The Department of Homeland Security (DHS) recently issued a final rule related to certain employment-based immigrant and nonimmigrant visa programs.  The rule is set to go into effect on January 17, 2017, just days before Donald Trump’s inauguration as President.  The final rule is intended to conform regulations with long standing DHS practice and the statutory provisions of the American Competitiveness and Workforce Improvement Act of 1998, or AC21, which introduced a number of measures intended to better enable U.S. employers to employ and retain high skilled foreign workers who are beneficiaries of employment-based immigrant visa petitions.  It remains to be seen if Mr. Trump will push to eliminate these measures and/or fundamentally change the current employment immigration system that is currently in place.There are over ten main regulatory measures included in the final rule, three of which deserve special mention:

  1. Form I-140 Petition Validity.   An approved I-140 Immigrant Petition for Alien Worker forms the basis for an employment based green card. Under the current process, if a prior employer withdraws the I-140 petition, the I-140 approval could be revoked and the foreign worker may lose his or her ability to pursue a green card application. The final rule states that an I-140 that has been approved for at least 180 days won’t be subject to revocation due to a withdrawal by the employer or if the company goes out of business, as long as the approval of the I-140 application wasn’t withdrawn or revoked due to misrepresentation or fraud.These amended provisions improve the ability of certain foreign workers who have been sponsored for permanent residence by their employers, to accept new employment opportunities, pursue career advancement and contribute more fully to the U.S. economy. Hence, the final rule is seen as a benefit to both foreign workers and U.S. employers.
  2. 10-day nonimmigrant grace periods. The final rule allows an initial grace period of up to 10 days prior to the start of an authorized period of employment for certain nonimmigrants in order to enter the U.S. and prepare to begin employment in this country. The rule also provides a second grace period of up to 10 days at the end of an authorized validity period, in order to depart the United States or take other action to extend, change, or otherwise maintain lawful status. Similar grace periods are already available for those in H-1B, O, and P status. The final rule extends this benefit to persons in E-1, E-2, E-3, L-1, and TN status.
  3. 60-day nonimmigrant grace periods. To further enhance job portability, the final rule also establishes a grace period of up to 60 consecutive days during each authorized validity period for individuals in the E–1, E–2, E–3, H–1B, H–1B1, L–1, O–1 or TN classifications. This grace period allows high-skilled workers in these classifications, including those whose employment ceases prior to the end of the petition validity period, to more readily pursue new employment should they be eligible for other employer sponsored nonimmigrant classifications or employment in the same classification with a new employer. The grace period also allows U.S. employers to more easily facilitate changes in employment for existing or newly recruited nonimmigrant workers.

The ten and sixty day grace periods come as welcome news, providing greater flexibility for foreign workers to seek new employment in the event they are laid off, or to simply take a week prior to the start of a new job to find suitable housing, a school for their children, and generally attend to the other aspects of relocation to a new country.

Aside from the addition of the ten and sixty day grace periods, the final rule contains few new measures, but instead aligns DHS regulations with current law and agency practice.   These regulations are important and noteworthy, as they codify aspects of current immigrant legislation.  HRLegalist will continue to monitor developments as the new administration takes office. We urge our readers and any employers to consult with immigration counsel if you have any questions about how this new final rule will affect you.