The Department of Homeland Security and USCIS have announced the beginning of the rulemaking process on the proposal I blogged about last week to allow those with approved I-140s to get an interim employment authorization document while waiting on a priority date to become current. The proposed rule will be hugely important to hundreds of thousands of individuals stuck in long EB-2 and EB-3 queues.

The announcement can be found here. It states the following:

The Department of Homeland Security (DHS) is proposing to modernize the immigrant visa system by amending its regulations governing the adjustment of status process and employment-based immigration. Through this rule, DHS proposes to allow certain approved Immigrant Petition for Alien Worker (Form I-140) beneficiaries to obtain work authorization, clarify the meaning of portable work authorization, and remove unnecessary restrictions on the ability to change jobs or progress in careers, as well as provide relief to workers facing lengthy adjustment delays.

The posting is on USCIS’ agenda for areas of rule making over the next new months. This doesn’t tell us how long USCIS intends to take before releasing a proposed rule, much less a final rule, but it does verify that the memo I wrote about was, in fact, the real deal.

Greg Siskind

Greg Siskind

Greg Siskind is a partner with Siskind Susser, PC - Immigration Lawyers. After graduating from Vanderbilt University, he received his law degree at the University of Chicago. He created the first immigration law web site in 1994 and the first law blog in 1997. He's written four books and currently serves on the board of governors of the American Immigration Lawyers Association. He can be reached by email at gsiskind@visalaw.com.
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189 Responses to It’s Official – USCIS Begins Rulemaking Process on I-140 EADs

  1. Madmax says:

    Greg,

    Based on your experience and past rulemaking processes, are you able to make an educated guess on when this will become effective?

    Thanks.

  2. Satish says:

    Greg,

    “certain approved Immigrant Petition for Alien Worker (Form I-140) beneficiaries”……It clearly says not all approved I-140 beneficiaries. Any idea who will be eligible?

    • Greg Siskind says:

      The legal memo I blogged about referred to I-140s approved for a year or more so I’m guessing that’s the restriction referred to.

      • SK says:

        A note from Immigration Voice indicated that they are probably referring to I-140 approved beneficiaries that have completed 6 years of stay or under AC21 extension. Do you think this may be the “CERTAIN” category they are referring to?

        • Greg Siskind says:

          I’m not sure on that. I think the goal is to mirror AC21 as much as possible and that would be consistent. But I haven’t heard anything specific.

          • TW says:

            Although it is far from clear, I am wondering if this means that the I-140 EAD rule would only apply to H-1B visa holders who have an approved I-140. The reason for asking this is because I am on an O-1A visa with an approved I-140 from my NIW petition. I am afraid I don’t belong to the corhort of “certain approved Immigrant Petition for Alien Worker (Form I-140) beneficiaries”. 🙁

      • Anjan says:

        Will children of approved i140 h1b visa holder will also get ead ?

  3. Mohan says:

    May be some what related to this. The lawsuit on H4-EAD rule is still pending in the court. If court decision is in favor of plaintiff, do you think I-140 EAD falls under same category?

    • Greg Siskind says:

      The authority of the Administration to create new EAD categories is common to both the H-4 EAD and this proposal so that other case is relevant.

  4. Raj says:

    Thanks for the information Greg 🙂 if the rule placed effective is Advance Parole also included? Please help .

    • Greg Siskind says:

      Good question. The legal memo didn’t mention it and neither did the USCIS announcement. But I think it would almost certainly need to be in order for the policy to work as intended.

  5. tiredoftools says:

    Thanks Greg! I am confused from the definition of the announcement. Its not clear if only EAD for approved I-140 will be handled through this or additional fixes as mentioned below are also part of this like :
    “clarify the meaning of portable work authorization, and remove unnecessary restrictions on the ability to change jobs or progress in careers, as well as provide relief to workers facing lengthy adjustment delays.”
    Are above in addition to I-140 EAD or do they mean giving I140 EAD will simplify the things mentioned above.
    Thanks!

  6. sunny says:

    Greg, you meant end of first quarter of FY2016 (i.e. Dec 31st 2015) or Calendar year 2016 (March31st 2016)? you can understand the frustration among EB applicants waiting for 10+ years for some relief.

  7. sunny says:

    also is there any chance of passing it as an interim rule on urgent basis as they have already commented lots of input in last few months (they had a formal comment period from end of Dec 2014 to Jan 2015 on all of the EB related Obama EA)? they already mention its priority as other significant.

    • Greg Siskind says:

      I doubt USCIS will move more quickly. Also, given the H-4 and DAPA lawsuits, the wise move would be to make sure all of the i’s are dotted and t’s are crossed. In short, going through the full rule making process will make it more likely litigation will not threaten the policy change.

  8. Keyur Patel says:

    Hi Greg,

    I have “approved I-140” from my previous employer back in 2012, I changed my employer and now I am with new employer since 2015. They have not started the GC process yet.

    Old I-140 is still valid as per USCIS records online. Do you think I can take advantage of previous employer’s approved I-140 ?

    Appreciate your response.

    • Greg Siskind says:

      Possibly. I would suspect that if a prior I-140 approval is still pending, that will serve as the basis for an EAD under the rule. As I have said to others, we’ll need to wait and see what the final language says.

  9. Naveen says:

    I-140-EAD NPRM (Notice of proposed rule making) date is 10/00/2015, Will it be effective OCT-2015 ?
    http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201504&RIN=1615-AC05

  10. Kumar says:

    Hi Greg,

    I understand there is not enough clarity yet, but do you think this rule would apply to those of us who have an approved I140 from previous employer and currently in the process of PERM from new employer?

    Your feedback is really appreciated!

    • Greg Siskind says:

      The key is probably whether the first I-140 is still valid and whether USCIS applies the policy retroactively or going forward only. We won’t know that until we see rule language.

  11. Madhav Ram says:

    Hi Greg,

    I have I-140 approved ( 4 yrs back) from company A, one year back changed Job to employer B. Do you think I can get EAD? I portable i-140 is one of the new rule, I hope my employer B need not file Labor and I-140. Your response is highly appreciable.

    • Greg Siskind says:

      If your first I-140 was never revoked, you might be able to use it under the new rule. But we won’t know for sure until we see a final version of that rule.

      • Ganesh says:

        Hi Greg, does an approved I140 from a previous employer make an H4 spouse eligible for H4 EAD?

        Thanks much for spending your time answering all these questions.

      • Anonymous says:

        Hi Grey,

        There is saying the new rule will not eligible for I140 approval from previous employer even it is not revoked/withdrawn, because I140 EAD needs approval employer letter, is it correct?

        Thanks,

      • Iris says:

        There is a saying, 140EAD won’t be eligible for approval by previous employer because 140EAD needs approved employer letter. is it correct?

        Thanks,

  12. Immigrant says:

    What are your thoughts on PD not being portable when employer revokes it? I was under the impression that this was possible as long as USCIS did not revoke based on mis-representation on fraud. However, today there is news that there is a precedent which prohibits the retention of PD. This if true is a very serious issue.

  13. Anonymous says:

    hi greg,
    I’m one of the i140 approved for more than 4 years …
    what is your opinion on employers revoking approved i140 since the employee left because of good opportunity why should employers be given the hold on employee …
    in my view even the revoked i140 people should be allowed to apply for EAD once the rule comes …

  14. Sam says:

    Hi Greg,

    Any updates on this? Have you heard any movement on this law?

    Thanks!!!

  15. rohit says:

    Hi Greg,
    ,
    does it mean I 140 guys will be able to file I 485 before PD is current, or it will just mean a different type of EAD will be given, similar to H4 EAD?

    • Greg Siskind says:

      Similar to the H-4 EAD. There’s also talk about another additional approach that would allow an early adjustment application.

      • RD says:

        Hi Greg – I know that there is no time frame as yet, but any tentative ballpark time that people can look forward to?
        Thanks!

  16. Amandeep Singh says:

    How can I check if my previous employer hasn’t withdrawn my approved I-140 petition?

  17. RD says:

    Hi Greg – Could you please provide your inputs on the time line floating around for early adjustment of status that people can look forward to?

    Thanks!

    • Greg Siskind says:

      Hi RD – I know lots of folks are hoping for early news on the various plans to provide relief to backlogged skilled worker visa applicants. Unfortunately, there’s not much to report at this point. It’s in the regulatory agenda for the agency which means they’re working on a rule. But I would guess it will be several months before we see a proposed rule followed by several more months of waiting. 2016 – probably mid to late year – would be a middle of the road guess. Greg

  18. PK says:

    Hi Greg,

    With this do we get travel documents along with work authorization? Like AP – multiple entry?

    Thanks!

  19. Vasu says:

    I-140-EAD NPRM (Notice of proposed rule making) date is 10/00/2015, Will it be effective OCT-2015.
    What can we expect by Oct 2015?

  20. vinod says:

    thank you Greg for all you post..it is really helpful

  21. SR says:

    Great Post Greg!! I had similar questions but all my answers are here.. I hope all of us get some good news soon

    • SS says:

      Thanks a lot for such a great post. That was greately helpful. Let’s say if new rule happens to be once I140 is approved can apply EAD and AP. If so, an employer has apply EAD & AP or individual can apply? Because, if employer has to apply/sponsor, I dont think employer would be willing to sponsor EAD & AP and let the employee go to a different organization. I know this is too early to ask this question when the rule is not even finalized. I am so deperate to find out what would be the fate of an employee because I am one of the long waiting guy to get some relief.

  22. GM says:

    Greg,

    We all appreciate you for your efforts in providing updates in your blog, and also for taking time in answering each one of us patiently. Thank you so much, this blog had cleared most of my questions, didn’t had any questions to ask, and I will keep watching this blog for more updates from you.

    Thanks !
    -Madhu G

  23. Iris says:

    There is a saying, 140EAD won’t be eligible for approval by previous employer because 140EAD needs approved employer letter. is it correct?

    Thanks,

  24. TW says:

    The White House released this Legal Immigration Modernization Report yesterday:

    https://www.whitehouse.gov/sites/default/files/docs/final_visa_modernization
    _report1.pdf

    I don’t see I-140 EAD ever mentioned in the report, so I was wondering if this means that I-140 EAD will **NOT** be part of the immigration modernization process.

    • RP says:

      I see some text around job flexibility on page 30.

      Recommendation 4: Clarify and expand protections for employment-based immigrants and
      nonimmigrants. DHS intends to publish a regulation clarifying and expanding on the protections
      afforded employment-based immigrants and nonimmigrants under the American
      Competitiveness in the Twenty-First Century Act of 2000 (“AC-21”), which was meant to increase
      job flexibility for individuals who were coming to the United States to perform specialty
      occupation services (H-1B) and those on the pathway to permanent residency. This regulation
      will:
      • Increase the ability of workers waiting for a green card to change jobs or receive
      promotions by clarifying when individuals may change jobs or employers because such
      employment is “same or similar” to the job that was the original basis for permanent
      residency;
      • Further increase job flexibility by enabling individuals whose employment-sponsored
      immigrant visa petitions have been approved for more than one year to retain eligibility
      for LPR status despite the petitioning employer closing its business or seeking to withdraw
      the approved petition;

  25. Kushal says:

    See Page 30 of this doc:

    Recommendation 4: Clarify and expand protections for employment-based immigrants and
    nonimmigrants. DHS intends to publish a regulation clarifying and expanding on the protections
    afforded employment-based immigrants and nonimmigrants under the American
    Competitiveness in the Twenty-First Century Act of 2000 (“AC-21”), which was meant to increase
    job flexibility for individuals who were coming to the United States to perform specialty
    occupation services (H-1B) and those on the pathway to permanent residency. This regulation
    will:
    • Increase the ability of workers waiting for a green card to change jobs or receive
    promotions by clarifying when individuals may change jobs or employers because such
    employment is “same or similar” to the job that was the original basis for permanent
    residency;
    • Further increase job flexibility by enabling individuals whose employment-sponsored
    immigrant visa petitions have been approved for more than one year to retain eligibility
    for LPR status despite the petitioning employer closing its business or seeking to withdraw
    the approved petition;
    • Provide increased guidance on job flexibility provisions for H-1B workers seeking other H-
    1B employment, including changing jobs or employers;
    • Extend grace periods for certain nonimmigrant workers whose period of authorized stay
    has expired, including because their jobs have been terminated, to better allow them to
    obtain other employment without losing their nonimmigrant status;
    • Clarify when H-1B nonimmigrants may begin working without required licensure;
    • Provide increased guidance on the maximum period of admission for H-1B
    nonimmigrants, including for those who are on the path to LPR status, and enable H-1B
    nonimmigrants to recapture time spent outside of the United States;
    • Clarify which H-1B nonimmigrants are exempt from the statutory cap to ensure that those
    nonimmigrants who are contributing to U.S. research and the education of Americans
    may remain in the United States; and
    • Protect H-1B nonimmigrants who suffered retaliatory actions because they reported
    labor violations committed by their employer.

  26. Thomas says:

    each country is allocated 2802 visa’s every year for each quota.

    so EB1 for 2015- 40k
    according to data demand for this number is 5k. lets assume it becomes 20 k.which is 3k more than last year.
    the spill over for that is 20 k

    So EB2 for 2015- is 40k +20 K
    EB2 for all countries
    1997-2006 =1652
    2007=1392
    2008=4012
    2009=10629
    2010=6397

    from all other countries except India and china in 2015= 1096(we only need to look at this as they all are current)
    so the numbers add up to
    All countries EB2 inventory upto 2010= 24122
    taking out 1096 from rest(as they are current , i assume there wont be any spill over from that category) =23026
    so the demand is 23026 for Total EB2. the visa’s available is 60k.
    So according to this we already have enough visa’s .. so this could be current today?

  27. Iris says:

    as long as no need to redo PERM, that is much better.

  28. Anonymous says:

    Any update on petition for approved I140 during october?

  29. HD says:

    Hi Greg,

    If EAD for I-140 approved rule pass..do you think they will also include advance parole (AP)?
    IF they issue AP..can we use that for international travel without visa stamping till we get actual GC (may be 4-5 years down the road).

    Thanks,

  30. I140EAD says:

    I-140-EAD NPRM (Notice of proposed rule making) date is 10/00/2015, Will it be effective OCT-2015.
    What can we expect by Oct 2015. Greg lots of discussion but not getting correct answers.

    • Greg Siskind says:

      You’re not getting answers because there are not answers to be had. The Administration is not locked in to a timeframe as much as people desire that to be the case.

  31. ssk says:

    Greg,

    What will happened to spouse after principal applicant gets EAD – will she also have EAD?

    And what about L category visas?

  32. CANADIANPR says:

    NRMP says 10/00/2015 as proposed timeline. +NRMP usually gets published about 180 days prior to actual rule right?

  33. ashwin says:

    Thanks a lot Greg for your blog and patiently answering all the follow up questions. You rock!! thanks once again

  34. Anonymous says:

    Please Provide EAD for Master’s Student with i-140 approved and who are working in USA more then 5-7 Years. Not to all of them who just recently came to USA. And off course not to an Asian Private Firm as well.

    • tony says:

      I doubt such specific law targeting a particular population or race will ever be made in the U.S.

    • Anonymous says:

      It is against US laws to target race, it is called discrimination and ppl asking for such laws should be thrown out of country without giving second thought as they will destroy the harmony of country.

  35. Anonymous says:

    Thanks Greg for the info and patiently listening and answering . hope this gets implemented sooner

  36. Anonymous says:

    Hello Greg! First, thanks for the blog which answers many of our questions in regards to I-140 EAD. I have one question. So, for one to be eligible for EAD, should the I-140 be approved by the current employer or will an I-140 from previous employer suffice? Thanks for your time and appreciate your work here!

    • Greg Siskind says:

      Under the plan I believe USCIS is considering, if you have an I-140 approved for a year from either a current or past employer you could benefit and the prior employer would not be able to revoke the I-140 as is currently the case. But we’ll have to wait on the proposed rule.

      • Ganesh says:

        Hello Greg, My priority date is May 2010 (EB2 India). I just accepted an offer from another employer. Is this a bad/risky decision with regards to missing the immigration bus?

  37. Anonymous says:

    Hi Greg,

    I have started the GC application and will get my i140 01/2016. Unfortunately I was not selected in this year’s H1B lottery. If the rule passed, can I get EAD without being selected by H1B? Is it possible to work at US with EAD and without H1B?

    Thanks in advance!

    • Greg Siskind says:

      If you’re in the country in another status, then I think you might be able to benefit, but, as I’ve been saying to everyone, it’s really just guessing until we see what USCIS is proposing.

  38. Sivakumar says:

    Hello Greg, Once we get the EAD for I-140, do we still need to maintain the H1 B status by applying extension every time?

    • Greg Siskind says:

      Under the current system, we normally advise maintaining an underlying non-immigrant status in case anything goes wrong with the green card application. But the strategies are different in each case so you’ll need to see what the new rule actually says and talk about the pluses and minuses with your counsel

      • Ganesh says:

        Hello Greg, My priority date is May 2010 (EB2 India). I just accepted an offer from another employer. Is this a bad/risky decision with regards to missing the immigration bus?

  39. Manju says:

    Dear Greg
    Can you please let me know if this applies for those with L1 visa who have an approved I-140 ?

    Thanks
    Pads

  40. Mani says:

    Thank you Greg for your blog and patiently answering all the questions. You mentioned earlier that it would possibly be in the lines of an early AOS and AP when the rule is implemented. Obviously spouse would also get EAD. What will be the status of the H4 dependent children? Will they be able to adjust the status as well. Thank you.

    • Greg Siskind says:

      The early adjustment rule – which may or may not be coming – is different than the one that would allow an EAD filing on the basis of an approved I-140. Good question on spouses. Don’t yet know how that’s going to play out.

      • Mani says:

        I am curious about the status of H4 child. Will the dependent child be given EAD if the primary H1 applicant is no longer on H1 and chooses to go on EAD?
        Thank you for your time.

  41. patel says:

    Can old employer refile revocked I 140 with old approved perm ?

    • Greg Siskind says:

      We don’t know how USCIS will treat previously denied cases. We’re going to have to wait on the proposed rule to see what approach they’re taking.

      • Patel says:

        I have unique situation. My old employer revoked approved I 140 . Now I m planning to go back to his company. Can he able to refile I 140 by using old approved perm ?

        • Greg Siskind says:

          That’s a very interesting question. I didn’t know the answer off the top of my head and did some research and didn’t find a specific answer. I do know that it’s possible in some circumstances to re-use a PERM petition for the same individual such as when upgrading from EB-3 to EB-2 or vice versa. I would think that you could try and see what happens.

        • Anonymous says:

          If your old employer revoked, they are not trustworthy. Any genuine employer will not revoke your I-140, until they have overhead of GC filing, which is rare case. Stay away if they are saying they can get it for you. Law says you will need to start the whole process from scratch again.

  42. Raj says:

    Greg Siskind thanks for answering all questions patiently

  43. patel says:

    Any progress going on to approve EAD for I 140 approved candidates ?

  44. Anonymous says:

    Hi, September visa bulletin I noticed EB2 & EB3 for india and china exact same date….and mother countries similar too… Is there any thing going on for EB catagory ?
    Thanks.

    • Greg Siskind says:

      Likely means the numbers for the fiscal year are anticipated to be used up. October is a new fiscal year so we shall see what changes. Charles Oppenheim, the writer of the Visa Bulletin, will offer a forecast every now and again so we’ll see what he’s got to say the next time he comments.

  45. Mistap says:

    Greg,
    Do you still expect the timeline for this rule being effective to be first quarter 2016, Can you estimate when will they begin comment period?

  46. Gorav says:

    Greg, a quick question (but very important for many of us) related to what you have already answered above, as you said that the EAD application in new proposal can be filed by individual. What if an employer is not ready to share a copy of I-140 and I think without that it won’t be possible to file EAD. Please advise.

    • Greg Siskind says:

      For now, that could pose a problem. However, I believe in the recent White House report, there’s discussion of planned changes that would allow the I-140 beneficiary to request a copy of the approval from USCIS. So hopefully we’ll see this soon.

  47. Mohan C. Borade says:

    http://www.immigration-law.com/XXIV.html

    India (Acceptance cut-Off Date)
    EB-1 C
    EB-2 07/01/2011
    EB-3 07/01/2005
    EB-3W 07/01/2005

  48. Sneha says:

    This is a very helpful blog and a good initiative.
    Thanks for driving this.

    It looks like this law is finally passed.
    http://www.uscis.gov/visabulletininfo

    Could you please let us know if a valid and approved I140 from a previous employer would suffice or is it mandatory to have one from the current employer for the EAD application?

    Thanks.

  49. Sneha says:

    Hi Greg,

    A very helpful blog and a good initiative. Thanks for driving this.

    Could you please let us know if an approved and a valid I140 from the previous employer prior to the cut off date mentioned would suffice for the new rule or is it mandatory to have a new I140 with the current employer inorder to apply for EAD.

    Thanks much.

    • Greg Siskind says:

      My reading is that you can use an I-140 from a previous employer and that’s in the spirit of this initiative – to make it easier for people to move employers. But I’m expecting USCIS to clarify further to give people more comfort on this issue.

  50. Rohit says:

    Greg
    Do you think the acceptance date for EAD filing will move ahead consistently or will it also halt or retrogress like approval date ( PD)?
    I am talking about EB2 India
    Thanks

    • Greg Siskind says:

      To quote what I said to another – We’re awaiting more details from DOS and USCIS on how they came up with the dates and once we know this, hopefully we’ll be able to have a better sense on expected movement.

  51. Vick says:

    I am in the same boat of an approved i140 from previous employer and new application in process through the new employer. I sincerely hope that everyone in this boat is eligible in the spirit of the initiative. Any guidance / expectation on the clarification of the rule?

    • Greg Siskind says:

      It’s on the regulatory agenda so it’s a work in progress. I’d guess this calendar year we’ll see a proposed rule. But that’s not based on anything inside that I’ve heard.

  52. SB says:

    Greg,
    I am thinking this part of the executive action will be addressed and is a work in progress status.

    “Provide clarity on adjustment portability to remove unnecessary restrictions on natural career progression and general job mobility to provide relief to workers facing lengthy adjustment delays. ”

    Am I correct in assuming this or not please confirm !

    T

  53. acemachine says:

    Hi Greg,
    According to my understanding, we cannot apply for EAD immediately after i 140 is approved right ?We still have to wait for a couple of years ?(eg EB2 for India now in the visa bulletin-2011) . Because some websites say EAD after I 140 approval.

  54. Sonam Sinha says:

    Hi Greg.

    First of all thanks for answering all these questions and assisting us.

    My PD is Jan-2013 (EB3). If i move to different employer, will i still be able to use old I-140 for EAD. I have I-140 copy.
    If My new employer will file GC after 6-8 months of joining and said i will be able to port PD (even if my current employer revokes I-140). I am kind of in dilemma if to move forward with new employer or wait here for EAD. Will i lose anything major if i move forward with new job?

    Is that normal to have employer revoking I-140 once employee move out of organization?

    • Greg Siskind says:

      I wouldn’t make assumptions at this point on the porting of a priority date if your current employer revokes. USCIS has been really inconsistent over the years on this. A new rule on I-140 revocations is expected soon which should definitely help, but you can’t rely on that yet. The safest route would be to stay with the current employer until six months after the adjustment is pending. Next safest – get the new employer to file a new H-1B and port over and get the new employer to file a new green card as a back up in case the first employer revokes.

      We’ve seen a number of cases where an employer revokes an I-140, unfortunately.

  55. Alex says:

    Hi Greg I would like to ask you please a brief question I was approved case type I140 and my priority date was 2006 but in 2010 my sponsor closed the company after financial problems am I eligible? I am living in my country right now I visited the States a few months ago with my family and searching through the web I found out this information and I appreciate if you could help me to understand it. Thank you so much for the time you take to answer to all of us .God bless you.

    • Greg Siskind says:

      Were you ever notified the I-140 was revoked? I think you would have problems as the rules stand today, but there is hope. In the near future we’re expecting a rule that would allow I-140s to continue to remain valid in closure situations. But we don’t know if the rule will only apply on a going forward basis or will cover previous denials. So you’ll have to wait and see what happens.

      • Alex says:

        No it wasn’t , actually what I did while visiting the States was an appointment at Uscsis to see what was happening after all these years with my case and I was told that the Status was still pending, I am confused now , if it wasn’t revoked can I still expect something out of it? Thank you so much again y really appreciate your help , Alex.

  56. Anonymous says:

    Hello Greg! First, thanks for the blog which answers many of our questions in regards to I-140 EAD

    I have my PD as of Aug 2014 in EB3 and 140 applied in march 2015 pending with texas center , with this 140 EAD reform draft rule coming in next month, wondering whether folks like me would be eligible to apply for 140 EAD as well.

    or would there be any strings/rules attached to the 140/EAD October reform as well ?

    also heard that irrespective of EB category people with 140 approved for more than 1 year would only be eligible for this is that true ?

    please help

  57. Kumar says:

    Hello Greg,
    Is there any rule or exception about 180 day wait after filing I-485 to use AC21 for moving to new employer , specially for people who have been already waiting on approved 1-140 for more than 2 years.
    Has USCIS updates that rule to provide relief to people who have already suffered long waits.

    thanks
    KK

    • Greg Siskind says:

      This is one of the things to consider very carefully before moving to a new employer. USCIS rules are not exceptionally clear here and that’s why we’re told more guidance is coming soon from the agency.

  58. Jagat says:

    Hi Greg,

    I am an Indian-born Canadian citizen currently on L1 (but will be on H1B effective Oct 1) and have approved I-140 (April 2015) and I believe my EB2 petition is specific to one location/office of the employer. I (with my spouse, who is on L2 and will be on H4 from Oct 1) want to get a transfer to another office of the existing employer in a different state in the next few months; may be early 2016. My question is, under the current rules, if I get the transfer (and since I will be with the same employer I presume they won’t revoke my I-140), must my employer start the GC process again, based on new location, or can they/we just wait for the new I 140 EAD/AP rules to become effective in 2016, if I can just use the already approved I 140 to get EAD/AP? Wonder if above option is feasible and also that I am not required to work at the ‘old’ location where I 140 was filed after 485 AOS, and GC is done, whenever that happens. Any thoughts will be highly appreciated.

    Thanks,
    J

    • Greg Siskind says:

      Generally speaking, moving work sites will be a problem since a PERM petition is location specific. It might be possible to eventually deal with the issue either via adjustment portability or I-140 portability when that rule comes. I’d have a good long talk with your immigration lawyer before settling on your strategy.

  59. Anonymous says:

    HI Greg,
    Thanks for your so many reply which are very helpful to us EB people.
    My question is having approved I-140 with employer A & so far not revoked by employer A.
    Now working with Employer B(not applied for new GC process), can we apply for EAD/AP per acceptance cutoff date 01jul2011(my priority date is earlier than this) on approved I-140 of employer A?
    Thanks in advance for your help.

    • Greg Siskind says:

      Until we see a change of policy, I’d be worried about filing an adjustment with an I-140 for a job you’re no longer in unless the employer documents that it is holding a job offer open for the worker who is not currently employed. Talk to your immigration lawyer about this and keep tuned for USCIS statements on this.

  60. Sonai says:

    140 EAD ,is it go or no go ? lot of rumor around over internet

  61. Anonymous says:

    Hi Greg.
    In one of the earlier post, you had mentioned that I140 from previous employer can possibly be used, but we need further clarification from USCIS.. Have you heard about any new developments on that front.
    I waited for over four years with my previous employer after my I140 was approved. Seeing no hopes of EB dates movement and significant job stagnation, I moved on to another employer and this new rule gets passed. I am happy for my colleagues who stuck on, but kind of sad that I missed the boat. I a will not be able to go back to my old employer as they are not doing so well. My job is similar, but with higher responsibilities. Any suggestions about filing I1485 with approved I140 from previous employer… Thanks in advance.

    • Greg Siskind says:

      USCIS was supposed to have a listening session and cancelled it. No word yet on rescheduling. There are many questions that immigration lawyers are posing to USCIS to get a better handle on questions like this. As of yet, not responses.

  62. A says:

    Hi Greg.

    Are there any changes in the making which will allow peole with approved I140 to change employers/roles without having an EAD?

    I hear a lot of buzz about October. What should we expect in Otober?

  63. SB says:

    I am surprised to see USCIS treating EB3 the same way as earlier when it comes to EAD filing date. One can understand the reason behind allocation of GC’s based on preference but what kind of logic is being applied when it comes to filing EAD ! This is pure discrimination.

  64. Anonymous says:

    JB Says:

    I am surprised to see this proposal. Is it true that they are discussion on this new proposal or this is just a new on air which will fall of in few months.

  65. Anonymous says:

    It seems the original link is returning a 404. Has it moved? Or is the rule no longer relevant?

  66. Ashish says:

    Is there any hope for 140 ead rule making to move forward this year ?

  67. Ram says:

    Hi Greg,

    Not sure what this means for I-140 EAD, could you throw more light on this? This is from the below:

    http://www.immigration-law.com/XXIV.html

    09/27/2015: USCIS Seeks OMB Approval of its Standards for Determination of “Same or a Similar Occupational Classification” for Purposes of Job Portability Arter 180 Days of Filing of EB-485 Applications

    On 09/25/2015, the USCIS submitted its notice of standards for determination of “same or similar occupational classification for portability of approved I-140 when the I-485 applicant changes employer after 180 days of filing of EB-485 applications under the Immigration & Naturalization Act, Section 204(j). The timing of initiation of this regulatory proceeding coincides with the U.S. Department of State release of revised October 2015 Visa Bulletin on the same day, 09/25/2015, allegedly at the request of the USCIS. Considering the fact that a substantial number of foreign workers have changed employment after approveal of 140 petitiion and a substantial number of new EB-485 filers may consider change of employment 180 days after filing of EB-485 using “filing track” cutoff date of the Visa Bulletin, this forthcoming release of the USCIS new guidance for adjudication of EB-485 applications that involve change of employment pending I-485 proceeding should be very important and critical. At this time, no details of this guidance is available. As soon as the text of this important USCIS guidance is made available, we will promptly post it at this site. Please stay tuned.

    Thanks

    Ram

  68. Sandeep Deshpande says:

    Hi Greg,

    Do you see any movement or have you heard about any action by the USCIS on 140 EAD rule?

    I mean, has NPRM period started?

    Any idea when we can have any concrete news on this rule?

    Regards,

    Sandeep

    • Sunny says:

      I think this is also killed by employer lobbyists..employees never win In uscis rules.. This is a modern day slavery..

  69. Sam says:

    Any updates on this rule making process.

  70. RP says:

    Hi Greg,

    Kindly let us know the status of I-140 EAD rule making process

  71. inbox@mailnator.com says:

    Hi Greg, Many of us waited all these months thinking the I140 EAD rule will be released in Oct. What was that Oct deadline anyway ? Is it for the final rule ? Atleast, would we know one way or the other by Oct 31 ? Hate to hold our breath, your response would be of great help..

  72. Sadasivam Babu says:

    Hi Greg,

    Great effort in running this blog. Can we still expect any progress on this rule? I think, new concept jointly worked by USCIS and DHS in identifying the dates for Filing Employment-Based Adjustment of Status Applications is conflicting with EAD for approved I140 rule.I thought EAD can be applied only when i485 is filled and while waiting for the status. If the individuals have to wait until i485 must be filled to obtain the EAD than how would be possible to get EAD once i140 approved. Will this rule allow to get EAD even though i485 is not filled? If this proposed rule allows to obtain EAD once i140 is approved, will that also allow individuals to apply AP as well? This rule is very misleading. Can we still hope any progress on this?

    Could you please help us understand?

    Thanks
    SS

  73. sirisha divi says:

    Hi Greg,

    Thank you so much for helping lot of people with their questions and I really appreciate it. Here I have one quest like, initially I entered USA on L1B and stayed over here for 1 and half hear. Then changed status to H1 and its been 2 years on H1. My question over her is, how many more years I will be eligible to stay here in USA?

    As I know on L1B allowed to stay for 5 years and on H1B allowed stay here in USA is 6 years. But my case, converted from L1 to H1 and I haven’t went to india and come back to USA even.

    I meant, I come here USA on Aug, 2012 on O1B and stayed still April, 2014. Then changed to H1B and continuing for 1 and Half hears. I never out side of USA in my entire stay of 3 years (On L1B around 1.5 years and H1B 1.5 Years.). So my question how many more years I am allowed to stay here in USA?

    Billion thanks for your favor in advance and I really appreciate your help on this.

    Best Regards
    Siri

    • Anonymous says:

      Hi Sirisha,

      If you completed your stay in USA for 3 yrs with a combination of L1 & H1 and you have another another 3 years as per H1. Now things can change if you have approved I 140 and you can stay by extending your H1.

      Thanks
      -Suresh

    • Greg Siskind says:

      You’ll get up to six years. I believe the L-1B time counts against your total H-1B time. O-1 time wouldn’t count toward your limit.

  74. RT says:

    Here is a post from oh law
    ——————————————————————-
    10/16/2015: Question of Reconciliation of Forthcoming Approved I-140 EAD Proposed Rule With Recently Implemented Visa Bulletin and Forthcoming Proposed AC-21 Portability Change Rule

    The 2015 spring rule-making agenda included agenda for USCIS to release proposed rule in October 2015 for employment-based immigration modernization, 1615-AC01 to modernize the immigrant visa system by amending its regulations governing the I-485 adjustment of status process and employment-based immigration. Through this rule, DHS is to propose to allow certain approved Immigrant Petition for Alien Worker (Form I-140) beneficiaries to obtain work authorization, clarify the meaning of portable work authorization, and remove unnecessary restrictions on the ability to change jobs or progress in careers, as well as provide relief to workers facing lengthy adjustment delays. This proposed rule has yet to be released.
    There is currently unanswered question as to how this rule would reconcile with the recently implemented Visa Bulletin reform that allows certain foreign workers with the approved I-140 to file I-485 applications when priority date is not current for I-485 approval and a proposed rule which is already submitted to the OMB for its approval on “Determining Whether a New Job is in “the Same or a Similar Occupational Classification” for Purposes of Section 204(j) Job Portability,” 1615-ZB44. The Employment-based Immigration Modernization rule 1615-AC01 is reportedly to enact a rule to allow pre-registration of I-485 for certain foreign workers who attained I-140 approvals with the benefit of EAD and travel permits as well as portability of the approved I-140 to new employment. Another pending proposed rule 1615-ZB44 appears to modify AC-21 Section 104(c) portability requiring “same or similar occupation” for change of employment. The suumary of the Employment-based Immigration Modernization Proposed Rule (1615-AC01) appears to encompass the foregoing reforms by amending the current AC-21 rule as part of the new proposed rule.

    We are anxious to see release of the proposed rule of Employment-based Immigration Modernization rule in the federal register within the next two weeks and learn how the foregoing questions are answered in the forthcoming proposed rule.
    —————————————————————————

    The last section says we are expecting a proposed rule in the next 2 weeks. How accurate is that?

  75. Satya says:

    Hi Greg! My PD is January 31, 2011. Recently, the date of filing was moved to 1 July 2011 and then moved back to 1 July 2009 as you know very well. Can I go ahead and still file the I-485/I-131/I-765 hoping the class action suit that was filed would benefit if USCIS/DOS revert to the visa bulletin released on 09/09? Or is it wise to just wait and see if the I-140 EAD rule comes into execution and I can apply for EAD along with my wife? My I-140 has been approved in August 2011.

    Also, it can happen that Date of Filing may be moved to 1 July 2011 again early next year and in that case do I have to file again if I file now before October 31st, 2015 per the 09/09 visa bulletin.

    I am just confused. Need your opinion.

  76. Prospective GC says:

    Hi Greg,

    I have a quick question about I-140-EAD. I have just got my I-140 approved from my current employer a couple of months back. Now, I am planning to switch the job in a month. I have been reading the previous comments on this blog and understood that probably an year old approved I-140 should be good for filling an EAD when this law is published. Do you see any merit to my assessment?

    Thanks!

  77. SB says:

    I am in EB3 – Priority date 2012 / FEB.

    Staying in EB3 is a Suicidal to immigration chances !! Or is there any hope !

    I wish I never came to US..

  78. HS says:

    Hello Greg,

    Thank you for your time and efforts put in to provide all of us with answers to our respective questions.

    I have a question about this rule Employment Authorization for Certain H-4 EAD eligibility.

    I have an approved I-140( EB2, approved July 2015 ) and waiting for the I-129, (filed approval for extension, maximum of 6 years is reached this Oct 2015).

    Is my wife eligible for H4- EAD now or do i need to wait for the apporval of I-129

    Appreciate your help on this.

    Best Regards,

    HS

  79. Raj T says:

    Hi Greg,

    Will an approved I-140 from a previous employer help in obtaining an EAD. I have just started the PERM process with the current employer?

  80. bhaskar CP says:

    Hi Greg,
    I saw the new rule and its approved by OMB. I saw several references of H1. I am on L1A with approved I140(on eb2 and my company wont file eb1 eventhough i am L1A). Do you know if L1b/L1A with approved i140 will get blessed under the new rule. Can you also take your best guess if its not clear for you as well. Thank you in advance!

  81. Jitendra says:

    Hi Greg,

    Thanks for the sharing the details.

    Is Advance parole (AP) part of this new EAD rule ?

    little but confused. Thanks for helping on this.

    Thanks

  82. Rupesh says:

    Hi Greg – Do you see this rule being implemented by end of Q1 2016 still?

  83. Chandrakant says:

    Hi Greg
    I have my I140 approved since August 2008 in these new rule going through omb and rule making process. Do u think I will be able apply for EAD with advance parole. Please advice and thank u so much in advance

  84. uday says:

    Is advance parole included with I-140 EAD!

  85. sk31 says:

    Greg,

    I had I140 approved with employer A, and he revoked/withdrew my application after i moved to employer B. My new employer is starting my application now, do I still hold my old PD to port onto my new application or will I loose it as per the new rule.

    Thanks

    • Greg Siskind says:

      I think you can certainly argue that you retain the priority date and will likely win on this given USCIS’ informal practice right now. Once the rule is in force, then I think you’re in even better shape.

  86. Aarthi says:

    I was on L1B status in USA for past 5 years and now transferred my visa to H1B with an approved I140 . Will my spouse with H4 status be eligible to apply EAD and start working??

  87. Tinu nath says:

    Greg – I have Approved I-140 from Employer A (NOT revoked) , I moved to Employer B , Employer B is not starting my future Green Card process. 1) Do I will get any benefits with this New Rule ? – I have approved I-140 with previous employer and New employer is not starting my future green card. 2) Can I wait or switch new employer or go back to my previous employer.

  88. Samar says:

    Any guess guys when is the EAD for I-140 rule going in effect? 1st quarter of 2016 is over.

  89. Madisonian2016 says:

    Hi Greg, I worked for a biotech company in WI for 3+ years on H1B. Due to some dirty politics, they fired me, revoked my h1b and later (in about 3-4 months) also revoked my approved I-140 in EB3. I do not know of any one reason why they did that. Anyhow, while they had revocation in process I had already gotten approval of a H1B (based on the EB3-i40) before the USCIS came out with the revocation notice. While I had valid H1B, i applied for Eb1a and NIW. I am now on EAD while I wait for USCIS decision (filing dates March, 2016).

    Can I sue that employer for firing me without a notice and without any cause? Is there any regulation from the USCIS for the employers to give a notice before they fire someone? Their action caused a huge financial burden and nerve racking stress for which I want to sue them.
    Any thoughts would be appreciated.

  90. Prashant Shah says:

    Any update on “EAD for I-140 rule” working with many Government projects since last 8years+ now, they want to hire me but problem is EAD and GC required for direct employment with Government Agencies.

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