- Priority Date Retention: USCIS has codified their long standing practice of honoring priority dates even if the I-140 petition is later revoked or withdrawn, except for material error, fraud or misrepresentation. The only change is instead of "error" they have further narrowed this to "material error".
- Validity of I-140: An approved I-140 can be revoked after 180 days of approval only based on error, fraud, or misrepresentation, or upon revocation or invalidation of the corresponding labor certification. Withdrawal by an employer or termination of business does not revoke an I-140. This provides flexibility for workers for H-1B extensions based on I-140, H-4 EAD, etc. Please note, I-140 will still not be considered valid for purposes of filing adjustment of status through a different employer.
- Grace Periods: Provides certain non-immigrants a 60 day grace period for each period of admission in event of unanticipated cessation of employment. This provides flexibility for employees who are laid off or whose work is unexpectedly terminated before the end of authorized period to make alternate arrangements. USCIS has also codified a 10 day grace period at the beginning and end of authorized period of stay.
- I-140 EAD: USCIS has retained most of the "compelling circumstances" requirements from the proposed rule. This provision is still restrictive and will only benefit a very limited number of applicants.
- Automatic extension of EAD for 180 days: For certain beneficiaries who have an EAD, the validity for EAD will be extended for 180 days on timely filing of an application for renewal. This automatic extension is not applicable for H-4 or L-2 based EAD.
For more detailed review of the provisions in the rule, please visit our discussion of the proposed rule from earlier. We will continue to review the final rule and post updates as necessary.