USCIS Proposed Regulations Affecting Employment-Based Immigration

On December 31, 2015, the US Citizenship and Immigration Services (USCIS) published long-awaited proposed regulations regarding work authorization for various categories of immigrant foreign nationals. The regulations are open for comment until February 29, 2016. The full 181 pages are available here.

In the news release, USCIS describes the regulations as aiming to "...modernize and improve certain aspects of employment-based nonimmigrant and immigrant visa programs. USCIS is also proposing regulatory amendments to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents (LPRs)." Many of the regulations codify existing USCIS policy.

A brief summary of the new regulations is below. A more detailed analysis will follow in the next few days as we review the regulations.

Permanent Residence Applicants

1. AC21 Portability. Foreign nationals who are pursuing permanent residence can already change jobs if (a) their  Adjustment of Status application (Form I-485) has been pending for 180 days or more, and (b) the new position is in the "same or similar" occupational classification. The new regs clarify the meaning of "same or similar". They also state that an I-140 cannot be revoked if it has been approved for 180 days or more, unless there is evidence of fraud, misrepresentation, etc in the filing. USCIS is proposing a new addendum to the Form I-485 to be filed in cases of a job change.
2. Emergency EADs.  In cases of emergency, the beneficiary of an I-140, and her dependent family members, can apply for EADs. The application must show "compelling circumstances" , which include medical emergency, employer retaliation (i.e. employer is making applicant's job intolerable), or significant disruption to the employer's business, e.g. where the employee can only continue to work if the EAD is granted because no other work authorization is available due to changed circumstances.

Employment Authorization Documents (EAD)

1. USCIS proposes automatic extensions of some EADs for 180 days once an extension application has been timely filed.
2. USCIS would eliminate the (long ignored) mandatory 90-day processing time for EAD applications.

Nonimmigrant Changes

1. There will be a new grace period of up to 60 days at the end of employment for some holders of E, L, H and TN visa, where employment ends before the end date of the petition. These foreign nationals can remain in the US, but cannot work during the grace period. There will also be a grace period of 10 days at the beginning and end of a petition's validity, allowing the foreign national to enter the US 10 days before the job starts, and remain for 10 days at the end.
2. H-1B applicants whose occupation requires a licence may apply if the licence application has been filed but not yet approved in some circumstances.
3. The definition of entities that are eligible to file H-1B cap-exempt has been expanded, slightly.

​For more details about the proposed changes, please check back with this blog soon, or contact us directly.