DHS Proposes Broad Regulation Affecting Employers of High-Skilled Foreign Workers

The Department of Homeland Security and U.S. Citizenship and Immigration Services today released a proposed regulation to modify many aspects of the immigrant and nonimmigrant work authorization process. The rule weighs in at a hefty 181 pages, and addresses longstanding issues related to foreign worker mobility.  This is a very significant proposal for employment based immigrants, and the employers that employ them.

A two month comment window will open with the publication of the proposal, once published in the Federal Register.

The proposed rule attempts to better implement two laws: the American Competiveness and Workforce Improvement Act of 1998 (“ACWIA”) and the American Competiveness in the Twenty-First Century Act of 2000 (“AC21”).  Specifically, the rule attempts in large part to address some the natural consequences of the multi-year waits for immigrant visas under the Immigration and Nationality Act’s quota system.  As of this writing, an Indian national with an EB-3 professional approval (e.g. Bachelor’s degree) has to wait over a decade for an immigrant visa to become available.  Here’s what the rule says on this:

This proposed rule is intended, in part, to address some of the challenges that flow from the statutory limits on immigrant visas, consistent with existing DHS authorities. [ p. 47]….[S]imply put, many workers in the immigrant visa process are not free to consider all available employment and career development opportunities. This effectively prevents U.S. employers from treating them like the high-potential individuals the employer hired them to be, thus restricting productivity and the promise they offer to our nation’s economy and undermining the very purpose of the employment-based immigrant visa system that prioritizes such workers for LPR status. The lack of predictability and flexibility for such workers may also prevent them from otherwise investing in and contributing to the local, regional, and national economy or fully assimilating into American society. [p. 50]

The proposal takes many existing USCIS practices, previously implemented through a mish-mash of agency memos, and for better or worse, tidies them up into regulations. Perhaps more significantly, the proposal creates several new rules regarding work authorization and employment authorization documents, in an attempt to improve career advancement opportunities for foreign workers, as well as worker mobility.  The current administration has on multiple occasions said that the government should take steps to address natural career progression, in the context of visa backlogs. Unfortunately, the proposed rule also seems to let the agency off the hook for adjudication delays, such as in the case where it strikes the 90 day rule for adjudication of employment authorization documents.  More on this below.

The results:  some good news, some bad news, and a lot of wait and see. The possibility of litigation before implementation exists.  We’ll just have to see how it shakes out after the two month comment period. You can be sure we will be following this closely.

Here are some highlights on initial review:

• The creation of an automatic work authorization of 180 days for a timely filed Employment Authorization Extension, as well as the end of the 90 day obligation to adjudicate rule for the agency. This year the agency has been taking more than 90 days to issue EADs, as it has fallen behind in so many things, and this has forced HR Departments to stop employing nonimmigrants who reasonably thought they filed an extension in time.

• The creation of a new supplement for I-485 Adjustment of Status applications, for establishing that employment continues to be the same as petitioned for, or a “same or similar occupation”. The agency has really focused on building a body of law (or guidance?) in this regard this past year.

• Clarification and improvements upon the retention of priority dates for subsequent petitions. Also, softer rules benefiting beneficiaries of approved I-140s, against revocation, if 180 days have passed since approval.

• A one-time nonimmigrant grace period for 60 days for E-1, E-2, E-3, H-1B, H-1B1, L-1, or TN nonimmigrants, to find new jobs.

• A “compelling circumstances” EAD for E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrants, to be granted on a discretionary basis.

• Applying for a professional license may be satisfactory for H-1B purposes, if it can be demonstrated that the license can’t be granted without a social security number. The agency’s current fix for this situation is to only grant one year of H-1B time, thus forcing a renewal sooner than the typical three years.

• USCIS unfortunately appears to be tightening the rules about original petitioners, labor certifications, and I-140s. This may affect situations involving mergers, acquisitions, and changes in business structure.

• The rule calls out specific rules for recapturing time outside the country, for H-1B purposes. Basically, an H-1B holder is entitled to six years of H-1B time, and if they spend part of that time outside the country, that period of time can be “recaptured”.  The rule provides more specifics on process, which I anticipate will just mean a more defined, and therefore higher burden of proof.

• The rule addresses interpretations related to determining cap-exemptions for cap-exempt employers. For the health care sector and research organizations, this will need to be reviewed closely, and may well merit comment before the rule becomes final.

• The rule focuses on whistleblower provisions for H-1B workers, relating to rate of pay. Basically, the agency seems to be encouraging more whistleblowing, to make sure employers are conforming with labor condition application requirements. We’re always careful to advise on employer responsibility in this regard.

• I-9 documentation rules will be changed to account for work authorization changes enabled elsewhere in this regulation. Its always a challenge for employers to stay up on the latest changes with I-9 matters.

• Ten day grace period for H-1Bs, as set in regulation, to allow them to enter the country before working, and depart within 10 days afterwards, is extended to several other nonimmigrant work authorization classifications (Es, Ls, TNs).