ead i140 rule summary

EAD for I140 Rule – Summary – Effective Jan 17, 2017

Raghu Green Card 286 Comments

If EAD for I140 Rule gets implemented, it will be one of the biggest and welcome change in several years for Employment Based Legal Immigration system here in the U.S.A.

Here’s a list of stages and steps EAD for I140 rule have to go through before being implemented and effective from Jan 17, 2017.

EAD for I140 Rule Making Timeline

  1. DHS/USCIS drafts the Rule
  2. DHS/USCIS publishes the Rule to OMB for Approval  (Completed on Nov 20, 2015)
  3. OMB Reviews and Approves the Rule (Completed on Dec 22, 2015)
  4. Text of Proposed Rule is Available (Dec 30, 2015)
  5. DHS/USCIS publishes the Rule for Public Commenting (From Dec 31, 2015)
  6. Public Comment Period is Complete (Completed on Feb 29, 2016)
  7. DHS/UCIS Review the Public Comment and Prepared Final Rule (Feb to Oct 23, 2016)
  8. DHS/USCIS Submits the Final Rule to OMB for Approval (Oct 24, 2016)
  9. OMB Approves the Rule (Nov 18, 2016)
  10. DHS/USCIS published the Rule in Federal Register (Nov 18, 2016)
  11. The rule goes into Effect (Jan 17, 2017)

Summary of EAD for I-140 Rule

Here’s a quick summary of important provisions of this rule.

  1. 60-Day Grace Periods
    1. Gives Option to transfer and maintain status with New Employer, Post Employment Termination.
    2. Available Once Per Authorized Employment Period
  2. 10-Day Grace Period
    1. Employment Not Allowed
    2. Pre Validity  – Enter USA to Settle Down
    3. Post Validity – Prepare to Depart
  3. H-1B Extensions (Beyond 6 Years)
    1. Clarifies Existing Practice.
    2. Extend H-1B Status beyond 6 Years with:
    3. Approved I-140 (OR) PERM Labor Filed at least 1 year before the end of 6th year.
  4. H-1B Time Recapture
    1. H-1B Recapture of Time Outside the USA
    2. Time spent more than 24 hours outside can be recaptured
  5. H-1B Start Date (Transfer)
    1. Clarifies Existing Practice
    2. H1B Worker may begin employment at the new employer as soon as the new H-1B transfer petition is filed
  6. I-140 Priority Date Retention
    1. Retain PD even if Employer Withdraws I-140 at least 180 days after approval
    2. If I-140 is Not Approved due to Fraud or other conditions.
  7. New Job Without New PERM or I-140
    1. Clarifies AC21 Law.
    2. If I-485 is Pending for more than 180 days, applicants can use old approved I-140 and new job is the same or similar occupational classification.
  8. EAD with Approved I-140
    1. EAD with approved I-140 + Compelling Circumstances
  9. Automatic EAD Extensions
    1. Eliminates requirements for DHS to process EAD by 90 Days.
    2. Automatic EAD extension upto 180 days.
    3. Applies to Only certain EAD Types.
  10. Cap Exempt H-1B Employers
    1. Nonprofit entities that are “related to or affiliated with” institutions of higher education and/or governmental research organizations
      H1B worker with a cap-exempt employer can work at another H1B role at a cap-subject employer.

Criteria to apply for EAD for I-140

If you read the proposed rule details in the descriptions, only certain applicants with approved I-140 qualify to apply for an EAD. Here’s what you need to apply for EAD for I140:

  • Prove that you are in valid immigration status
  • Approved I-140 Petition
  • Should have a “compelling reason” to apply for an EAD

Update: Nov 17, 2016: Compelling Reasons Not Removed (and Summary)

Of all the 366 pages, one biggest changes that EB community was expecting is removal of Compelling Reasons, so folks can get Portable EAD. But, that’s not the case in the Final Rule. but, there are good provisions that should help the Immigrant Community

  • Pros:
    • Grace Period for H1B Workers when Laid Off (60 days)
    • Two 10 Days Grace Period for H1B (Entry and Exit)
    • I-140 can’t be revoked after its been approved for 6 months unless 3 conditions
    • PD can be retained (Page 67)
    • EAD with Compelling Reasons
  • Cons:
    • No Blanket EAD
    • No EAD with AP
    • EAD – 1  Year Validity
    • Lose Non-Immigrant Status upon EAD (requires Consular Processing for Status Adjustment)
  • Stay tunes for Updates

Following is the Screenshot from Page 109 of the final rule. EAD Final Rule Text – 366 Pages.

Update Oct 2016:

  • DHS submitted the Final rule to OMB for Approval. What does this mean?
  • They reviewed all the submitted comments. They responded to the comments. They could have updated the rule with major changes or minor changes.

Update June 2016:

As per USCIS Director, there’s no ETA for DHS to publish the rule. #Bummer.

Update – May 2016:

USCIS’s Rule-Making Agenda shows that Final Rule could be published by the end of May 2016 to OMB for review and approval.

We all want to know, what’s in the Final rule. What’s the likely hood of DHS making EAD application without “compelling reasons”. Let’s wait and watch.  The Rule is set to Economically Significant. So, OMB could approve the rule within 30 days of receiving the rule.

Update – Jan 12, 2015

  • Interview with Attorney Murali Bashyam on provision included in the Proposed rule

 

Update – Dec 30, 2015:

  • Actual Text of the Proposed Rule is now available ( 181 Pages, included below)
  • Provisions includes
    • Retention of employment-based immigrant visa petitions
    • Retention of priority dates.
    • Nonimmigrant grace periods
    • Eligibility for employment authorization in compelling circumstances
    • H-1B licensing
    • Non-Immigrant Workers to Change jobs
    • Changes to how H1B Cap is counted against numerical cap
    • Many more..
  • Wait for analysis as I read through the text and get clarity from Attorney’s

Updated Dec 22, 2015:

  • OMB Approved EAD for I-140 Rule.
  • DHS/USCIS would next publish the Rule for Public Commenting
  • We don’t have the text of the Proposed Rule Yet

Update Nov-20-3015:

  • EAD for I140 rule is now SUBMITTED for OMB approval in Nov-19-2015.
  • This is a Breaking News Update.
  • Here’s the screenshots from the Federal Register about the DHS submitting the rule for Review and Approval

ead for i140 proposed rule

Summary of the Proposed Rule:

ead for i140 proposed rule

EAD for I140 rule should be published shortly as per DHS Ombudsman. EAD for I140 was part of Visa Modernization Executive Action from President Obama.

Nationals from India and China have long-wait times for Green Card in EB2 and EB3 Employment based category.

Typical Green Card Process for Employment category based goes through 3 Majors Stages.

  1. PERM Labor certification
  2. I-140 (Immigration Petition) is the second stage of employment-based green cards process.
  3. I-485 is the third stage for filing adjustment of status.

With current regulations, EAD (Employment Authorization Document) can be applied while applying for I-485.

But, I-485 can be applied only when Priority Date is Current.

Priority Date (PD) is the date when the Labor Certification application (or I-140 with NIW) was filed.

As of November 2015 visa Bulletin, PD for EB3 India is April 1, 2004.

That means, someone who applied for Green Card back in April 2004 are eligible to file for I-485 in November 2015. That’s 11 years wait.

Which means?

EB3 Indian national have to wait 11 years to apply for EAD. EAD can be applied concurrently with I-485 application.

What’s is expected from this Proposed – EAD for I140 Rule?

Employment based green card applicants should be able to apply for EAD after Stage 2 of Green Card Process (or that’s the expectation).

