Immigration Policy Changes: H-1B and Unlawful Presence Waivers

 

H-1B employers must keep in mind the recent change in filing address for certain H-1B and H-1B1 petitions, specifically when filing in Nebraska.

Starting July 1, 2016, the Nebraska Service Center (NSC) began accepting Form I-129 H-1B and H-1B1 (Chile/Singapore Free Trade) petitions that requested:

  • continuation of previously approved employment, without change, and with the same employer; and
  • any of the following actions:
    • notifying a U.S. Consulate, Port-of-Entry, or Pre-flight Inspection facility so that the beneficiary can obtain a visa or be admitted; or
    • extending the stay of the beneficiary.

The NSC also began accepting Form I-539 (Application to Extend/Change Nonimmigrant Status) and Form I-765 (Application for Employment Authorization) applications from qualifying H-4 nonimmigrants that are concurrently filed with any Form I-129 petition as above.

H-1B employers must take note that while California and Vermont Service Centers currently continue to accept the above Form I-129 petitions, and any concurrently filed Forms I-539 and I-765 applications, starting September 1, 2016, only the NSC will accept them.

Provisional Presence Waiver

In other news, USCIS has announced a final rule expanding the eligibility for the Provisional Unlawful Presence Waiver Process to all individuals who are statutorily eligible for the waiver of the unlawful presence ground of inadmissibility.

Under the existing provisional waiver process, only certain immediate relatives of U.S. Citizens could apply for provisional waivers of the unlawful presence ground of inadmissibility, based on the extreme hardship their U.S. Citizen spouses or parents would suffer if the waiver was not granted. The new regulation expands eligibility for the process to all individuals who are statutorily eligible for the waiver.

To qualify for a provisional waiver, the applicant must establish that his or her U.S. Citizen or lawful permanent resident (LPR) spouse or parents would experience extreme hardship if the applicant is not allowed to return to the United States.

The new rule goes into effect today, August 29, 2016. Applicants who qualify under the new rule must note that they should not submit a request for a provisional waiver under the expanded guidelines until the final rule takes effect on August 29, 2016.