DHS Finalizes Minor Regulatory Improvements for E, H, L and O Visa Holders

On November 18, 2016, the U.S. Department of Homeland Security (DHS) issued the final rule, Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, to take effect on January 17, 2017. The final rule establishes additional security and flexibility for high-skilled immigrants in the United States while working to ease some of the current programmatic challenges. This Alert highlights key components of the final rule.

Grace Periods

The final rule establishes a one-time 60-day grace period (or the duration of the existing work authorization, whichever is shorter) for non-immigrant workers when their underlying employment ends. DHS has authorized this grace period for workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN status. The grace period does not allow for employment authorization; however, this provides a proscribed duration of time in which the non-immigrant may either wrap up affairs in the United States or seek other employment and employment sponsorship.

In addition, the final rule extends the 10-day grace period to E-1, E-2, E-3, L-1 and TN nonimmigrants (and their dependents), which is presently available to H-1B workers. Workers would have 10 days before the petition validity period (or other authorized validity period) and 10 days after the end of the validity period in which they may apply for and be granted an extension of stay or change of status. They may also start employment under H-1B portability provisions.

H-1B Extension Beyond the Sixth Year

The final rule confirms that a foreign worker may rely on a current I-140 approval and qualifying I-140 petition to extend his or her stay in H-1B status beyond the sixth year consistent with the regulations under the American Competitiveness Act of the 21st Century. The final rule clarifies that the foreign worker must apply for adjustment of status within one year of priority date eligibility to remain eligible for the extension of H-1B status.

Clarification of H-1B Portability

Provided that the foreign worker remains eligible for H-1B status and that each petition meets the individual requirements to qualify for H-1B status, a foreign worker may have successive change of employer petitions filed on his or her behalf.

Expansion of H-1B Cap Exemption

Under the new rule, H-1B petitions filed by a nonprofit entity affiliated with an institution of higher education will be considered cap exempt on the basis of a written affiliation agreement with an institution of higher education, provided the agreement establishes an active working relationship between the nonprofit entity and the institution for purposes of research or education and that one of the nonprofit entities may directly contribute to the education or research mission of the institution.

Eligibility for Employment Authorization in Compelling Circumstances

Non-immigrant workers (E-3, H-1B, H-1B1, L-1 and O-1) with approved Form I-140 petitions who cannot obtain an immigrant visa due to priority date retrogression will be allowed under the final rule to apply for separate employment authorization for a limited period if there are compelling circumstances that, in the discretion of DHS, justify the issuance of employment authorization. The final rule does not define compelling circumstances, but gives such examples as a serious illness or disability, an employer dispute or retaliation, substantial harm to the applicant and family or a significant disruption to the employer.

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Trump Names Gen. Kelly To Head DHS

President-elect Donald J. Trump on Monday officially nominated Gen. John Kelly to serve as secretary of the U.S. Department of Homeland Security, saying his decades of military service and deep commitment to fighting the terrorism threat inside the nation’s borders make him ideal. He is the third general chosen for the Trump administration, following the selection of Lt. Gen. Michael Flynn as national security adviser and former Marine Corps Gen. James Mattis as defense secretary.

Trump said in a statement that Kelly is the right person to spearhead the “urgent mission” of stopping illegal immigration and securing the nation’s borders, streamlining the Transportation Security Administration and improving coordination between the country’s intelligence and law enforcement agencies.

“With Gen. Kelly at the helm of DHS, the American people will have a leader committed to our safety as well as one who will work hand-in-hand with America’s rank-and-file TSA, [Immigration and Customs Enforcement] and Border Patrol officers,” Trump said.


Kelly previously led the U.S. Southern Command, which handles U.S. military activity in the Caribbean and Latin America, and has raised alarms about border security. In testimony to the Senate Armed Services Committee in 2015, Kelly said he was worried that smuggling networks are “a vulnerability that terrorists could seek to exploit.”

As the head of DHS, Kelly would oversee three major agencies impacting immigration: U.S. Citizenship and Immigration Services, U.S. Customs and Border Patrol and U.S. Immigration and Customs Enforcement. There’s no word yet on who will lead those agencies, and it’s unclear whether Kansas Secretary of State Kris Kobach — an immigration hardliner who appeared to be in the running for the DHS top post — is being considered for other positions.


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DACA: Will there be life after Trump?

Even though President-elect Trump has stated that he will end DACA after he is inaugurated on January 20, 2017, nobody knows for sure what will happen with the program next year. 

Until that time, USCIS is continuing to process DACA applications and extensions, as well as travel documents. If you have an application pending or are eligible for an extension, you should be sure to pursue all of your options at this time.

