I-140 EAD Rule – No Surprises In The Final Regulation

Rahul Reddy, Attorney at law

The final regulations for the long-awaited “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program, Improvements Affecting High-Skilled Nonimmigrant Workers” have been released, and will be published in the Federal Register November 18, 2016. The rules will go into effect 60 days afterwards.

These regulations have sometimes been known as the “I-140 EAD rule,” due to its provision of work authorization for certain beneficiaries of approved I-140 immigrant petitions. However, as discussed in our office’s previous analysis of the proposed I-140 EAD (see http://rnlawgroup.com/news/509-i-140-ead-rule-big-bluff-by-the-administration), the EAD will only be available to I-140 beneficiaries in limited, “compelling” circumstances, and for a limited duration, making it of little practical use to the large majority of I-140 beneficiaries waiting to file for adjustment of status.

Other portions of the rule, however, do impact large numbers of workers in various stages of the non-immigrant and immigrant visa process. Some of these provisions include:

60-day grace period for H-1B workers in event of employment termination

  • Under the current rule, H-1B workers are considered in status only as long as they are working for their approved H-1B petitioner. Termination of employment would render the H-1B beneficiary automatically out of status, leaving the applicant with limited time and options to seek new employment.

  • Under the new rule, H-1B workers will be accorded a grace period of up to 60 days in the event of employment termination, only during the petition’s existing validity period. This means that if the H-1B petitioner terminates a worker before the end-date on the I-797 Approval Notice, the worker has 60 days from that date to file a change of status, extension of status, or change of employer petition, without being considered out of status. 

  • Please note the grace period does not apply if the validity date of the H-1B petition has already passed. 

Extending H-1B status beyond the 6th year when an I-140 approval has been withdrawn  

  • Under the current rules, an H-1B worker’s ability to apply for 3-year extensions beyond the 6th year depended on an approved I-140 petition. If the I-140 petitioner chose to withdraw the approval, the H-1B worker’s would not be eligible to apply for an extension, unless a new I-140 was approved in time.

  • Under the new rule, if the I-140 petition has been approved for at least 180 days, its subsequent withdrawal by the petitioner will not affect the beneficiary’s ability to apply for H-1B extensions beyond the 6-year limit.

  • The priority date from the withdrawn I-140 petition can also be ported to a new I-140 petition.

 Automatic extension of EADs up to 180 days 

  • This applies to applicants with a pending I-485 Adjustment of Status application. Under the current rules, applying for an EAD renewal could result in a gap in employment authorization, as the new EAD was required to continue working, and I-765 processing times have routinely extended beyond the proscribed 90-day timeframe.

  • Under the new rule, applicants applying for an EAD renewal based on a pending I-485 application will receive an automatic 180-day extension of work authorization beyond the previous expiration date, if the renewal application has been pending more than 90 days. In addition, the window to file your I-765 application has been extended from 120 days to 180 days prior to the current EAD’s expiration date, also in an effort to reduce work authorization gaps due to USCIS’s increased processing times.

  •  Please note that the automatic 180-days EAD extension does not appear to apply to H-4 EAD or F-1 OPT applicants.

I-485 Supplement J

  • USCIS will be adding a form, called Supplement J, to its I-485 adjustment of status application. This form will serve the purpose of providing the government with information and details of the existing job offer for employment-based I-485 applicants.

  • Under AC21, an adjustment of status applicant may change employers after the I-485 application has been pending for at least 180 days, as long as the new position is in the “same or similar” occupational classification as the position listed in the I-140 petition.

  • Notifying the government of the change in employer and providing proof of the similarity in positions used to occur through a letter filed with the service center – the new Supplement J form will provide a uniform means to file this information with the government.

  • Supplement J will still need to be filed if there is no change in employer – the I-140 petitioner would sign the form as confirmation of the ongoing job offer.

I-140 EAD for Compelling Circumstances

  • As discussed earlier, the I-140 EAD, in practice, will only be available to a limited number of I-140 beneficiaries. The applicant must establish “compelling circumstances” warranting issuance of the EAD card, which may include: serious illness or disability of main applicant or dependent, geographic relocation causes undue burden to the applicant, employer retaliation, the beneficiary’s inability to maintain the nonimmigrant status, or significant disruption of the employer.

  • The EAD is meant to be a “stopgap,” and is only issued for one year, with an extension only available with proof of the continuing compelling circumstances, or if the priority date will become current within one year.

  • The EAD does not confer nonimmigrant status and would not allow applying directly for adjustment of status if the priority date becomes current.

Please continue checking Reddy & Neumann’s news section for updates concerning the provisions of the final rule, as they become available.