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DHS Proposed Rule May Improve Employment-Based Immigration

waste-paper-499987-m.jpgLast week, the Department of Homeland Security (DHS) released a formal notice of its proposed rulemaking (NPRM) on the subject of employment-based immigration programs for highly-skilled foreign workers. The NPRM was published in the Federal Register on December 31, 2015, and the public has 60 days to comment on the NPRM provisions.

The NPRM covers a variety of critically important issues, many of which were supposed to be the focus of the still unpassed comprehensive immigration reform legislation. We have highlighted a number of the provisions below and encourage visitors to engage in the comment making procedure before the period closes on February 29, 2016.

AC21 and ACWIA Provisions

AC21 and ACWIA are statutes that former presidents signed into law more than 15 years ago. However, DHS still hasn’t promulgated official regulations in order to implement the provisions of these two laws. Because of the non-existence of governing regulations, immigration attorneys, U.S. employers, and foreign nationals have had to rely on informal and unofficial agency memoranda which has resulted in much confusion, expense, and frustration for all parties involved.

The NPRM addresses this problem by formally solidifying much of the previously relied upon agency guidance such as the continued validity of an immigrant petition in the face of a job change, the continued ability of an H-1B worker to “recapture” any time spent outside of the U.S. for purposes of the H-1B six-year cap, and the continued ability of H-1B workers to immediately begin working with a new U.S. employer upon the filing of an H-1B transfer petition with U.S. Citizenship and Immigration Services (USCIS).

It is important to note that the NPRM contains new or additional requirements to the AC21 and ACWIA standard practices such as the requirement that H-1B workers must file their adjustment of status applications within one year of their priority date becoming current in order to maintain their eligibility for 7 year extensions.

Provisions to Improve Job Flexibility

The NPRM contains a number of provisions designed to improve the ability of foreign workers to change jobs. First, the NPRM states that a Form I-140 Petition that has been approved for at least 180 days will no longer be revoked either on the basis of the employer’s withdrawal of the petition or due to the closure of the employer’s business. Second, the NPRM confirms that a foreign worker may retain a priority date from a previously approved Form I-140 Petition regardless of the termination of the employer’s business or its decision to withdraw the petition.

Moreover, the NPRM proposes a one-year initial period of employment authorization to E-3, H-1B1, H-1B, L-1, and O-1 foreign workers provided the foreign workers are beneficiaries of approved Form I-140 Petitions and their priority dates are within one year of becoming current. If the foreign worker meets these two criteria, the worker would then also be required to show “compelling circumstances” that would warrant the approval of the separate employment authorization.

The Rant

The NPRM is a significant move in the right direction toward immigration reform, especially in the much-needed area of employment-based immigration. Continue to check back with our blog for all immigration-related updates.

Additional Blog Posts:

The Government’s War on H-1Bs, ImmigRantings, October 11, 2012
Obama Signs Immigration Executive Order, ImmigRantings, June 15, 2012
Problems with the H-1B visa: From Work Horse to Show Pony, ImmigRantings, February 13, 2012