On Nov. 18, 2016, the Department of Homeland Security (“DHS”) published its final rule to “modernize and improve” employment-based non-immigrant and immigrant visa programs. As stated by DHS, the primary purpose of the improvements is to enhance the ability of U.S. employers to hire and retain specific foreign national employees who are the beneficiaries of approved employment-based immigrant visa petitions. The improved rule puts in writing many DHS policies and practices that DHS has established in response to certain provisions of the American Competitiveness and Workforce Improvement Act of 1998. The final rule is effective on Jan. 17, 2017.

Key improvements, and potential impact to employers and foreign nationals, are listed below broken down by non-immigrant vs. immigrant processes:

Non-immigrant:

10-Day Non-immigrant Grace Period for Entering and Departing the United States : Similar to H-1B visa holders, non-immigrants who seek to enter the United States in E-1, E-2, E-3, L-1, or TN classification, may enter the United States as early as 10 days prior to the start of their petition validity. The rule also allows a second 10-day grace period for these non-immigrant visa holders to depart the United States or seek alternative visa arrangements at the conclusion of their petition validity. A 10-day grace period for non-immigrants to enter the United States prior to commencing employment allows non-immigrants to plan and secure housing, and become acclimated to their new environment prior to beginning work in the United States. A 10-day grace to depart the United States allows for non-immigrants to adequately wind down their affairs prior to departing the United States without violating their immigration statuses, and possibly jeopardizing their ability to obtain future immigration benefits as a result.

: Similar to H-1B visa holders, non-immigrants who seek to enter the United States in E-1, E-2, E-3, L-1, or TN classification, may enter the United States as early as 10 days prior to the start of their petition validity. The rule also allows a second 10-day grace period for these non-immigrant visa holders to depart the United States or seek alternative visa arrangements at the conclusion of their petition validity. A 10-day grace period for non-immigrants to enter the United States prior to commencing employment allows non-immigrants to plan and secure housing, and become acclimated to their new environment prior to beginning work in the United States. A 10-day grace to depart the United States allows for non-immigrants to adequately wind down their affairs prior to departing the United States without violating their immigration statuses, and possibly jeopardizing their ability to obtain future immigration benefits as a result. 60-Day Non-immigrant Grace Period : Non-immigrants who hold E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classification in the United States can remain in the United States for up to 60 consecutive days after their employment ends with their current Petitioner/Employer. A 60-day grace period for non-immigrants to remain in the United States allows the non-immigrant to seek alternative employment and visa sponsorship, or wind down their affairs in the United States without violating their immigration statuses, and possibly jeopardizing their ability to obtain future immigration benefits as a result. Non-immigrants who secure employment-sponsorship within the 60-day grace period may begin working for the new employer upon the filing or approval of the non-immigrant petition without first having to travel to a U.S. Consulate abroad for visa activation under a process known as consular notification.

: Non-immigrants who hold E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classification in the United States can remain in the United States for up to 60 consecutive days after their employment ends with their current Petitioner/Employer. A 60-day grace period for non-immigrants to remain in the United States allows the non-immigrant to seek alternative employment and visa sponsorship, or wind down their affairs in the United States without violating their immigration statuses, and possibly jeopardizing their ability to obtain future immigration benefits as a result. Non-immigrants who secure employment-sponsorship within the 60-day grace period may begin working for the new employer upon the filing or approval of the non-immigrant petition without first having to travel to a U.S. Consulate abroad for visa activation under a process known as consular notification. H-1B Duties Without Licensure : USCIS is permitting H-1B non-immigrants to work in occupations that normally require state licensure to practice fully the occupation under the supervision of a licensed senior personnel employee. For the H-1B non-immigrant to work in an occupation without a license, the Petitioner/Employer must provide evidence that it is fully complying with state requirements regarding licensure.

: USCIS is permitting H-1B non-immigrants to work in occupations that normally require state licensure to practice fully the occupation under the supervision of a licensed senior personnel employee. For the H-1B non-immigrant to work in an occupation without a license, the Petitioner/Employer must provide evidence that it is fully complying with state requirements regarding licensure. USCIS Processing Time for I-765, Application for Employment Authorization : USCIS is eliminating the 90-day processing time for applications for employment authorization documents (“EAD”), or EAD renewal applications, but will continue to process EAD applications within a “reasonable time.”

: USCIS is eliminating the 90-day processing time for applications for employment authorization documents (“EAD”), or EAD renewal applications, but will continue to process EAD applications within a “reasonable time.” Automatic Extensions for EAD Renewals : Upon the timely filing of an EAD renewal with USCIS for foreign nationals who are in the United States under temporary protected status, USCIS will automatically extend the existing EAD for 180 days while USCIS is adjudicating the TPS and EAD renewal applications.

Immigrant Visas: