Welcome the Impending Changes to Immigration Law | DCR Workforce Blog

Welcome the Impending Changes to Immigration Law

The unemployment rate in the US is at an eight year low and the competition for skilled talent is very high. There’s no doubt that shortages in the required skills available in the labor pool are the biggest HR challenge today. The effects of this scenario leave the most impact on the tech industry in the US, which depends heavily on the use of immigrants to achieve its business goals. The Department of Homeland Security (DHS) is cognizant of this factor when proposing any changes to immigration laws and when amending employment-based immigrant and nonimmigrant visa programs.

The proposed changes are expected to benefit both employers in the US and foreign national workers who wish to work for them. Employers enjoy more flexibility in employing and retaining high-skilled workers. The changes pertain to the immigrant visa categories and the processing of US Legal Permanent Residence Status.

  • The new regulations bring welcome changes to the Automatic Revocation Regulations for Employment-Based Immigrant Visas. It modifies the extant regulations governing the retention of employment-based immigrant visa petitions, and sets priority dates for such petitions.
  • It provides clarity with regard to the criteria for determining cap-exempt employers.
  • It sets grace periods for certain nonimmigrant visa categories, like a 60-day grace period which allows a foreign worker more flexibility in changing jobs.
  • It allows employment authorization to be extended in compelling circumstances, and even grants an automatic extension of Employment Authorization Documents (EAD) under extenuating circumstances.
  • It doesn’t revoke immigrant visas that have been approved for 180 days or longer when the original petitioner withdraws the petition or the petitioning business ceases to exist. Under current regulations, foreign workers who are the beneficiaries of approved immigrant visas (commonly known as form I-140) could lose critical benefits, such as the ability to extend their H-1B visa beyond a sixth year, if they terminate employment with the company that originally filed the I-140.
  • Instead, it would allow the foreign worker to keep the benefit of the I-140 approval, including retaining the priority date, as long as the I-140 was approved for at least 180 days; except when petitions are revoked based on fraud, material misrepresentation, invalidation or revocation of a labor certification, or error by the US Citizenship and Immigration Service (USCIS). Such cases would be treated differently, and the foreign worker would not derive benefits from such petitions.
  • The regulations seek to add a 10-day grace period for additional nonimmigrant categories other than H-1B. Under existing regulations, H-1B nonimmigrants are allowed to enter the United States 10 days prior to commencement of their employment and are allowed an additional 10 days post completion of their H-1B assignment to leave the country.  The proposed rule change would extend this grace period to nonimmigrant visa categories like E-1, E-2, E-3, L-1 and TN.
  • The new regulations seek to create a new 60-day grace period for E-1, E-2, E-3, H-1B1, L-1, TN and H-1B visa holders where employment ends early for those workers. Under existing regulations, foreign workers whose employment ends—whether voluntarily or through termination—are considered to be in violation of their status and must depart the United States immediately.  The proposed regulations would give a one-time 60-day grace period after the end of employment for the foreign worker to seek alternative employment, nonimmigrant visa classification or opt for another option.
  • The new rule would extend employment authorization to highly skilled workers who are the beneficiaries of approved employment-based immigrant visa petitions and are in the United States in nonimmigrant status.  This new employment authorization would be separate and distinct from the foreign worker’s previous nonimmigrant status; separating employment authorization from the status of their nonimmigrant visa. Under the proposed change, the individual would be able to seek an employment authorization document that is not a continuation of the nonimmigrant status but rather an independent basis for employment authorization.

Who qualifies?

  • The nonimmigrant worker who is in the United States and maintains an E-3, H-1B, H-1B1, O-1 or L-1 visa status,
  • A worker who is the beneficiary of an approved immigrant visa petition under EB-1, EB-2, or EB-3 visa classification,
  • The immigrant visa cannot be immediately available and
  • The individual must demonstrate compelling circumstances that justify an independent grant of employment authorization.

Examples of compelling circumstances provided by DHS include: serious illness and disabilities, employer retaliation, other substantial harm to the applicant and significant disruption to the employer.

Automatic extensions of EADs

The new proposed rule by DHS allows certain individuals to continue employment without first obtaining a renewal of an EAD. These individuals would automatically get their employment authorization extended for 180 days if and when:

  • They file a renewal of the EAD prior to the expiration of the existing EAD,
  • They request renewal based on the same employment authorization category under which the expiring EAD was granted, and
  • They either continue to be employment authorized “incident to status” – meaning the visa category he or she holds confers the right to work – beyond the expiration of the EAD or apply for renewal under a category that does not first require adjudication of an underlying application, petition or request.

For an individual who qualifies under the above-mentioned criteria, the expired EAD in combination with a Notice of Action (I-797C, commonly referred to as a receipt notice) would be considered an unexpired EAD for purposes of complying with Employment Eligibility Verification (Form I-9) requirements.

This proposed rule is now open for public comment for 60 days, after which the DHS may move forward with implementation of the final rule.

The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.