On Dec. 31, 2015, the Department of Homeland Security published proposed amendments in the Federal Register to its regulations related to EB-1, EB-2, and EB-3 immigrant visa programs, as well as the nonimmigrant visa programs, including the H-1B visa. The EB-1 category is the first preference employment-based immigrant visa category, for aliens with extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers. The EB-2 category is the second preference employment-based immigrant visa category, for members of the professions holding advanced degrees and aliens of exceptional ability. The EB-3 category is the third preference employment-based immigrant visa category, for skilled workers (i.e., workers with at least two years of training or experience), professionals (i.e., members of the professions holding baccalaureate degrees), and other workers (i.e., unskilled workers with less than two years of training and experience). The H-1B nonimmigrant visa category is for specialty occupation workers, and is a temporary nonimmigrant visa category commonly held by highly-skilled workers.

The proposed amendments intend to create 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 clarity of the application of agency policy related to affected classifications. In particular, the proposed changes are aimed at improving the ability of U.S. employers to hire and retain highly-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions in the EB-1, EB-2, or EB-3 categories who are waiting to become lawful permanent residents (LPRs). Due to visa number availability dependent on preference category and country of chargeability (usually country of birth), beneficiaries can face long delays in their eligibility for LPR status; because their current status generally depends on their employment terms and conditions at the time of their employment-based immigrant visa petition’s approval, they accordingly encounter challenges regarding job promotions or changes or switching to another employer altogether.

The proposed amendments would result in welcome clarification and improvement of longstanding agency policies and procedures, especially regarding provisions in the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), as amended, as well as the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA). Among other goals, the proposed amendments seek to:

  • improve job portability for certain beneficiaries of approved employment-based immigrant visa petitions by limiting the grounds of automatic revocation of petition approval;
  • further enhance job portability for such beneficiaries by increasing their ability to retain their priority dates for use with subsequently approved employment-based immigrant visa petitions;
  • establish or extend grace periods for certain high-skilled nonimmigrant workers so that they may more easily maintain their valid nonimmigrant status when changing employment;
  • provide additional stability and flexibility to certain high-skilled workers by allowing those who are working in the U.S. certain nonimmigrant statuses, are the beneficiaries of approved employment-based immigrant petitions, are subject to immigrant visa backlogs, and demonstrate compelling circumstances to independently apply for employment authorization for a limited period;
  • automatically extend the validity of certain Employment Authorization Documents (EADs) for an interim period upon the timely filing of an application to renew such documents; and
  • remove regulations that provide a 90-day processing timeline for EAD applications due to national security and fraud concerns, but issue an interim EAD if processing exceeds 90 days.

Overall, the proposed amendments establish flexibility for both foreign national employees and their employers, as well as promote transparency and consistency within the relevant agencies. They reflect the significant goal of enhancing the United States’ access to high-skilled workers and the importance of allowing such workers to undertake professional prospects, particularly in light of the country’s dramatic expansion since the Immigration Act was passed in 1990 (when the current immigrant visa number allocations were created). As noted in the proposal, the current rules essentially “undermin[e] the very purpose of the employment-based immigrant visa system” by “restricting productivity and the promise they offer to the our nation’s economy,” as “many workers in the immigrant visa process are not free to consider all available employment and career development opportunities.” The amendments seek to fix these issues.

All interested parties are invited to participate in the rulemaking by submitting written comments within 60 days of the proposed amendments’ publication (i.e., by 02/29/2016).