New DHS Proposed Regulations Seek to Ease the Plight of Foreign Workers in the U.S.

The U.S. Department of Homeland Security (DHS) has proposed changes to regulations that promise to ease some of the immigration concerns plaguing foreign employees seeking U.S. permanent residence and to provide for greater stability and flexibility to the immigration system.

Drafted by DHS, the nearly 200 pages of proposed regulations released December 30 would enable U.S. employers to continue to employ and retain high-skilled workers seeking U.S. permanent residence while increasing employees’ ability to further their careers by accepting positions, changing positions, changing employers, and pursuing other employment opportunities without jeopardizing their immigration status. The regulations would, for example, help some employees facing years of visa backlogs that prevent them from obtaining green cards to remain in status and continue working in the U.S.

“The proposed amendments would clarify and amend policies and practices in various employment-based immigrant and nonimmigrant visa programs, with the primary aim of providing additional stability and flexibility to both foreign workers and U.S. employers participating in those programs,” according to DHS.

Some of the proposed regulations clarify DHS policies and practices already in place. However, the regulations, which are not yet final, also include significant changes that according to DHS, will significantly benefit employers and the foreign nationals they hire. The proposed regulations include:

• Establishing a one-time 60-day grace period for foreign national employees in H-1B, L, TN and certain other work-related statuses who leave their current employers voluntarily or involuntarily. The change would enable terminated employees to seek other employment during the 60-day grace period without terminating their work authorized immigration status. Currently, there is no grace period following termination, thereby rendering an H-1B, L, or other employee out of status as soon as his or her employment ends.

• An automatic 6-month extension of Employment Authorization Documents (EAD) following an EAD card’s expiration date as long as a renewal EAD application is filed prior to the expiration date. Because of the six-month extension, the regulations would remove the requirement that United States Citizenship and Immigration Services (USCIS) adjudicate EAD applications within 90 days of filing and that issue interim EADs if the EAD is not issued within that 90-day period.

• In certain “compelling circumstances,” USCIS would provide individuals who have approved immigrant visas petitions, but are unable to obtain an immigrant visa number due to visa backlogs, the ability to apply for separate EAD authorization for a one-year period if they can no longer maintain their nonimmigrant status. Although stopping short of defining “compelling circumstances,” the proposed regulations cite as examples a nonimmigrant worker who has a serious illness or disability that substantially changes his or her employment circumstances, an individual who is subject to retaliation resulting from a dispute with the employer concerning the employer’s illegal or dishonest activity, or an employee unable to timely extend or otherwise maintain status or obtain another nonimmigrant status that would result in substantial harm to his or her family.

• Providing that an approved immigrant visa (I-140) petition cannot be revoked or withdrawn by employers after 180 days as long as there is no fraud or material misrepresentation involved. “As long as the petition approval has not been revoked for fraud, material misrepresentation, the invalidation or revocation of a labor certification or to USCIS error, the petition will generally continue to be valid to the beneficiary for various job portability and status extension purposes under the immigration laws,” the proposed regulations state.

Other changes and clarifications in the proposed regulations include allowing individuals to retain their initial priority date based on an approved I-140 Immigrant Petition for Alien Worker, and to transfer those dates to green card applications filed by another employer; providing more detail on methods for determining which H-1B workers are exempt from the H-1B numerical cap due to employment with a university or nonprofit entities; easing the ability for certain workers to obtain H-1B status even if they are unable to obtain required licenses for such positions; and protecting H-1B workers who disclose information or participate in investigations involving alleged violation of H-1B Labor Condition Application obligations .

USCIS is asking for comments from the public on the proposed regulations According to USCIS, the proposed changes are not yet in effect and will take effect on the date indicated in a final rule when published in the Federal Register.

For more information on the proposed regulations and the impact they will have on employers and foreign national employees, contact an immigration attorney at Minsky, McCormick & Hallagan, P.C.