The US Citizenship and Immigration Services published a 'final rule' (Retention of EB1, EB2, and EB3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers) that will have a positive impact on certain employment-based nonimmigrant visa categories including the H-1B visa. The stated purpose of the rule is to improve the ability of US employers to hire and retain high-skilled foreign workers, increase the ability of these workers to pursue new employment and provide greater stability and job flexibility for them. The final rule will come into effect on January 17, 2017.

Key provisions affecting the H-1B Program under the final rule are highlighted below:

60-day grace period for loss of employment

Under the new rule, a H-1B worker whose employment is terminated or ends before his authorized validity period will get a grace period of up to 60 consecutive days, or until the existing validity period ends, whichever is shorter. This grace period will provide an opportunity to the worker to look for new employment or apply for change of status while being lawfully the US, without having to leave the country.

Under the current regulations, although there is no explicit provision requiring a terminated H-1B worker to depart the US immediately, such workers have had to leave the country immediately in order to not accrue unlawful status in the country. Decisions in such cases have been largely at the discretion of the adjudicating immigration officer.

EAD available in 'compelling circumstances'

Under the final rule, certain H-1B workers can apply for separate one-year EAD (Employment Authorization Document) in order to avoid difficult employment situations, such as having to leave the country due to visa backlogs. In order to qualify for this EAD, the H-1B individual must (i) be in H-1B status at the time of making the application, (2) be the principal beneficiary of an approved I-140 petition, (3) establish that an immigrant visa is not available on the date the application is filed, and (4) demonstrate "compelling circumstances" that justify DHS (Department of Homeland Security) granting an EAD in its discretion.

Family members of foreign nationals who qualify under these provisions may also apply for an EAD. The validity period of employment authorization is limited to one year and may be renewed in one-year increments. The final rule does not define "compelling circumstances" which will be determined on a case-by-case basis.

H-1B Portability

The final rule codifies longstanding DHS policies regarding H-1B job portability. To be eligible for H-1B portability, the new H-1B petition must have been filed while the foreign worker is in H-1B status or is in a period of authorized stay based on a timely filed H-1B extension petition. Employment authorization under the pending H-1B portability petition continues until adjudication. The final rule allows H-1B employers to file successive H-1B portability petitions ("bridge petitions") on behalf of H-1B nonimmigrant workers. Successive H-1B portability petitions provide employment authorization as long as each such H-1B portability petition separately meets the requirements for H-1B classification and for an extension of stay.

Whistleblower Protections

The final rule enhances worker protection by providing whistleblower protections in cases of retaliation by the worker's employer. If a foreign worker faces retaliatory action from his or her employer based on a report regarding a violation of the employer's LCA obligations, the DHS may consider any loss or failure to maintain H-1B status by such foreign worker related to such violation as an "extraordinary circumstance" and could grant the worker a discretionary extension of H-1B stay or a change of status to another nonimmigrant classification.

Although there is a lot of uncertainty and speculation surrounding the H-1B program under the new Tramp administration, these changes under the final rule by the USCIS are a step towards easing certain provisions and making the H-1B program friendlier and more welcome for foreign workers.

Source: Federal Register, accessed at --

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.