On December 31, 2015, USCIS published proposed regulations for comment regarding the retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements affecting High-Skilled Nonimmigrant Workers. The proposed regulations and amendments are intended to provide various benefits to certain employment-based immigrant and nonimmigrant visa programs including improved processes for U.S. employers seeking to sponsor and retain immigrant and nonimmigrant workers, greater stability and job flexibility for such workers, and increased transparency and consistency in the application of agency policy related to affected classifications. The Department of Homeland Security ("DHS") seeks to codify practices that are already being implemented by various federal agencies pursuant to policy memoranda and other nonbinding agency communications. Below is a summary of the notable changes:

A. Proposed Implementation of AC21 and ACWIA

Codification: DHS proposes to enhance the ability of certain workers to change jobs or employers if they are the beneficiary of an approved I-140 petition and have pending applications for adjustment of status. Specifically, for the purposes of approving adjustment of status applications, the approved I-140 petitions will continue to remain valid in the event of a job change, provided the adjustment of status applications have been pending for 180 days or more and the workers have received new job offers in the same or similar occupational classification.

Potential Change: DHS is proposing the addition of a new supplementary form to the I-485, adjustment of status application. The new form will confirm that the job offer described in the I-140 immigrant petition remains available to the worker or in the event that the worker is moving to a new job, that the new offer of employment is in the same or a similar occupational classification as the job offer listed in the previously submitted I-140 petition.

B. Additional Changes to Further Improve Stability and Job Flexibility Proposed Changes

Potential Change: Under the proposed regulations, EB-1, EB-2, and EB-3 immigrant visa petitions that have been approved for 180 days or more would no longer have the approval automatically revoked based only on withdrawal by the petitioner or the termination of the petitioner's business.

Codification: DHS proposes to clarify that the priority date of any properly filed employment-based visa petition that does not require a labor certification will be the date the complete signed petition is properly filed with DHS.

Codification: The proposed regulations would also clarify that the priority dates of EB-1, EB-2, and EB-3 petitions may be used for subsequently filed EB-1, EB-2, and EB-3 petitions unless USCIS denies the petition (or otherwise fails to approve it) or revokes the petition's approval due to (1) fraud or a willful misrepresentation of a material fact; (2) a determination that the petition was approved in error; or (3) revocation or invalidation of the labor certification associated with the petition.

Potential Change: Proposed regulations would extend current grace periods for H-1B nonimmigrant workers–which authorize admission up to 10 days before and after the relevant validity period–to certain other high-skilled nonimmigrant classifications (E-1, E-2, E-3, L-1, and TN classifications) and authorizes one time grace periods for E-1, E-2, E-3, L-1, TN , H-1B and H-1B1 nonimmigrant classifications for up to 60 days during the period of petition validity whenever employment ends.

Codification: DHS further proposes to codify current policy where DHS may approve an H-1B petition for a one year validity period if state or local license to engage in the relevant occupation is required and the appropriate licensing authority will not grant such a license absent evidence that the beneficiary has been issued a social security number and granted employment authorization.

C. Processing of Applications for Employment Authorization Documents (EADs)

Potential Change: DHS proposes to automatically extend the validity of expiring EADs for up to 180 days from a document’s expiration and such employment authorization’s expiration date in certain circumstances upon the timely filing of a renewal application. This provision will only apply to individuals with pending applications for adjustment of status and other employment authorized individuals who are seeking renewal of an EAD based on the same employment authorization category under which it was granted and who either continue to be employment authorized incident to status beyond the expiration of the EAD. The automatic EAD extension will not apply to certain H-4 and L-2 spouses of H-1B and L-1 nonimmigrants.

Potential Change: DHS proposes to eliminate an existing regulation that requires DHS, with certain limited exceptions, to adjudicate EAD applications within 90 days of receipt.  

The 60 day comment period for the proposed regulations ended yesterday. Per commentary from a wide variety of business associations and organizations, the provisions of the regulation most concerning to the employer community are the elimination of the 90 day requirement for EAD application processing and the Limited Automatic Extension of EAD validity. Many organizations are pushing for the Department of Homeland of Security to maintain the 90 day processing requirement to maintain accountability of the agency. Other suggestions have included increasing the lead time allowed to apply for EAD renewals from 120 to 180 days and allowing for automatic extension of the EAD if a renewal is timely filed. These suggested changes will cause less disruptions to employers if an employees EAD renewal is not timely adjudicated by USCIS.