In this edition, find the latest news on worker options following termination of employment, the H-2B Nonimmigrant Visa availability increase, the 2023 H-2A hourly adverse effect wage rates and more!
USCIS Provides List of Options for Nonimmigrant Workers Following Termination of Employment
On December 19, 2022, U.S. Citizenship and Immigration Services (USCIS) provided a compilation of options that may be available to nonimmigrant workers seeking to remain in the United States in a period of authorized stay following termination of employment.
The compilation includes details on:
- A discretionary 60-day grace period that allows workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications (and their dependents) to be considered as having maintained status following the cessation of employment for up to 60 consecutive calendar days or until the end of the authorized validity period, whichever is shorter.
- Portability to a new employer, allowing workers currently in H-1B status to begin working for a new employer as soon as the employer properly files a new H-1B petition with USCIS, without waiting for the petition to be approved. Also, a worker with an adjustment of status application (Form I-485) that has been pending for at least 180 days with an underlying valid immigrant visa petition (Form I-140) has the ability to transfer the underlying immigrant visa petition to a new offer of employment in the same or similar occupational classification with the same or a new employer (commonly known as “porting”).
Other options include change of status, change of status and employer, adjustment of status, period of authorized stay with a “compelling circumstances” employment authorization document, expedited adjudication criteria, and departure from the United States and seeking readmission in the same or another classification.
Details:
USCIS Increases H-2B Nonimmigrant Visa Availability
In a temporary final rule published on December 15, 2022, the Secretary of Homeland Security, in consultation with the Secretary of Labor, has increased the total number of noncitizens who may receive an H-2B nonimmigrant visa by up to 64,716 for fiscal year (FY) 2023. To “assist U.S. businesses that need workers to begin work on different start dates,” the Departments of Homeland Security (DHS) and Labor (DOL) will distribute the supplemental visas in several allocations, including two separate allocations in the second half of FY 2023.
Of the total 64,716 visas made available, 20,000 visas are reserved for nationals of Guatemala, El Salvador, Honduras, or Haiti. All 64,716 visas are available only to “those businesses that are suffering irreparable harm or will suffer impending irreparable harm, as attested by the employer on a new attestation form.” In addition to making the additional 64,716 visas available under the FY 2023 time-limited authority, DHS is exercising its general H–2B regulatory authority to provide temporary portability flexibility again by allowing H–2B workers who are already in the United States to begin work immediately after an H–2B petition (supported by a valid temporary labor certification) is received by U.S. Citizenship and Immigration Services (USCIS) and before it is approved.
DHS will not accept any H-2B petitions under provisions related to the FY 2023 supplemental numerical allocations after September 15, 2023, and will not approve any such H-2B petitions after September 30, 2023. Provisions related to portability are only available to petitioners and H-2B nonimmigrant workers starting work by January 24, 2024.
USCIS previously announced that petitioners requesting additional H-2B workers under the rule must file their petitions at the California Service Center. This change does not affect the filing locations for petitions filed under the permanent H-2B regulations, whether they are cap-subject or cap-exempt….
Read More: Immigration Update – WR Immigration