DHS Proposes Regulation to Modify Rules for Highly Skilled Nonimmigrant Workers

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DHS today published in the Federal Register a proposed regulation that would make changes to existing rules relating to highly skilled nonimmigrant workers. The proposed changes are intended to improve and streamline the immigration process for certain workers, and the proposal contains a number of key improvements. The proposal contains a number of areas that could be problematic, particularly depending on how USCIS interprets the provisions. Highlighted below are a few of the key proposals:

  • Modification of Automatic Revocation of I-140 Approval Based on Employer Withdrawal – I-140 approvals that have been approved for 180 days or more and then withdrawn by the petitioning employer would no longer be subject to automatic revocation unless there is a finding of fraud, material misrepresentation, revocation of a labor certification, or USCIS error. A worker with an approved I-140 that meets this definition could use the I-140 filing date for purposes of H-1B 7th year extensions and retention of the priority date for future I-140 filings.
  • Creation of a 60 Day Grace Period Following Conclusion of Employment – The regulation would create a 60-day grace period for Es, H-1Bs, H-1B1s, L-1s, and TNs following conclusion of employment. This is designed to assist individuals who have an unexpected job loss or change. The individual would be in status during this grace period but not employment-authorized.
  • Creation of Limited EADs for Individuals with Approved I-140s and “Compelling Circumstances” – The regulation would allow USCIS to issue a one-year Employment Authorization Document (EAD) to individuals in E-3, H-1B, H-1B1, L-1, or O-1 status if that individuals meets certain specific criteria. In particular, the individual would need to:
    • Have an approved I-140 immigrant petition;
    • Have a priority date that is not yet current but that is within 1 year of becoming current; and,
    • Show “compelling circumstances.” The regulation provides no definition of compelling circumstances but the states that the statutory-defined time limit for nonimmigrant status maxing out (such as an L-1B worker reaching his/her 5-year maximum stay date) would not be a compelling circumstance. Examples given of potential compelling circumstances include serious illness or disability, employer retaliation, substantial harm to the applicant, or substantial disruption to the employer (such as a corporate restructuring resulting in an L-1 worker no longer qualifying for L-1 status or a cap-exempt H-1B suddenly becoming cap-subject because of a change in affiliation).
    • Note: the one-year EAD could not be extended unless there continue to be compelling circumstances or the individual is within one year of his/her priority date becoming current. Also note that a felony conviction or two or more misdemeanor convictions would eliminate eligibility for this EAD. Dependents of individuals obtaining an EAD under this provision could also obtain an EAD.
  • Automatic 180 Day Extension of Some EADs with Timely Filed Renewal Application – There would be an automatic extension of EADs where a renewal application is timely filed in the same EAD category and the individual continues to be eligible for the EAD without needing a concurrent extension of status. For example, an individual with an EAD based on a pending adjustment of status application would get this benefit, but an L-2 or H-4 EAD would not since the underlying status would also need to be extended.
  • Elimination of Regulatory 90 Day EAD Processing Requirement – The regulation would eliminate the requirement for USCIS to process an EAD application within 90 days, although USCIS would still target 90-day processing and would allow inquiries for cases pending more than 75 days.
  • Potential Expansion of “Related or Affiliated” Definition for Cap Exemption Purposes – The regulation would expand what kinds of employers are considered “related or affiliated” with a cap-exempt institution, such as a college or university, for purposes of H-1B cap exemption, although the language of the regulation is somewhat unclear and much could depend on how USCIS implements the regulation.
  • Reassessment of Cap Subject Status Upon Termination of Employment with a Cap Exempt Employer – Upon termination of employment at cap-exempt employer, USCIS would reassess an H-1B worker’s cap exempt status and could revoke an existing approval for concurrent employment with a cap-subject employer.
  • Formalizes Existing Policy Regarding H-1B Petitions for Individuals Requiring a License – This provisions formalizes a May 2009 USCIS memo by confirming that an employee can file an H-1B petition showing that she/he has applied for a license but the state will not issue it because the worker needs a social security number and/or employment authorization. Also, if a particular state allows a worker to work without a license if supervised by licensed personnel an H-1B could be filed and approved. The H-1B would be approved for 1 year, and could not be extended unless the license is obtained.

It is important to recognize that this is currently just a proposal now open to a 60-day comment period. It is not yet known whether a final regulation will ultimately be implemented or what the final content of that regulation will be and until a new regulation goes into place existing laws continue without change. After this 60-day comment period ends (on 02/29/2016) DHS will consider and respond to the comments before publishing a final regulation. Individuals with questions about the proposed regulation, or with questions about options for highly skilled nonimmigrant workers, should contact SPS Immigration PLLC.

By | 2017-09-20T17:51:03+00:00 December 31st, 2015|Categories: H-1B, I-140, Immigration Legislation, Immigration Reform|Comments Off on DHS Proposes Regulation to Modify Rules for Highly Skilled Nonimmigrant Workers

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