New H1B Visa Rules That Will Benefit Foreign Workers

While non-immigrant job seekers in the US await changes to the H1B visa program in a Trump administration, the USCIS has quietly changed a few rules making life easier for current H1B visa holders.  This is a silver lining on the dark cloud looming over the H1B program, but will benefit those already working in the US and lessen the potential for being out of status unintentionally.

Rule Change: Terminated H1B Visa Holders

Not every job opportunity works out, and his can be especially troubling for a non-immigrant worker that becomes unemployed while in the US.  If an H1B visa holder is fired for any reason, they are technically required to return to their home country, unless they already have another job lined up and can transfer their H1B.  Otherwise, they could be out of status and in violation of immigration laws.

Previously, some terminated H1B visa holders were required to leave the US right away, although the decision was discretionary for the immigration officer. Naturally, the uncertainty of whether a visa holder is out of status could be stressful.  A new rule eases this burden, and effective January 17, 2017 the USCIS will grant terminated H1B workers a 60-day grace period to make plans to leave, or seek a new position.

Rule Change: H4 Visa Spouses of H1B Visa Workers – Extensions

There is a significant rule change affecting spouses of H1B visa workers who are allowed to seek a position while in the US with their spouse.  The H4 visa is dependent on the H1B spouse having a valid visa and sponsor, including any extensions of the visa period.  

Extensions for current sponsors and positions are typically approved.  However, the Employment Authorization Document (EAD) for the H4 spousal visa could not be issued during the approval period for extensions of the both the H4 and H1B visas.  

What this meant is the spouse could not legally work while awaiting approval of the extension, which could take months.  The new rule changes that restriction, and allows the H4 spouse to continue working while the H4 and H1B extension applications are pending.

Rule Change: Retaliatory Action by Employer

If an H1B worker has been subject to retaliatory action from their sponsor (specifically for any Labor Condition Application violations) then evidence of this will be sufficient for the USCIS to grant an extension of stay under the H1B visa.  This extension will be granted even if the worker failed to maintain lawful status with their H1B, such as finding a new position right away.

Rule Change: Form I-140 Petitions for Immigrant Work Visas

Some H1B visa holders that wish to work in the US long term will submit Form I-140 petitions for an immigrant work visa, and several restrictions have been eased for those applicants.  Previously, petitions would be invalidated if a worker changed jobs, was promoted or even jobs with the same employer.  Now, the rule changes allow for more portability of jobs for those who wish to apply for an immigrant work visa.  This should be of interest to both current and prospective H1B visa holders, because if the non-immigrant visa route is restricted in a Trump administration, then seeking an immigrant work visa may be a good strategy.  We will discuss what this process might look like in a future article.

If you have any questions about the H1B visa program, current requirements, how to find a sponsor and the best way to secure a visa, contact us at any time.

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  • December 2nd, 2016
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29 thoughts on “New H1B Visa Rules That Will Benefit Foreign Workers”

  1. Thanks for the great post. gives us quite some detail. looking forward to the future post so as to be able to re use my I 140 at a new job.

  2. Dear Sir/Madam,
    I am from Nepal, can I apply H1B visa? If yes then how to apply? Please kindly inform me the process and office which provide us H1B visa. Thank you.
    Mahima

  3. Dear Sir,
    Good day!!
    I have done B-Tech Mechanical Engineering and interested H1B visa.
    Moreover I already have B1/B2 visa.
    Regards,

  4. Hi,
    I need an information regarding H1B visa extension. Presently I applied for extension it is under process and I am staying in India is there any rules for such cases or same rules can apply me also.

    Thanks & Regards,
    Ram

  5. Guys
    I have h4 visa and I am looking for a sponsor to file h1b or I need EAD to work in US.. can anyone help on dis regard?

  6. Hi
    I got approval letter but quiet tense about an interview so can u guide me for further process and interview preparation

    Thanks

    1. I dont know akash if you already have gone to visa interview, but its quite easy and fun. Just be confident and smile. Give answers only the questions asked and make your answers as brief as possible, you are not there for a speech. Hope it helps 🙂

  7. Can you please give the details of the rule for h4 visa holders can apply for ead without waiting for visa extension . Has this rule already come?If not .Which date it’s going to come? Is there any other restrictions which has to be fulfilled?

  8. Thanks for the wonderful article. It provides a lot details regarding my case as my employer will terminate me soon. So after the termination, I will still have 60 days to find job. The problem here in USA that most desi consulting companies ask you to make fake resumes as this is the norm in the market, and I told my employer I will not do it as I already have 12 years of .Net experience. Anyway! I am hopeful that I will get a good job even with complete original resume 🙂

    1. Imran it is a shame that some companies have made this their business model. As am employer I can tell you this, if you have a good skill set ( that is command of your technical area) you will get a new job.

  9. hi, I have completed my current assignment and do not have a project yet. In mots likely case, my employer will be revoking my H1B, but my I140 is approved with them. So do I have 60days before I can leave the country?

  10. Hi,

    My H1B petition got approved in the year of 2016 and still stamping is not yet done. Whether this will be a problem after Trumph’s new H1B rules. Please

  11. Team, H!B petition got approved for me and stamping is not yet done. I am not sure whether i will be able to go for stamping after Trumph”s new rules regarding the package. Could you please clarity on this if you have more information. Thanks

  12. I am working in US for last 4 years after completing Masters from reputed University .I am holding valid H1B and my Green Card process have started ayear back through my employer and have reached a status of I140.
    and my wife can apply for EAD.What according to yoy new rules will have impact on my status?

  13. Hello Team
    I am supply chain supervisor working for American oil and gas company .. Due to oil price decrease I have been recently laid off from the company after 16 years experience ( work force reduction luck of budget ° recommendations are available from my previous managers if needed .. I am considering my self having good experience as I worked for several countries .. My last location was UK .. Aberdeen .. I am Algerian citizen and I am looking for a new opportunity in the USA .. so my question what is my chance to obtain a job in Texas or California I am interested as well on other states for sure ? Any advise you can provide me
    Best Regards
    Lamia B

  14. My I-140 approved (India/EB2) from Employer A in June 2015, I joined Employer B in Oct 2016.
    Employer A sent revocation of my I-140, on USCIS website today is showing below status:
    “On December 7, 2016, we received your correspondence for Form I-140 …”
    Will i still be eligible for 3 years of multiple H1 extension with my approved I-140 from employer A without filing new I-140?

  15. Hi
    Its gud to read in papers.
    It’s tormenting here ,since the American companies are not encouraging H1visa holders or Ead.
    Adding to the stress,Indian firms are also pulling out their men from the projects,no budget ,running projects on hold, no new projects and many lay offs etc.So then how it will be a boon for foreign immigrants?
    By the time it will be on the table,many will have returned 🏡.
    Anyways let’s keep our fingers crossed.

  16. In the New administration the salary requirement is much different, it requires minimum $130K, so even if we can find a new job, $130k is a bit high.

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