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.
- December 2nd, 2016