DHS and USCIS published long-awaited proposed rules on December 31 that address issues faced by high-skilled immigrants, but the majority of the changes are very modest and disappointing overall. Many of the proposals codify existing policy and interpretations, and while a few alleviate some of the worst problems, others are far from what was expected and what the Administration could have proposed. Over a year ago, the Administration promised to “modernize” the employment-based immigration system to the extent possible within the boundaries of the current law.
One of the most pressing issues in the high-skilled immigration system is the long delays in the green card process, particularly for immigrants from certain countries. These employees are already the beneficiaries of immigrant petitions based on the unavailability of their skills in the U.S. labor market, but their immigrant petitions are currently only valid for the employer who sponsored them. During the long wait for their green cards to become available, skilled immigrants in these backlogs are stuck on employer-sponsored temporary visas, a situation that some employers exploit and that limits an employee’s career advancement as often a new employer is unwilling to repeat the expensive employment-based sponsorship process for a new hire. In addition, employment authorization for spouses is limited, and children born outside the United States but raised here are at risk of “aging out” and losing the opportunity to obtain their green cards as derivative dependents of their parents. The proposed rule contains helpful provisions meant to protect these skilled immigrants from the worst problems associated with their temporary visa status.
For example, the proposed rule will allow certain skilled workers with compelling circumstances who have an approved I-140 immigrant visa petition to apply for a one-year employment authorization card if specific criteria are met. Additional criteria include that the individual is currently in the U.S., maintaining E-3, H-1B, H-1B1, O-1 or L-1 status, and cannot immediately move forward with the permanent residence process due to visa backlogs. Although compelling circumstances is left undefined in the proposed rule to provide flexibility for the skilled worker, several examples are outlined by DHS, which might include the need to relocate because of a disability or illness, employer retaliation for a working conditions complaint, or a compelling need of the employer to have the employee continue employment. Extensions of the one-year period of employment authorization are extremely limited and an individual will be ineligible for such employment authorization if convicted of any felony or two or more misdemeanors. Spouses and children will be eligible for an EAD if the principal spouse or parent is granted an EAD. The EAD of the dependent will only be granted for the same time period of the principal spouse or parent. This is an area where the proposal should have provided more flexibility to immigrants who have followed the rules but may find themselves stuck because of quota backlogs they did not create. The high standard required to justify a grant of employment authorization under compelling circumstances means that many skilled immigrants will not qualify as outlined in the proposed rule.
The proposed rule also allows certain classes of individuals eligible for employment authorization to have the validity of their EADs automatically extended for a period of 180 days as long as the renewal application for an extension was timely filed. H-4 and other spouses with EADs are not eligible for the 180-day benefit. Under the proposed rule, a filing receipt will be required to demonstrate work authorization for Form I-9. Although DHS indicates that it will remain committed to a 90-day processing time period, the 90-day time limit to process EADs is being eliminated under the proposed rule.
In addition, the rule will grant E, L, H-1B and TN workers a sixty-day “grace period” after their employment ends, which will allow them to either look for other employment, change to a different type of temporary visa, or wrap up their affairs in the United States. This is an improvement given that under current interpretation the employee’s status ends immediately upon termination of employment. Another proposal will allow for 10-day grace periods at the beginning and end of the validity period for work visa categories other than the H-1B category.
The proposed rule also provides “whistleblower” protections for some employees who report wage and working condition violations, allowing them to change to a new employer or another status even if their employer terminated their employment. It also codifies current administrative practice in a number of areas, including the definition of employers exempt from the annual cap on H-1B visas (universities, nonprofit research organizations, government research organizations, and related or affiliated nonprofit organizations), the eligibility of H-1B employees to work for a new sponsoring employer upon filing of a new H-1B petition, and the ability of H-1B nonimmigrants to have that status extended beyond the general six year limitation during the long green card sponsorship process.
With the change in Administration coming in 2017, it is likely that this proposed rule will become final in the coming months once comments are reviewed and incorporated. Comments are due February 29, 2016.