As a follow up to our December 2016 blog regarding the Department of Homeland Security’s (DHS) new regulations for employment-based and nonimmigrant visa programs, we outline in further detail below a couple of the key aspects of the regulations, which are scheduled to go into effect on January 17, 2017.

1. New Employment Authorization Document (EAD) for Compelling Circumstances

The regulations provide for a new, limited option for foreign workers who are waiting for an immigrant visa number to become available to independently apply for employment authorization.  This way, they can continue their application for permanent residence if they can demonstrate that they are not able to keep their nonimmigrant visa status because of compelling circumstances.

Specifically, 8 CFR §204.5(p) provides for eligibility for a one-year period of employment authorization in compelling circumstances for employees who:
1. are currently in the U.S. in valid E-3, H-1B, H-1B1, O-1 or L-1 status (including the designated 10-day and 60-day grace periods),
2. are the principal beneficiary of an approved EB-1, EB-2 or EB-3 immigrant visa petition,
3. do not currently have an immigrant visa immediately available, and
4. can demonstrate compelling circumstances.

The regulation provides that family members of the employee are also eligible for employment authorization. They may apply concurrently with the principal employee but their application cannot be granted until the principal’s application is granted and the validity period of their employment authorization cannot exceed that granted to the principal.

The regulation further provides for the renewal of employment authorization prior to expiration of the initial EAD if the individual can show that he or she continues to be the principal beneficiary of an approved EB-1, EB-2 or EB-3 immigrant visa petition and either an immigrant visa is still not immediately available and the worker continues to face compelling circumstances, or the difference between the principal beneficiary’s priority date and the Final Action Date listed in the current Visa Bulletin for the relevant employment-based category and country of chargeability is 1 year or less. Family members can also apply for renewal under the same conditions as their initial EAD.

While DHS did not define “compelling circumstances,” they indicated it may include changes in terms of employment or corporate restructuring which removes the employee’s nonimmigrant visa eligibility; a medical illness or disability for the employee or a family members that requires them to relocate or seek new employment; or other circumstances that would force the foreign worker to depart the US and abandon the green card process.

The test of “compelling circumstances” is subjective, to be applied on a case-by-case basis considering the totality of the circumstances. This may inevitably result in inconsistent decision making.  Further, the regulation provides for eligibility for an employment authorization document only; it does not provide the employee with a valid nonimmigrant status. Therefore, the employee may not be eligible to apply for permanent residence unless they re-enter the US in a new nonimmigrant visa status then adjust status to permanent resident, or they apply for permanent residence at a US Consulate abroad. Further, for the first EAD, work authorization would not begin until the application is approved–which may take more than 90 days–so this would still leave eligible workers with an employment gap.

2. Employment Authorization Document (EAD) Automatic Extensions

The government has added new benefits and eliminated a benefit, effective January 17, 2017.

New Benefits:
• For most EAD applications, the employee receives an automatic extension of their EAD as long as we submit an application for an EAD extension timely.  The extension is valid while the EAD application is pending or until a maximum of 180 days.  This accommodation helps prevent gaps in authorization.  However, they may still require an approval of the EAD to renew their US driver’s license.  HR Tip!  For employment authorization, HR can rely on the Receipt Notice confirming the 180 day extension.
• For most EAD applications, they can be submitted 180 days in advance of expiration, instead of the current 120 day period in advance of expiration.  This benefit is very important, given the news below.

Elimination of Benefit:
• The government no longer promises to make decision on EAD application in 90 days.  TIP! Especially for first-time EAD applicants, it is very important for clients to work quickly with our office so we can prepare and submit your EAD applications as close to 180 days in advance as possible.

3. New Grace Period When Temporary Work Status Ends

Another key and much welcomed element of the new regulations that will be effective January 17, 2017 is 8 CFR §214.1(l)(2), which authorizes a grace period of up to 60 days during the period of petition validity (or other authorized validity period) for E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN nonimmigrants whose employment has ended.  This rule minimizes the current drastic consequences for employees who have temporary work status and who suddenly do not have a sponsoring employer anymore. This regulation is designed to assist foreign workers to avoid the negative consequences of failing to properly maintain status and also keeps the door open for them to apply for new nonimmigrant status while still in the US rather than needing to depart and apply at a US Consulate in their home country.

Family members are included in this provision. This 60-day grace period is permitted one time per each approval notice period and DHS may shorten the validity period as a matter of discretion.

More detailed information on these changes can be found at the following link: http://www.regulations.gov. Enter “USCIS-2015-000” in the “Search” box.

As outlined previously, the final regulations will take effect just 3 days before the Inauguration of the new President. As outlined in our recent blogs Part I and Part II on U.S. election impacts, the President-elect’s immigration platform has been strongly in favor of prioritizing U.S. workers. Nevertheless, we do not anticipate these specific regulations to be a high priority for repeal.  We will continue to closely monitor how these new regulations can help employers and employees in practice.