The Immigrant Legal  Resource Center, has published a helpful memo on what’s next for DACA and what DACA holders and all of us should be doing now to prepare for any impending changes. 

ILRC DACA What’s Next Memo





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USCIS Seeks to Calm Immigration Fears

uscis_sig_rib_vertOn Monday November 21, 2016 at 1:20 PM USCIS sent out the following email to all of its stakeholders, trying to quell fears and answer questions about the current processing of immigration applications. USCIS is continuing with business as usual. All applications are being processed. Nothing will change, if at all until the new administration comes into office on January 20, 2017.

Many USCIS customers have been contacting us with questions regarding current immigration programs and possible future immigration policies. We continue to process all applications, petitions, and requests consistent with current statutory laws, regulations, and policies. USCIS cannot comment on what sort of policies the incoming Administration may choose to prioritize or pursue.  We remain focused on our mission to administer U.S. immigration laws and to provide a high level of service to our customers.

 We encourage the public to be extra vigilant about immigration scams. Scammers take advantage of times of uncertainty. For information on protecting yourself and your loved ones, visit uscis.gov/avoidscams. Remember, the wrong help can hurt!

 To check the status of a pending application, petition, or request, go to Case Status Online. You will need a receipt number. You can also call us at 1-800-375-5283 (TDD for deaf and hard of hearing: 1-800-767-1833) or make an appointment at a local field office at infopass.uscis.gov.

 If you need general information about immigration benefits or current policies, you can “Ask Emma” at uscis.gov.

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New Smart I-9 Form goes Live on USCIS.gov

The New “Smart”I-9 form has gone live on the USCIS.gov site, so employers are able to now use it from the USCIS.gov website.  However, the new form is not required to be used by employers until January 22, 2017. 

Below is a recent press release from USCIS with the new form information:

Changes are designed to reduce errors and enhance form completion using a computer

WASHINGTON — U.S. Citizenship and Immigration Services (USCIS) today published a revised version of Form I-9, Employment Eligibility Verification.

By Jan. 22, 2017, employers must use only the new version, dated 11/14/2016 N. Until then, they can continue to use the version dated 03/08/2013 N or the new version. 

Among the changes in the new version, Section 1 asks for “other last names used” rather than “other names used,” and streamlines certification for certain foreign nationals.

Other changes include:

The addition of prompts to ensure information is entered correctly.

The ability to enter multiple preparers and translators.

A dedicated area for including additional information rather than having to add it in the margins.

A supplemental page for the preparer/translator.

The instructions have been separated from the form, in line with other USCIS forms, and include specific instructions for completing each field.

The revised Form I-9 is also easier to complete on a computer. Enhancements include drop-down lists and calendars for filling in dates, on-screen instructions for each field, easy access to the full instructions, and an option to clear the form and start over. When the employer prints the completed form, a quick response (QR) code is automatically generated, which can be read by most QR readers.

Form I-9 requirements were established in November 1986 when Congress passed the Immigration Reform and Control Act (IRCA). IRCA prohibits employers from hiring people, including U.S. citizens, for employment in the United States without verifying their identity and employment authorization on Form I-9.

For more information about USCIS and its programs, please visit uscis.gov or follow us on Twitter (@Everify), YouTube (/uscis), Facebook(/uscis), and the USCIS blog The Beacon

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Immigrants Have Constitutional Rights No Matter What

President-Elect Donald Trump’s statements about immigration  are causing worry and fear in our immigrant communities.  We don’t know anything about his plans or what Congress will support once he is in office, but what we do know is that immigrants, even undocumented ones are protected by the U.S. Constitution.

As a reminder to immigrant communities, the National Immigration Law Center released a helpful guide this week which explains what individuals should do if they encounter law enforcement or Immigration and Customs Enforcement (ICE) officials.

The reminders include:

  • You have the right to remain silent. You may refuse to speak to immigration officers.
  • Do not open your door (ICE must have a warrant signed by a judge to enter).
  • You have the right to speak to a lawyer.
  • Before you sign anything, talk to a lawyer.
  • Always carry with you any valid immigration document you have.
  • If you are worried that ICE will arrest you, let the officer know if you have children.
  • Carry a “know-your-rights card” and show it if an immigration officer stops you.

Stay strong.  No matter our immigration status, color, creed, religious belief or any other label those who want to divide us can think of, we are Americans and  the American Dream lives through us, by us and for us.


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Equal Justice for All…2016 Pro Bono Projects

When I am not working with my clients on their immigration matters, I am leading Duane Morris’s pro bono program. In 2016 our attorneys will provide over 27,000 hours of free legal services to the poor and disenfranchised in our communities, including veterans, victims of trafficking, immigrants, children and others. Please enjoy our 2016 report.

Duane Morris 2016 Pro Bono Report

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