Current Green Card Processing Timeline for EAD

  1. PERM Labor Certification – About 1 year ( 12 months)
  2. I-140 via Premium Processing – About 30 Days (Total – 13 months)
  3. Wait for 11 years to file I-485 and EAD ( Total – 12 years)

Expected Timeline to file EAD for I140 rule

  1. PERM Labor Certification – About 1 year ( 12 months)
  2. I-140 via Premium Processing – About 30 Days (Total – 13 months)
  3. Apply for EAD. Takes 3 months. (Total – 16 months)
  4. Wait for several years to file I-485

DHS hosted their Annual Ombudsman conference on Nov 5, 2015.

Here’s the actual conversation between Aman from Immigration Voice and USCIS during the Annual Ombudsman conference and let’s hope that qualification and criteria to qualify to get EAD for I140 is broad enough.

 

Here’s the Rule from Federal Register as per Spring 2015 agenda.

ead for i140 rule making

 

Leaked EAD for I140 Memo from USCIS

Following leaked memo provides insights into various options USCIS is looking at providing EAD.

Frequently Asked Questions

  1.  When will this EAD for I140 proposed rule come into effect?

Here’s the timeline I’m expecting for this rule based on my past rulemaking observations (H4 EAD and now STEM OPT Extension)

  • Proposed rule – Nov 2015
  • OMB Approval – Dec 2015
  • Publish for Public Comment – Jan 2016
  • Public comment ends – Feb 2016
  • Complete Review of comments – Mar 2016
  • Submit rule for OMB approval – Mar 2016
  • OMB approval – April 2016
  • Rule become effective – July 2016

2. Who will be qualified to apply for EAD with I-140

Rumor is that only certain individuals will qualify. Not everyone with approved I140 will qualify for EAD. This will be a big bummer. Let’s hope, everyone with approved I-140 can qualify to apply for EAD.

Certain Individuals = Someone with skills equivalent to National Interest waiver category in EB2.

But, you can see the reply from DHS (in the video) that we have to wait for proposed rule to see who will qualify.

I don’t have any other information at this point. Subscribe to this page for additional updates.

3. How is this different from Visa Bulletin changes?

Visa bulletin changes in October 2015 introduced Acceptance Cut Off dates that would allow applicants waiting for green card to file I-485 earlier than actual Priority Date. But,  USCIS retracted on the dates. Read more on getting EAD via I-485 with approved I-140.

4. Is this different from H4 EAD?

Yes, it is. This proposal is supposed to give EAD for applicants with pending green card.

Related Post

Comments

  1. I have been followed your video during president trump issues for H1b visa .
    My husband is H1b visa holder , he is here in Usa from last 4 year ,I m H4 visa holder , our visa will get expired on 17 th may 2017 , we put for extension and we filled for green card, we have crossed 1st stage now we are in 2 nd stage I-140 .
    My problem is today my husband got call from us department of state, they want to meet my husband on 3/22/2017 to discuss about H1b employers.
    So here we both are little worried about for what they want to meet, can you please clear my problem any your good opinion or suggestions.

  2. Hi Raghu,

    My wife applied under EB3 with PD Dec 2016 and has approved I-140.
    I am on L1A till Nov 2017 and completing my 7 years.

    Will I be able to switch to H4 after Nov and apply for EAD with her approved I-140?

  3. Raghu,

    Could you explain below point.

    “If I-485 is Pending for more than 180 days, applicants can use old approved I-140 and new job is the same or similar occupational classification.”

    Trying to understand I have I-140 approved and it’s more than 180 days means I can transfer h1b to new employer in same occupational classification and no need to file for labor and I-140 with new employer as old employer’s I-140 is valid.

    Please confirm.

    Thanks,
    Vinod

  4. What if employer applies I-140 not via Premium Processing , how long does it take to get it approved and what are the next steps for getting H4 EAD?

  5. In PD porting for job change scenarios with I-140 approved, say in the time it takes for company 2 to file perm, get perm approval, file I-140 and get I-140 approval the PD becomes current. What are the options available in that case?

    Company 1 [employee has quit] – with whom I-140 was initially approved and it wasn’t revoked
    Company 2 [Employee is working here] – with whom I-140 is still pending meaning – PD porting is still not complete.

