On December 31, 2015, the Department of Homeland Security (DHS) published to the Federal Register for public comment the Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers. The intended purpose of the rule change is to streamline the processes for employer sponsorship of nonimmigrant workers for a green card (lawful permanent resident (LPR) status), increase job portability and otherwise provide stability and flexibility for such workers, and provide additional transparency and consistency in the application of agency policies and procedures related to these programs. On the employer side, the intent is to improve their ability to employ and retain high-skilled workers with approved employment-based immigrant visa petitions (I-140). On the employee side, the intent is to increase the ability for those workers in the green card queue to further their careers by accepting promotions, changing positions with current employers, changing employers, and pursuing other employment opportunities.
First, the proposed rule seeks to clarify and improve policies and practices related to:
- The ability of H-1B nonimmigrant workers who are being sponsored for lawful permanent residence (and their dependents in H-4 nonimmigrant status) to extend their nonimmigrant status beyond the otherwise-applicable 6-year limit pursuant to AC21.
- The ability of 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.
- The ability of H-1B nonimmigrant workers to change jobs or employers, including: (1) The ability to begin employment with new H-1B employers that have filed non-frivolous petitions for new H-1B employment; and (2) the ability of H-1B employers to file successive H-1B portability petitions (often referred to as “bridge petitions”) and how these petitions affect lawful status and work authorization.
- The way in which H-1B nonimmigrant workers are counted against the annual H-1B numerical cap, including: (1) The method for calculating when such workers may access so-called “remainder time” (i.e., time when they were physically outside the United States), thus allowing them to use their full period of H-1B status; and (2) the method for determining which H-1B nonimmigrant workers are “cap-exempt” as a result of previously being counted against the cap.
- The method for 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 or affiliated with such an institution, or a governmental or nonprofit research organization, including a revision to the definition of the term “related or affiliated nonprofit entity” for such purposes.
- The ability of H-1B nonimmigrant workers who are disclosing information in aid of, or otherwise participating in, investigations regarding alleged violations of Labor Condition Application obligations in the H-1B program to provide documentary evidence to USCIS to demonstrate that their resulting failure to maintain H-1B status was due to “extraordinary circumstances.”
Second, the proposed rule seeks to enhance the stability and flexibility of the program by making the following changes:
- Retention of employment-based immigrant visa petitions. DHS proposes to enhance job portability for certain workers who have approved immigrant visa petitions in the employment-based first preference (EB-1), second preference (EB-2), and third preference (EB-3) categories but who are unable to obtain those visas in the foreseeable future due to significant immigrant visa backlogs. Specifically, DHS proposes to amend its automatic revocation regulations so that immigrant visa 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 for fraud, material misrepresentation, the invalidation or revocation of a labor certification, or USCIS error, the petition will generally continue to be valid to the beneficiary for various job portability and status extension purposes under the immigration laws. Such a beneficiary, however, must obtain a new job offer and may need another immigrant visa petition approved on his or her behalf to ultimately obtain status as an LPR.
- Retention of priority dates. DHS proposes to further enhance job portability for workers with approved EB-1, EB-2, and EB-3 immigrant visa petitions by providing greater clarity regarding when they may retain the priority dates assigned to those petitions and effectively transfer those dates to new and subsequently approved employment-based immigrant visa petitions. As with the immediately preceding provision, priority date retention generally would be available so long as the initial immigrant visa petition was approved and this approval has not been revoked for fraud, material misrepresentation, the invalidation or revocation of a labor certification, or USCIS error. This provision would improve the ability of certain workers to accept promotions, change employers, or accept other employment opportunities without fear of losing their place in line for immigrant visas based on the skills they contribute to the U.S. economy.
- Nonimmigrant grace periods. To enhance job portability for certain high-skilled nonimmigrants, DHS proposes to generally establish a one-time grace period, during an authorized validity 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. This proposal would allow these high-skilled workers to more readily pursue new employment should they be eligible for other employer-sponsored nonimmigrant classifications or for the same classification with a new employer. Conversely, the proposal allows U.S. employers to more easily facilitate changes in employment for existing or newly recruited nonimmigrant workers. The individual may not work during the grace period, unless otherwise authorized by regulation. As needed, DHS in its discretion may eliminate or shorten the 60-day period on a case-by-case basis.
- Eligibility for employment authorization in compelling circumstances. DHS also proposes to provide additional stability and flexibility to certain high-skilled nonimmigrant workers in the United States who are the beneficiaries of approved employment-based immigrant visa petitions but who cannot obtain an immigrant visa number due to statutory limits on immigrant visa issuance and are experiencing compelling circumstances. Specifically, DHS proposes to allow such beneficiaries in the United States on E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status to apply for separate employment authorization for a limited period if there are compelling circumstances that, in the discretionary determination of DHS, justify the consideration of such employment authorization.
- H-1B licensing. DHS proposes to clarify exceptions to the requirement that make approval of an H-1B petition contingent upon licensure where such licensure is required to fully perform the duties of the specialty occupation. The proposed rule would generally allow a petitioning employer that has filed an H-1B petition for an unlicensed worker to meet the licensure requirement by demonstrating that the worker has filed a request for such license but is unable to obtain it, or is unable to file a request for such a license, because a state or locality requires a social security number or the issuance of employment authorization before accepting or approving such requests. The proposed rule also clarifies that DHS may approve an H-1B petition on behalf of an unlicensed worker if he or she will work in a State that allows such individuals to be employed in the occupation under the supervision of licensed senior or supervisory personnel.
Finally, the proposed rule seeks to provide stability for individuals eligible for Employment Authorization Documents by automatically extending the validity in certain circumstances and by eliminating the regulatory provisions that require adjudication within 90 days of filing and that authorize interim EAD cards.
The proposed rule has been allotted 60 days for public comment. We intend to provide a detailed outline of the rule in the coming weeks that will break down the expected changes in plain English.