New Final Rule to Impact Highly Skilled Foreign Workers

On November 18, 2016, the Department of Homeland Security (DHS) released a Final Rule affecting highly skilled foreign workers in an effort to retain these workers in the U.S. workforce. The Final Rule will take effect on January 17, 2017. Key provisions include: clarification on H-1B portability and the H-1B 7th-year extension; retention of I-140 priority date and validity for employment-based petitions under first, second, and third preference categories; implementation of grace periods to certain visa categories in case of job loss; and many others.

Among the changes, the modification of Employment Authorization Document (EAD) processing is probably the most significant, as the following changes impact many employers:

  • United States Citizenship and Immigration Services will no longer be required to process EAD applications within 90 days, but EAD renewal applications can be submitted as early as 180 days before the current EAD expires.
  • Automatic extension of EAD will be given for up to 180 days to some categories. The employee must show that an extension application was submitted timely and that the requested category remains the same. For I-9 purposes, employees can provide their expired EAD with the I-797 Receipt Notice showing that the application was submitted timely.
  • Automatic extension will not be available to Deferred Action for Childhood Arrivals (DACA) beneficiaries, E-1/E-2/E-3 dependent spouses, H-4s, and L-2s.

As always, members with questions on immigration or any other employment-related topics are encouraged to call MSEC.