This third and final part in our series of helpful immigration-related reminders for employers is based on developments from the past year that will continue to impact employers in 2017. [See also Part 1 and Part 2.]
New Regulation for High-Skilled Workers
A final rule went into effect, on January 17, 2017, that makes regulatory changes of which employers should be aware. Some key provisions include:
- Once an I-140 is approved, unless it is revoked due to fraud, misrepresentation, orS. Citizenship and Immigration Services (USCIS) error, the priority date may be used for any other I-140 filed on behalf of the same beneficiary.
- After 180 days elapse, following the approval of an I-140, the USCIS will only revoke the petition due to fraud, misrepresentation, or USCIS error. Beyond the 180-day mark, withdrawal of an approved I-140 by the petitioner will not result in revocation of the petition. The I-140 generally still cannot be used for purposes of filing an I-485 through a different employer, or for a different position with the same employer; but, it can be used to extend H1B status past the standard 6-year-max and for a dependent spouse to evidence eligibility for an H-4 employment authorization document (EAD).
- Employee eligibility for an I-140 EAD if the foreign national can demonstrate “compelling circumstances.”
More detail on the new regulation is available in the MurthyDotCom NewsBrief, Overview of Final Regulation for High Skilled Workers (23.Nov.2016).
DHS STEM OPT Proposed Rule
On May 10, 2016, a new STEM OPT rule went into effect, allowing qualified foreign national graduates to apply for a 24-month OPT extension. This is an increase over the previous STEM OPT rule that only provided for 17-month extensions. However, the new rule also imposes a number of additional requirements for companies wishing to employ STEM OPT workers. More details on the program, and requirements for employers, are available in the MurthyDotCom NewsBrief, 24-Month STEM OPT Effective from May 10, 2016 (08.Apr.2016).
Conclusion
Stakeholders must be mindful of changes in U.S. immigration law. Stay tuned to MurthyDotCom in 2017 to remain abreast of all the latest news and information that has the potential to impact foreign national employees and their respective employers.
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