    Can the beneficiary file for I-485 based on the fact that PD has become current although not working at the time for Company A?
    If yes, is this something he needs to do on his own or through Company B where he currently works?

    If no, then does he have the option to go back and join Company A and then file for I-1485 for EAD while the PD is still current for him? Any idea how much time PD typically remains current?

    I know some time back dates progressed to 2009 for a while and then retrogressed back to 2006 which means the individual has to join Company 1 in that small time window- right?

    1. Author

      If PD is current and new employer’s I-140 is not yet approved, then you would have missed the chance. I don’t think there are any options.

  6. Hi Raghu,

    I have an I-140 approved from 2012 as well as I-1485 pending from 2012, If I change job on Jan 17th 2017 or latter, does Supplement J for I-1485 applies to me? If it does apply to me do I need to proactively submit supplement J to USCIS to let them know that I have changed job in “same or similar” job classification using I-140 portability or I can wait to file supplement J once USCIS issue RFE?

    Also my perm was filed as a Computer Programmer/Software Engineer, if I take a job of Scrum Master (which is similar to a Software Project Manager) can this be considered “same or similar” in general?

  7. I just changed my employer. If they will revoke my I-140 before rule come into effect, will I get H1B extension on same I-140 without porting it with new employer?

  8. Hi Raghu,

    If a person has his I140 approved since Jan 2016, as of rule effective date it, it is approved for more than 12 months. Does he can attain the benefit of this rule immediately? or should he once again wait for another 180 days (from Jan 2017 to June 2017?

    Thanks,
    Magesh Ramadoss.

    1. Hi Raghu,

      With this new i140-EAD rule, If i change job can my employer withdraw i140 when i quit ?
      Assuming if i140 is withdrawn, can i apply for h4-EAD ?

  9. Hi Raghu,

    After the new rule come in effect on 01/17/2017, Using an existing approved I-140 for more than 180 days, can a H-1B be renewed any number of times, with new/multiple different employers, even without restarting any paperwork for GC with the new employer?

    1. Author

      I guess so. With valid I-140 you can get an H1B extension for 3 years. That applies even when you are transferring to the new employer right?

  10. Now that they have finalized 140 based EAD, it looks like it does more harm than good !! if you get EAD through 140 based one, you can’t do 485-need to do consular processing of GC, your eligibility for further EAD renewal may be gone if our EB2 priority date retrogresses more than a year as per final action date, plus spouse don’t automatic renewal. The “Compelling circumstances” claw makes it real deal breaker.

    My EAD/AP/485 has been filed based on “ACCEPTANCE CUTOFF-Dates for filing” . I am not sure if this is to worry or this EAD is like the actual green card EAD or…if this is the same horrible EAD like the 140 based EAD.

    H4 EAD, 140 based EAD, actual GC based EAD…wow !!
    Please share your opinion.Thanks.

  11. I think people should start looking for plan B.
    Its not getting any easier for anyone.
    There are some ROW people here too and for them its not easy as well.
    Jumping on the other side is not easy as well, but people have to
    make that decision, as to whats the best option.
    I think the people who have PD 2012 and up, should start looking for
    other options.
    Its a wait and watch game with Trump admin.

    1. The wait and watch is not a solution anymore. People have been waiting since Bush administration. The U.S. wants to keep educated and slave population using biased H-1B laws. It is time for an action. People with H-1B should start moving out or see other options. I would suggest demand significantly highly amount of salary with options before you join a private company. Americans are lazy and do not want to work for low salaries. They also leave without hesitation. It is not the case with H-1B and that is why Employer take full advantage of the system. Only we can slap their faces back by taking an action.

    2. The U.S. continues to create/amend laws that keep highly skilled workers as slaves by their employer. Why they can’t simply give EAD to every H-1B candidate? People who are on H-1B should consider moving out from this stupid and racist country. Actually, they don’t deserve the highly skilled people. If you have been here for a while, consider the cost of living away from family and friends? It is not worth staying for simply the right to work without restrictions. I don’t blame people who hate America.

