DHS Issues Final Rule Easing Green Card Process for High-Skilled Workers

By Roy Maurer Nov 22, 2016
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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.

Provisions

Specifically, the final rule:

  • Establishes a grace period of up to 60 consecutive days during each authorized validity period to allow E, H-1B, L-1 and TN workers who have lost their jobs to find new employment and extend their visa status. There has been a common misunderstanding of the grace period that previously was permitted, said Tahmina Watson, an immigration attorney and owner of Seattle-based Watson Immigration Law. "I have many clients, especially on H-1B visas, who say they believe they have 30 days. When I tell them that they have 10 days before and after the validity of their visa period and no grace period when fired or laid off, jaws drop. Imagine wrapping up all your affairs in a country in which you have spent several years. Ten days is definitely not enough."
  • Allows green card petitions that have been approved for at least 180 days to remain valid after the petitioning employer withdraws the petition or goes out of business.
  • Allows workers with approved EB-1, EB-2 and EB-3 employment-based visas to retain their priority dates—which determine when their green cards are available—if they change jobs and are beneficiaries of new petitions, as long as the original petition wasn't revoked.
  • Extends a one-year period of employment authorization with the possibility of renewal to certain beneficiaries approved for green cards who can prove compelling circumstances. DHS will not definitively define "compelling circumstances" to allow for flexibility, "but, in general, it cannot be simply that a visa is unavailable," Watson said. Some of the situations that will be considered, she explained, include serious illnesses and disabilities, employer retaliation, substantial harm to the applicant, and a significant disruption to the employer—for example, loss of funding or corporate restructuring.
  • Allows H-1B visa workers being sponsored for permanent residence status to extend their temporary stay beyond the six-year limit; to change jobs or employers while a new H-1B petition is pending; and to recapture time spent outside the U.S. during their period of H-1B status to extend their stay.
  • Allows certain workers with pending applications for adjustment of status to change employers or jobs without endangering their approved green card petition.
  • Outlines new methods for determining if an H-1B worker is cap-exempt due to being previously counted against the cap or through employment at an institution of higher education, a nonprofit related to or affiliated with an institution of higher education, or a government or nonprofit research organization.

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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