The Department of Homeland Security published its final rule today for modernizing the employment based immigration. The rule will take effect 60 days from today, which should be right before the change in the administrations. This rule is a big deal for employment immigration. It is also just plain big, weighing in at 94 pages in the Federal Register.
It institutes many changes. Broadly speaking, the rule affects cap-exempt determinations for H-1Bs, creates grace periods for certain situations, revokes the 90 day EAD rule, and creates a compelling circumstances EAD. The rule will probably lead to more self-petitions from professionals, typically under the national interest waiver category. It will take some time to sort through all of it, but the general impression is the rule will make improvements upon the employment based immigration system.
Unless….of course, the Trump Administration takes steps to revoke the rule. The Trump Administration and the key people involved with immigration have loudly been anti-immigration, whether legal or illegal. There is some chance therefore that steps may be taken to roll back this and other rules.
Here’s USCIS’s announcement on the rule, with more particulars:
USCIS Publishes Final Rule For Certain Employment-Based Immigrant and Nonimmigrant Visa Programs
WASHINGTON— USCIS has published a final rule to modernize and improve several aspects of certain employment-based nonimmigrant and immigrant visa programs. USCIS has also amended regulations 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. This rule goes into effect on Jan. 17, 2017.
Among other things, DHS is amending its regulations to:
• Clarify and improve longstanding DHS policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act related to certain foreign workers, which will enhance USCIS’ consistency in adjudication.
• Better enable U.S. employers to employ and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions (Form I-140 petitions) while also providing stability and job flexibility to these workers. The rule increases the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers and pursuing other employment opportunities.
• Improve job portability for certain beneficiaries of approved Form I-140 petitions by maintaining a petition’s validity under certain circumstances despite an employer’s withdrawal of the approved petition or the termination of the employer’s business.
• Clarify and expand when individuals may keep their priority date when applying for adjustment of status to lawful permanent residence.
• Allow certain high-skilled individuals in the United States with E-3, H-1B, H-1B1, L-1 or O-1 nonimmigrant status, including any applicable grace period, to apply for employment authorization for a limited period if:
1. They are the principal beneficiaries of an approved Form I-140 petition,
2. An immigrant visa is not authorized for issuance for their priority date, and
3. They can demonstrate compelling circumstances exist that justify DHS issuing an employment authorization document in its discretion.
Such employment authorization may only be renewed in limited circumstances and only in one year increments.
• Clarify various policies and procedures related to the adjudication of H-1B petitions, including, among other things, providing H-1B status beyond the six year authorized period of admission, determining cap exemptions and counting workers under the H-1B cap, H-1B portability, licensure requirements and protections for whistleblowers.
• Establish two grace periods of up to 10 days for individuals in the E-1, E-2, E-3, L-1, and TN nonimmigrant classifications to provide a reasonable amount of time for these individuals to prepare to begin employment in the country and to depart the United States or take other actions to extend, change, or otherwise maintain lawful status.
• Establish a grace period of up to 60 consecutive days during each authorized validity period for certain high-skilled nonimmigrant workers when their employment ends before the end of their authorized validity period, so they may more readily pursue new employment and an extension of their nonimmigrant status.
• Automatically extend the employment authorization and validity of Employment Authorization Documents (EADs or Form I-766s) for certain individuals who apply on time to renew their EADs.
• Eliminate the regulatory provision that requires USCIS to adjudicate the Form I-765, Application for Employment Authorization, within 90 days of filing and that authorizes interim EADs in cases where such adjudications are not conducted within the 90-day timeframe.
For more information, visit the Working in the U.S. page or read the rule in the Federal Register. USCIS plans to host a national stakeholder engagement regarding this final rule. Visit this page to sign up for an email alert to receive the invitation from the USCIS Public Engagement Division.
For more information on USCIS and its programs, please visit www.uscis.gov or follow us on Twitter (@uscis), YouTube (/uscis), Facebook(/uscis), and the USCIS blog The Beacon.
– USCIS –