United States: USCIS Publishes Proposed Regulations Codifying Many Of Its Existing Administrative Policies With Some Modifications: Comment Period Ends On February 29, 2016

On December 31, 2015, U.S. Citizenship and Immigration Services (USCIS) published proposed rules in the Federal Register. Many of the proposals codify existing USCIS administrative memoranda and decisions with some modifications. The following are some of the key proposals.

  • One-time 60-day grace period after the end of employment for foreign national workers in E, H-1B, L and TN employment-based nonimmigrant visa statuses (e.g., after a layoff, etc.). This would allow foreign national workers to find another employer to sponsor them for a work visa or give them time to settle their affairs in the United States before returning to their home country. The current regulations give only a 10-day grace period upon the completion of a nonimmigrant visa petition, but no grace period if employment ends early (e.g., after a layoff, etc.), which means the foreign national worker has to immediately depart the United States, giving them no time to find another employer to sponsor them for a work visa or time to settle their affairs in the United States.
  • Codifies which organizations are exempt from the annual H-1B cap, and this includes universities, nonprofit research organizations, government research organizations and related or affiliated nonprofit organizations.
  • Codifies H-1B portability, which allows H-1B workers who change employers to begin work with a new employer as soon as a change of employer H-1B petition is filed, as opposed to waiting for the petition to be approved.
  • Codifies three-year H-1B extensions under AC21, which allows H-1B workers to extend their H-1B status beyond the six-year maximum when they have approved I-140 immigrant petitions but cannot receive their green card due to the immigrant visa priority date backlog.
  • Codifies one-year H-1B extensions under AC21, which allows H-1B workers to extend their H-1B status beyond the six-year maximum when they have filed a PERM Labor Certification or I-140 immigrant petition 365 days before the six-year maximum is reached and/or they file for an adjustment of status or an immigrant visa within one year of their being eligible (immigrant visa priority date is reached).
  • Special eligibility for H-1B whistleblowers, which allows H-1B workers, who face retaliation from employers for reporting violations of the H-1B Labor Condition Application, to change to another employer or status even if the retaliating employer has already terminated them.
  • Codifies adjustment of status portability, which allows foreign national workers with approved I-140 immigrant petitions and adjustment of status applications that have been pending for 180 days or more to change jobs provided that the new position is in the "same or similar occupational classification" as the one included in the original approved I-140 petition. The foreign national workers are then later allowed to complete the green card process once their immigrant visa priority date becomes current, provided their original I-140 immigrant petition is not revoked for fraud or misrepresentation. The proposed rule has a broad provision that would allow a second adjudicator to decide the prior I-140 immigrant petition approval was in "error," which would also prevent a foreign national worker who has already changed employers to complete their green card process. Employers should consider submitting comments on this proposed rule to remove the provision that would allow USCIS to decide years later to second-guess the approval of an I-140 immigrant petition where there was no fraud or misrepresentation.
  • Automatic EAD extensions, which would give certain foreign national workers renewing their Employment Authorization Document (EAD) an automatic extension of 180 days of employment authorization while their application is pending if they are renewing in the same category before their current EAD expires. Additionally, expired EADs and receipt notices showing the EAD renewal was timely filed would serve as I-9 evidence.
  • EADs for certain workers with approved I-140 petitions, which would allow E-3, H-1B, H-1B1, L-1 or O-1 nonimmigrant status holders and their dependents to apply for a one-year EAD if they meet a number of criteria, including if they "face 'compelling circumstances,' such as a geographic move due to serious illness or disability; employer retaliation; other substantial harm if required to return home; or significant disruption to their employers." Employers should consider submitting comments on this proposed rule as USCIS has made the requirements for EADs without pending I-485 applications narrow, as to benefit only a limited number of foreign national workers. Expanding the qualifications for this benefit would likely help foreign national workers and U.S. employers.

Simeio Safe Harbor Ended on January 15, 2016

Per the USCIS policy memorandum based on the Administrative Appeals Office's decision in the Matter of Simeio Solutions, LLC, after January 15, 2016, if an H-1B employee changes worksite locations to a different Metropolitan Statistical Area, an amended H-1B petition must be filed beforehand. There will no longer be any exceptions, as the safe harbor expired on January 15, 2016, which allowed for the late filing (on or before January 15, 2016) for H-1B employee worksite moves to a different Metropolitan Statistical Area that occurred between April 9, 2015 to August 19, 2015.

Effective February 16, 2016, H-1B1 and E-3 Workers with Timely Filed Extensions with USCIS Remain Work Authorized for up to 240 Days While the Extension Is Pending

The Department of Homeland Security final rule, which becomes effective on February 16, 2016, grants H-1B1 (Chile/Singapore) and E-3 (Australia) workers the same benefit of 240 days of continued work authorization for timely filed extensions with USCIS as H-1B and TN workers already receive.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions