On December 31, 2015, the Department of Homeland Security (DHS) published a proposed rule in the Federal Register, entitled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers.” The proposed rule seeks to modernize and improve certain aspects of employment-based nonimmigrant and immigrant visa programs. USCIS is also proposing regulatory amendments to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents (LPRs).
IMPORTANT: Note that the rule discussed in this article is proposed only. The proposed changes do not take effect with the publication of the notice of proposed rulemaking. Instead, they would take effect on the date indicated in the final rule, if and when the final rule is published in the Federal Register. The public has until February 29, 2016 to comment. After review of public comments, DHS may modify the rule significantly and therefore it is uncertain what it will look like once and if finalized.
Among other things, DHS is proposing to amend its regulations in order to:
- Clarify and improve longstanding agency policies and procedures implementing sections of the American Competitiveness in the Twenty-First Century Act (AC21) and the American Competitiveness and Workforce Improvement Act (ACWIA) related to certain foreign workers, which will enhance USCIS’ consistency in adjudication.
- Better enable U.S. employers to employ and retain certain foreign workers who are beneficiaries of approved employment based immigrant visa petitions (I-140 petitions) while also providing stability and job flexibility to these workers. The proposed rule will increase the ability of such workers to further their careers by accepting promotions, making position changes with current employers, changing employers, and pursuing other employment opportunities.
- Improve job portability for certain beneficiaries of approved I-140 petitions by limiting the grounds for automatic revocation of petition approval.
- Clarify when individuals may keep their priority date to use when applying for adjustment of status to lawful permanent residence, including when USCIS has revoked the approval of their approved I 140 petitions because the employer withdrew the petition or because the employer’s business shut down.
- Allow certain high-skilled individuals in the United States in E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status to apply for one year of unrestricted employment authorization if they:
- Are the beneficiaries of an approved I-140 petition,
- Remain unable to adjust status due to visa unavailability, and
- Can demonstrate that compelling circumstances exist which justify issuing an employment authorization document.
Such employment authorization may only be renewed in limited circumstances.
- Clarify various policies and procedures related to the adjudication of H-1B petitions, including, among other things, extensions of status, determining cap exemptions and counting workers under the H-1B visa cap, H-1B portability, licensure requirements, and protections for whistleblowers.
- Establish a one-time grace period during an authorized validity period of up to 60 days for certain high-skilled nonimmigrant workers whenever their employment ends so that they may more readily pursue new employment and an extension of their nonimmigrant status.
As discussed above, the above amendments are not effective and will not be effective until the rule has been published as final. Proposed rules often undergo significant changes before they are finalized and sometimes the government decides not to publish a final rule at all.