment authorization for a limited period, if they meet the following conditions:
  1. They are the principal beneficiaries of an approved Form I-140 petition,
  2. An immigrant visa is not authorized for issuance for their priority date, and
  3. They can demonstrate compelling circumstances exist that justify DHS issuing an employment authorization document in its discretion.

Such employment authorization may only be renewed in limited compelling circumstances and only in one year increments. Even though its not been defined, we can consider “Hardship” but not “Extreme Hardship” principle established by the immigration courts in relation to the cases involving waiver and cancellation removal:

Health of the principal H-1B holder, dependent Spouse and Child and need to earn additional income to deal with this unforeseen situation or need to relocate to different area for treatment;

Changed Country Condition due to political or humanitarian crisis in home country;

Employer Retaliation originating from Department of Labor Wage and Hour Complaint;

Denial of H-1B due to employer and need to restore status quo to protect the interest of the H-1B holder;

U visa type of scenario in which the H-1B holder becomes witness in a criminal or civil case.

More detailed article to follow soon…