DHS Releases Proposed Rules to Modernize and Improve Employment-Based Visa Programs

On December 31, 2015, the Department of Homeland Security released proposals to streamline and update certain employment-based immigrant and nonimmigrant visa programs in order to benefit participating employers and employees.  The first portion of the proposed rules would clarify and improve policies related to H-1B workers, including:

• Allowing H-1B nonimmigrant workers who are being sponsored for lawful permanent residence (and their H-4 dependents) to extend their nonimmigrant status beyond the normal 6-year limit.
• Allowing certain workers who have pending applications for adjustment of status to change employers or jobs without endangering the approved employment-based immigrant visa petitions filed on their behalf.
• Revising the definition of the term “related or affiliated nonprofit entity” for purposes of determining which H-1B nonimmigrant workers are exempt from the H-1B numerical cap due to their employment with an institution of higher education, a nonprofit entity related to such an institution, or a governmental or nonprofit research organization.
• Allowing H-1B nonimmigrant workers who are participating in investigations of the H-1B program to provide evidence to USCIS to demonstrate that their failure to maintain H-1B status was due to “extraordinary circumstances.”

The second portion of the proposal would improve the ability of certain foreign workers to accept new jobs and promotions by changing the following:

• Enhancing job portability for certain workers who have approved I-140 immigrant visa petitions in the employment-based EB-1, EB-2, and EB-3 categories but who are unable to obtain those visas in the foreseeable future due to significant visa backlogs. I-140 petitions that have been approved for 180 days or more would no longer be subject to automatic revocation based solely on withdrawal by the petitioner or termination of the petitioner’s business. As long as the petition approval has not been revoked, the petition will generally continue to be valid as long as the beneficiary has obtained a new job offer.
• Enhancing job portability for certain high-skilled nonimmigrants by establishing a one-time grace period of up to 60 days whenever employment ends for individuals holding E-1, E-2, E-3, H-1B, H-1B1, L-1, or TN nonimmigrant status. These workers would then be able to more readily pursue new employment should they be eligible for employer-sponsored nonimmigrant classification with a new employer.

Finally, DHS is also proposing several changes to its regulations governing its processing of applications for employment authorization:

• First, to minimize the risk of any gaps in employment authorization, DHS would automatically extend the employment authorization and validity of existing Employment Authorization Documents (EADs) issued to certain individuals for up to 180 days from the date of the cards’ expiration, so long as a renewal application remains pending and is filed based on the same employment authorization category as the previously issued EAD before its expiration date.
• DHS would also eliminate the current provisions that require adjudication of EAD applications within 90 days of filing and that authorize interim EADs in cases where such adjudications are not conducted within the 90-day timeframe.

The public has until February 29, 2016 to comment on these proposed rule changes, which would take effect upon publication in the Federal Register.  Employers and employees who participate in these visa programs will likely be pleased with these changes, which should help skilled and educated workers be more productive and their jobs and contribute more fully to the American economy.

If you have questions about any of these issues, please do not hesitate to contact the Joseph & Hall P.C. to speak with one of our immigration experts!