As reported, in December 2015, USCIS published a proposed rule on the Federal Register in which the Department of Homeland Security (DHS) seeks to improve job portability for highly skilled immigrants and clarify issues affecting foreign nationals in employment-based nonimmigrant visa categories like H-1B. The proposed regulations received almost 28,000 comments. On October 24, 2016, the rule was submitted to the Office of Management and Budget for final review.
The updates to the rule primarily intend to improve the ability of U.S. employers to hire and retain specific foreign national employees who are the beneficiaries of approved employment-based immigrant visa petitions. In particular, foreign employees impacted are those affected by visa number availability backlogs created by the U.S. Department of State’s Visa Bulletin and USCIS’ Adjustment of Status filing eligibility rules. As emphasized in the rule’s summary, it seeks to increase the ability of such workers to seek promotions, accept lateral positions, change employers, or pursue other employment options. The rule also seeks to improve portability by limiting the grounds for automatic revocation of the underlying immigrant petition approval while increasing the EB-1, EB-2 or EB-3 petition beneficiaries’ ability to retain their priority dates.
Further, the new rule would improve job portability for nonimmigrant workers (specifically, those in E-1, E-2, E-3, H-1B, H-1B1, L-1, and TN) by establishing a one-time grace period of up to 60 days whenever employment ends. This provision would provide much-needed clarification and flexibility regarding job termination’s impact on the foreign national’s ability to pursue new employment and a new nonimmigrant classification. The grace period may be limited on a case-by-case basis per DHS’ discretion.
Additionally, per the new rule, DHS would automatically extend the validity of Employment Authorization Documents for up to 180 days. This extension should occur when the following requirements are met: (1) a renewal application is filed based on the same employment authorization category as the previously issued EAD; (2) such renewal application is timely filed and remains pending when the previous EAD expires; and (3) the employee’s eligibility for employment authorization continues beyond the expiration of the previous EAD without the need to adjudicate the underlying eligibility. To help against fraud and protect security, EAD applications would not be required to be adjudicated within 90 days of filing; but, interim EADs would be issued if processing does exceed 90 days.
The Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) will review the draft regulations before they are published. The period for OIRA review is limited to 90 days but may be extended; in the past, annual averages have been 53 days of rule review.