EB Rule Finalized: Grace Periods, Emergency I-140 EAD, 180-Day EAD Extension, and Much More

Hey foreign workers, you want grace periods?  Now you got them!

A final rule touching on many aspects of the U.S. employment-based non-immigrant and immigrant visa programs has been finalized recently.  In addition to grace periods,  the new rule allows emergency employment authorization for individuals with approved I-140 petitions, automatic 180-day EAD extension, job portability, H-1B extensions, and much more.   The main purpose of the new rule is to retain foreign high-skilled workers by creating flexibility for them to work in the U.S.  A draft proposal was published on December 31, 2015, the final rule goes into effect on January 17, 2017.

The following is a summary of the most important aspects of the new rule; 
10-Day and 60-Day Grace Periods
Foreign workers who are in E-1, E-2, E-3, L-1 and TN visa classifications may be granted grace periods of up to 10 days both before and after the visa validity period. Similar grace periods are currently available to nonimmigrants with H-1B, O, and P classifications.

Similarly, DHS may also grant foreign workers who are in E-1, E-2, E-3, H-1B, H-1B1, L-1, and TN classifications a one-time grace period of up to 60 consecutive days, or until the end of the validity period, whichever is shorter, during the validity period of the underlying petition.  The purpose of this grace period is to accord time to foreign workers to seek new employment if their current employment is terminated for whatever reason. However, the foreign worker may not work during this grace period.

I-140 EAD for Compelling Reasons
The new rule allows certain foreign workers to apply for employment authorization for one year if they meet four criteria: "(1) The individual is currently in the United States and maintaining E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status; (2) the individual is the beneficiary of an approved immigrant visa petition under the EB-1, EB-2 or EB-3 classification; (3) the individual does not have an immigrant visa immediately available; and (4) the individual can demonstrate to the satisfaction of DHS compelling circumstances that justify an independent grant of employment authorization."

Compelling circumstances are not clearly defined, but may include the following:
- Serious Illness or Disability
- Employer dispute retaliation
- Substantial harm to the applicant
- Significant disruption to the employer

These EAD applications may be filed during the grace periods of the principal's visa status. Dependent family members are also eligible for th EAD.  Extensions are also allowed one two basis: (1) Compelling circumstances continue to exist and priority date remains not current, or (2) Principal's priority date is one year or less either before or after the Final Action cut-off date in the Department of State Visa Bulletin.

Automatic Extension of EAD
The new rule authorizes automatic extension of a worker's EAD for up to 180 days upon filing of an extension I-765 application prior to the expiration of the current EAD. The extension must be based on the existing authorization category and does not require adjudication of another application.  Some eligible categories include refugees, asylees, individuals granted withholding of removal, TPS recipients, individuals with pending I-485 applications, etc.  Ineligible categories include H-4 and L-2 beneficiaries, and also deferral of removal recipients.

I-140s Approved for 180 Days Remain Valid
Foreign workers' I-140 petitions that have been approved for more than 180 days will remain valid under the new rule.  The validity of I-140 can be used in H-1B extension petitions under AC-21 and also for retention of priority dates in subsequent visa petitions.  An I-140 petition will remain valid even if it is withdrawn or cancelled by the employer unless USCIS revokes the petition based on fraud, misrepresentation or material error.

Job Portability after 180 Days
The new rule codifies the current policy regarding foreign workers' ability to change jobs after their I-485 has been pending for 180 days. Specifically the new I-485 Supplement J was created to capture the information regarding the request for portability including the existence of a bona fide job offer that is in the same or similar job classification as the original one.

Three-Year H-1B Extensions
Section 104(c) of AC21 authorizes approval of H-1B status beyond the general 6-year maximum period if an immigrant visa is unavailable to the beneficiary due to per-country cap limits in the applicable visa category.  The new rule codifies this section and clarifies that extensions can be granted multiple times until an immigrant visa number becomes available to the beneficiary. Further, extensions can be granted regardless of whether the beneficiary is currently in H-1B status or physically present in the U.S. However, dependent beneficiaries are still not covered by the new rule.

One-Year H-1B Extensions
Section 106(b) of AC21 authorizes approval of 1-year extensions of H-1B status beyond the 6-year maximum period if 365 days have passed since the filing of labor application or immigrant visa petition by an employer on behalf of the beneficiary.  This current policy is codified in the new rule.   When an application has been denied but under appeal, it is still considered pending and can be used to support an extension request.  However, extensions would not be granted to expired labor applications.  Further, the applicant must file an I-485 adjustment of status application within one year of visa numbers becoming available. However, the one-year clock is reset if there is visa retrogression.  Failure to timely file the I-485 may be also excused by USCIS based on other valid reasons beyond the control of the beneficiary.

Licensing Requirements Relaxed for H-1B Employees
The new rule allows USCIS to review additional evidence when adjudicating H-1B positions which normally require a license.  For example, some states allow individuals without a full license to practice the occupation under the supervision of licensed professionals.  Sometimes a license is not granted not because of merits but because of a technical requirement such as lack of a social security number.  In short, USCIS will focus more on the substantive requirements of the license rather than the technical deficiencies.

Organizations that are Fee and/or Cap-Exempt
Certain organizations are exempt from the H-1B cap and/or filing fees.  The new rule provides more guidance in the qualifications of such organizations.  For example, an entity may claim exemption if it is "related or affiliated" with an institution of higher education.  Under the new rule, such an entity may claim exemption based on a formal written affiliation agreement with an institution of higher education, as long as "a fundamental activity" of the nonprofit entity is to directly benefit the mission of the institution of higher education.  Further, the new rule clarifies that shared ownership would not be a basis for denying exempt status.


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