NewsFlash! Advance Copy of final I-140 EAD and More Released!

An advance copy of the final rule, entitled Retention of EB1, EB2, and EB3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, has been released; it is scheduled to be published in the Federal Register on Friday, November 18, 2016. It is scheduled to go into effect sixty (60) days after publication.

The final rule is very similar to the proposed rule. However, a few highlights of the changes made to the final rule from the proposed version include the following:

• The rule allowing certain I-140 beneficiaries to apply for employment authorization documents (EADs) appears to still be extremely restrictive; although some minor changes were made from the original version, it still seems that only a very small number of foreign nationals are likely to qualify.

• Under the final rule, “workers may retain priority dates and transfer those dates to new and subsequently approved form I-140 petitions, except when the U.S. Citizenship and Immigration Services (USCIS) revokes approval of the petition for: material error, fraud or willful misrepresentation of a material fact, or revocation or invalidation of the labor certification accompanying the petition.” This language is very similar to what was in the proposed rule, but the final rule clarifies that only a “material error,” rather than simply any type of USCIS error, can be a basis for losing one’s priority date.

• The final rule provides a little more flexibility with regard to the 10-day nonimmigrant grace period.

More details on the proposed rule are available in the MurthyDotCom NewsBriefs, I-140 EAD Proposal is Limited and Restrictive (08.Jan.2016) and Priority Date Retention & I-140 Revocation Protections: Proposed Regulation. The Murthy Law Firm’s suggested changes to the proposal were summarized in the MurthyDotCom NewsBrief, Murthy Law Firm’s Comments on Proposed Rule for I-140 EAD, and More (04.Mar.2016).

A more detailed analysis of the new rule will be posted on MurthyDotCom in the near future. Subscribe to the free MurthyBulletin to remain informed on this and other important issues related to immigration law.

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