DHS has issued a wide-ranging proposed regulation that will offer important benefits to employment-based immigrants, H-1B workers and foreign workers in E-3 and H-1B1 status. The changes are primarily aimed at high-skilled workers who are beneficiaries of employment-based immigrant visa petitions by increasing the ability of sponsored immigrants to change employers, change jobs and be promoted. Other provisions offer greater flexibility and job portability to certain non-immigrant workers, particularly those who have been sponsored for employment-based permanent residence. In addition, the proposed rule interprets provisions of AC21 and ACWIA relating to:
- the ability of H-1B workers to extend their status beyond the six-year limit, pursuant to AC21.
- the ability of sponsored immigrants with pending I-485’s to change employers or jobs without putting the approved I-140 at risk,
- the ability of H-1B workers to begin employment with new employers that have filed non-frivolous transfer petitions
- the ability of H-1B employers to file successive petitions – referred to as ‘‘bridge petitions’’ – and how these petitions affect lawful status and work authorization.
- the method used to count H–1B workers against the annual numerical cap,
- the method for determining which H-1B workers are ‘‘cap-exempt’’ as a result of previously being counted against the cap.
- the method for determining which H-1B nonimmigrant workers are exempt from the H-1B numerical cap due to employment with an institution of higher education, a nonprofit entity related to or affiliated with such an institution, or a governmental or nonprofit research organization, including a revision to the definition of the term ‘‘related or affiliated nonprofit entity’’
- the ability of H-1B workers who “whistle blowers” to demonstrate that their failure to maintain H-1B status was due to ‘‘extraordinary circumstances.’’
Additional specific provisions include:
- a rule which amends the automatic revocation regulation so that immigrant visa petitions that have been approved for 180 days or more would no longer be subject to automatic revocation based solely on withdrawal by the petitioner or termination of the petitioner’s business.
- a rule to enhance job portability for workers with approved EB–1, EB–2, and EB–3 immigrant visa petitions by providing greater clarity regarding when they may retain the priority dates assigned to those petitions and effectively transfer those dates to new and subsequently approved employment-based immigrant visa petitions.
- A 60-day grace period for individuals in E–1, E–2, E–3, H–1B, H–1B1, L– 1 or TN status which would allow them to more readily pursue new employment should they be eligible for other employer-sponsored nonimmigrant classifications or for the same classification with a new employer.
- eligibility for employment authorization in compelling circumstances beneficiaries of approved I-140’s unable to obtain an immigrant visa number due to statutory limits on immigrant visa issuance and who can show compelling circumstances.
- rules which permit H–1B workers subject to licensing requirements to begin working without a license upon satisfactory proof that the worker has applied for the license but is unable to obtain it, or is unable to file a request for such a license, because a state or locality requires a social security number or the issuance of employment authorization before accepting or approving such requests.
DHS is also proposing several changes to regulations governing the processing of applications for employment authorization. Most importantly, the new provisions will provide an automatic extension of Employment Authorization Documents (“EAD”) in certain circumstances based on the timely filing of an application to renew such EADs.