  12. So much frustrations and disappointments after all these wait.

    tax payer since 2008 and before that paid fees to university. Wish i had invested these much energy & money somewhere in our own country, bad luck….

  13. Hi Raghu, I have been following you posts from a long time. Thank you very much for sharing all the useful information.

    My husband has his i-140 approved with Company A and his PD is July 2012. He is in 5th year of H1B. And he has a job offer with Company B which probably if he accepts his joining date will be sometime in end of January 2017.But the company B might start his GC process may be a year later. What are the chances that the dates will be current? Do you think it is a risky thing to not have GC started immediately. If I assume with this new rule if the Company A doesn’t revoke his i-140 and if the Company B doesn’t file his Labor what will be his situation if the dates get current? Please help me with this situation. Thank you very much.

    1. Author

      Chances of PD to become current for July 2012 is pretty slim based on recent movements of VB. But, there’s always that risk when it comes to PERM. I would move if they are starting GC within 3 months and EB2.

  14. Hi Raghu,

    How long do you think it would to get EAD after applying on after Jan 17th, 2017. Once i have the EAD, I am not required to apply for H1b cap-sub on April 1st. correct ?

    Thank you

  15. Hi,
    May I eligible for EAD?
    EB-3 approved I-140 in March 2013.
    Current H1B is 10 years+ (done 3+3+3+3 now ongoing).

  16. Raghu,

    If I switch the job after Jan 17th, Do I need to start the Green card process from the scratch or can we continue from the remaining stages?. I have approved I140 with PD Nov 2012.

  17. Hi Raghu,

    Thanks for the great service to this community. Its been very helpful through these years by keeping us updated and also answering so many individual cases here.

    Appreciate if you could clarify.

    I have an approved I140 for the last 4 years from the current employer. Now, I have an offer from a new employer, I was planning to quit my current employer and join new employer in Jan first week.

    Now that new rule is coming, I am in dilemma situation as when to quit my current employer.

    As I first understood that if one has an approved 140 ( more than 180 days) as of Jan 18, 2017 – then he/she can benefit this rule.

    But when i was going through many sites, it is getting confused whether it is 180 days from the rule taking Jan 18, 2017 – that is somewhere in July 2017

    So question here is – If my current employer withdrawn my 140 on or after 18th Jan 2017 and before 30th Jan 2017 – am I going to benefit the new 140 rule where I can get unlimited extension till priority date becomes current?

    1. Author

      Rule comes into effect from Jan 17, 2017. If you have I1-40 approved for 6+ months, then unless there’s error and other conditions employer can’t revoke it. But, there is also provision to retain PD. I think you should talk to an attorney to sort out your situation and how thos rule impacts you.

      #again – Don’t make life changign decision based on what you read in the blog or forums. Pay the fees and consult an attorney. 366 page rule and we are not pros to decide that 🙂

  18. Can you answer one simple question?

    Who is eligible for EAD under this rule?

  19. Looks like you can apply. But, new employer should sponsor your GC in NIW for you to be able to extend EAD after 1 year. Plus, you will lose your H1B status.

    Hi Raghu,
    Thanks for your comments.
    My NIW petition was a self petition that didn’t require LCA. Why do I need the GC sponsorship as I already have an approved NIW I-140 when I extend EAD after 1 year. What would be the possible impact of loosing H1B status? I am trying to move from cap-exempt h-1b to cab-subject h-1B, am I eligible to apply for EAD?

    1. Author

      I think you have interesting, favorable scenario. After you get EAD with NIW, you have 1 year of EAD. What would you do after 1 year to extend EAD? Since you have self-petition, you would be fine (i guess) to continue to extend EAD. But, I know few who have I-140 NIW with Employer as sponsor. They would be stuck, because underlying I-140 would be gone wioth the employer. Or they could do a Seld-Sponsores NIW. You may have to consult an attorney to understand the intricaies of rules. I can ask Murali when I interview hime.

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