DHS Proposing new employment based immigration regulations

The Department of Homeland Security [DHS] is offering rule that would modernize and improve certain aspects of employment based immigration visa programs. People with temporary work visas waiting for a green card are the one who is going to get more benefits because of these projected changes. The DHS says that the projected changes are ‘envisioned to better expedite US employers to recruit and maintain extremely accompanied workers who have profited from employment-based immigration visa petitions, while growing the skill of such workers to progress their careers by accepting raises, changing positions with present employers, changing employers, and trailing other employment opportunities.

Many of the projected changes will actually have no practical effect of any kind, according to the National Law Review – an online news source published by a group of in-house attorneys. The National Law Review states that even the most noteworthy change of them all, relating to work authorization for certain individuals with approved I-140s, will have very little effect basically.

Highlights:

1. The extension of an H-1B visa can be obtained beyond the maximum six-year stay.
2. When an H-1B non-immigrant can shift jobs or employers without it affecting his or her permitted immigrant visa petition.
3. How to calculate H-1B recapture time [days outside the US that do not count towards the maximum six-year stay].
4. Those businesses that qualify as H-1B ‘cap-exempt’ employers. This is important as in recent years the H-1B visa quota is immensely oversubscribed within a few days of the quota becoming available at the opening of April each year.
5. Offering a one-time 60-day grace period, during an authorized validity period, for individuals in E-1, E-2, E-3, H-1B, L-1, or TN status, where employment ends due to voluntary or involuntary termination or lay off. These individuals are not authorized to work during the grace period.
6. An addition of the 10-day grace period allowed prior to and after H-1B status to also include persons in E-1, E-2, E-3 or L-1 status. During the 10-day grace period, you will not be permitted to work. On a one time basis, you also benefit from 60 day grace period, if you are on this employment related visas.
7. Permitting issuance of one-year Employment Authorization Documents (EAD) for individuals in E-3, H-1B, H-1B1, L-1 or O-1 status with an approved I-140 and no available visa numbers if the individual can show compelling circumstances. It is not certain what is meant by convincing circumstances; DHS includes examples, such as serious ailment and disabilities. If you work with an EAD in these circumstances then it will be considered to be the case that you are no longer on a non-immigrant work visa and when visa numbers are available will need to apply for an immigrant visa from outside the US. If you have an EAD your spouse and children may also be able to apply for an EAD. Renewals are allowed in certain circumstances.
8. Removing the 90-day processing time required by United States Citizenship and Immigration Services (USCIS) for Employment Authorization Documents (EADs), spontaneously extending most EADs 180 days beyond the expiration if the extension was timely filed.

It is worthwhile to note that the DHS proposal does include other regulatory amendments. However, these additional changes largely conform to current policy guidance, and so the primary purpose of the regulations in these additional areas is to formalize the existing guidance.