New York Lawyer's Legal Updates

New Proposed Rule Regarding Non-immigrant Work Visas

Author: Visa lawyer Alena Shautsova

The New Year comes with new proposed changes in work visas regulations. I would like to emphasize that the rule published is a proposed rule. It means it is not the law yet, and we can only speculate what the final result would be. However, it is worth to highlight certain proposed changes just to see the direction in which the DHS is moving.

First, the proposed rule would largely conform DHS regulations as to longstanding agency policies and procedures established in response to certain sections of the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), Public Law 105–277, div. C, tit. IV, 112 Stat. 2681, and the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), Public Law 106–313, 114 Stat. 1251, as amended by the 21st Century Department of Justice Appropriations Authorization Act, Public Law 107–273, 116 Stat. 1758. In short, it will codify the rules about extensions of status for H1B holders who are being sponsored for permanent residency. Also, it would codify portability rule contained in Section 106(c) of AC21 which provides that certain immigrant visa petitions filed under the EB–1, EB–2, and EB–3 preference categories will remain valid with respect to a new qualifying job offer if the beneficiary changes jobs or employers, provided an application for adjustment of status has been filed and such application has been pending for 180 days or more. Important to remember that the new job offer must be in the same or a similar occupational classification as the job for which the original immigrant visa petition was filed. In addition, the proposed rule would codify AC21’s cap exemption provisions for individuals employed at an institution of higher education, a nonprofit entity related or affiliated to such an institution, or a nonprofit research or governmental research organization.

The proposed rule will also codify the regulations regarding H1B portability. Congress created such H–1B portability to ‘‘allow an H– 1B visa holder to change employers at the time a new employer files the initial paperwork, rather than having to wait for the new H–1B petition to be approved. Notably: to be eligible for an extension of status, an individual must file for an adjustment of status or an immigration visa within one year of an immigrant visa becoming immediately available with certain exception. Also, the proposed rule would allow to be self-employed for portability purposes. Importantly, under the proposed rule the approved earlier 140 petition would not be automatically revoked based on withdrawal or termination of the petitioner’s business. As long as there was no fraud involved or there was no revocation of the labor certification, the I 140 approval will remain valid. However, a new immigrant petition will be required.

Second, the rule offers clarifications as to priority date for EB1, EB2 (NIW) and EB5 categories: the priority date will be the date when completed, signed petition is filed with DHS. The proposed rule offers grace periods to seek new employment opportunities: DHS offers to increase the grace period from 10 to 60 days for H1B and H1B1 cases (currently, 10 days are provided to H1B workers before the beginning of the employment to make arrangements for work, and after the termination of employment to either find a new employer or make arrangements to leave the US), and to extend it for E1, E2, E3, L1 and TN cases.

Finally, the proposed rule would create a new basis for an Employment Authorizations for holders of E-3, H1B, H1B1, O-1 or L1 status, who are the beneficiaries of approved immigrant visa petitions filed by sponsoring U.S. employers and who face compelling circumstances such as serious illness and disabilities, employer’s retaliation. The new EAD would allow to change an employer without waiting for 180 days, change a geographical area of employment or position without jeopardizing underlying immigrant process. Negative: the applicant would have to give up his/her non-immigrant status and this in turn will cause the applicant not to be able to change status or adjust status.

Other proposed changes include automatic extension for up to 180 days of the EADs when request is filed for the same category and prior to the current EAD’s expiration. The receipt of filing for a new EAD coupled with the old EAD will be treated as unexpired EAD for the I-9 purposes. Also, DHS (probably due to the recent lawsuit) is proposing to eliminate the 90 day deadline for the EAD adjudication.

As mentioned, these are just proposals, and public may comment on them until February 26, 2016.

06 January 2016
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