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The U.S. Department of Homeland Security (DHS) issued final regulations aimed at improving the ability of U.S. employers to hire and retain high-skilled workers approved for permanent residence, while boosting job flexibility for those workers.
The rule goes into effect Jan. 17, 2017, and protects workers with approved green card petitions from losing their priority date in green card backlogs when they change jobs; establishes a 60-day grace period for temporary foreign workers who have lost their jobs; clarifies various H-1B status extensions and cap exemptions; and automatically extends certain work authorization documents to minimize authorization gaps.
"These improvements are increasingly important considering the lengthy waits and consistently growing demand for immigrant visas," DHS said. The green card process can take years or even decades once an application is approved due to annual caps on employment-based green cards and limits per country. The demand for visas is especially strong for skilled workers from countries such as China and India.
[SHRM members-only Q&A: What is the foreign labor certification process?]
Covered workers will be able to seek promotions, accept lateral positions with their current employer, change employers or pursue other employment options while they wait for their approved employment-based green card.
In part, the proposed regulations also codify laws enacted over 15 years ago—the American Competitiveness in the Twenty-First Century Act of 2000 and the American Competitiveness and Workforce Improvement Act of 1998.
Specifically, the final rule:
Work Permit Changes
The final rule will automatically extend the validity of existing Employment Authorization Documents (EADs) for up to 180 days from the date of expiration, as long as a renewal application is timely filed based on the same category as the previously issued work permit and the worker's eligibility for work authorization continues beyond the expiration of the permit.
"This will be a big benefit for many individuals, as DHS has had difficulty meeting its 90-day requirement for extensions," said Justin Storch, manager of agency liaison at the Council for Global Immigration, an affiliate of the Society for Human Resource Management. "This has created unnecessary lapses in work authorization that create problems for employers."
At the same time, DHS is eliminating the 90-day time frame for adjudicating applications for employment authorization, which Storch said will be problematic for first-time EAD filings.
Future of New Rule Under Trump
Since the rule will take effect prior to the end of the Obama administration, the rule will be difficult to rescind, Storch said. "The Trump administration would need to engage in full notice-and-comment rulemaking to do so, an effort that would take time and may not be a focus of the new administration given the president-elect's other immigration priorities."
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