Final H-1B Modernization Rule Slated to Take Effect January 17

USCIS has recently issued two significant final rules that will affect certain Employment Authorization Document (EAD) holders and H-1B “cap-gap” beneficiaries. These changes aim to address processing delays and improve the efficiency of immigration procedures.

Extended EAD Validity Period USCIS has permanently increased the automatic extension period for certain EADs from 180 to 540 days. This extension applies to EADs with specific category codes, provided that the renewal application is filed before the current EAD expires.

Key points:

• The 540-day extension starts from the expiration date on the EAD.
• Applicants must present both the expired EAD and Form I-797C receipt notice for the renewal.
• The extension is valid unless the Form I-765 renewal application is denied.

Changes for TPS Beneficiaries

For Temporary Protected Status (TPS) beneficiaries, there are new restrictions:

• EADs with category codes A12 or C19 can only be extended if the renewal is filed before the re-registration date specified in the Federal Register Notice.
• The extension is limited to the end of the TPS designation period, which may be less than 540 days.

Extended “Cap-Gap” Period for F-1 Students

USCIS has significantly increased the “cap-gap” extension period for F-1 students transitioning to H-1B status:

• The extension now lasts until April 1st of the following calendar year, instead of October 1st of the same year.
• This change addresses the issue of employment authorization gaps due to USCIS processing delays.

Implications for Employers and Employees

These rule changes have important implications for both employers and foreign workers:

1. Longer work authorization: Eligible EAD holders can continue working for a longer period while their renewal is pending.
2. Reduced gaps in employment: The extended cap-gap period helps ensure continuous employment authorization for F-1 students transitioning to H-1B status.
3. Compliance requirements: Employers must familiarize themselves with these new rules to maintain proper I-9 compliance and avoid interruptions in employment.

It’s crucial for affected individuals and their employers to stay informed about these changes and adjust their immigration strategies accordingly. As always, consulting with an experienced immigration attorney is recommended for specific cases and up-to-date guidance.

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Disclaimer: This analysis is based on current information and historical patterns. Immigration policies are subject to change. Please consult with Lawdesks for the most current guidance for your specific situation.

The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.