Proposed Rule Boosts Job Portability for Foreign Workers

By Roy Maurer Jan 13, 2016

Job portability, visa processing and work authorization for high-skilled immigrants and workers approved for green cards would change under a proposed rule from U.S. Citizenship and Immigration Services (USCIS).

The proposal would protect workers with approved green card petitions from losing their priority date in green card backlogs while they change jobs; establish a 60-day grace period for temporary foreign workers who have lost their jobs; clarify various H-1B status extensions and cap exemptions; and automatically extend certain work authorization documents to minimize authorization gaps.

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.

“Many of these changes are primarily aimed at improving the ability of U.S. employers to hire and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents, while increasing the ability of such workers to seek promotions, accept lateral positions with current employers, change employers, or pursue other employment options,” USCIS said.

“The proposed regulations have the potential to change a wide array of provisions in the employment-based immigration system,” said Jacob Cherry, an immigration attorney in the Atlanta office of Ogletree Deakins. “However, due to various eligibility criteria and other limiting factors, a careful reading suggests that the impact upon employers and their foreign national employees may not be as far-reaching as one might expect from such a voluminous proposal.”

Job Portability

The proposed regulations would improve job portability for certain beneficiaries of approved employment-based immigrant visa (I-140) petitions.

Provisions include:

  • Allowing I-140 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. USCIS would continue to require a valid and qualifying offer of employment at the time a worker seeks to apply for or receive adjustment of status, however. “This is huge. I cannot tell you the number of times I have encountered anxious immigrant workers and employers who need to file new petitions immediately for fear of I-140 revocations,” said Tahmina Watson, an immigration attorney and owner of Seattle-based Watson Immigration Law. The agency would “retain its long-standing authority to revoke a petition in the event of fraud or willful misrepresentation, invalidation or revocation of the underlying labor certification, or cases involving government error,” Cherry said.
  • Allowing workers with approved EB-1, EB-2 and EB-3 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.
  • Creating an official, one-time grace period of up to 60 days to allow E, H-1B, L-1 and TN workers who have lost their jobs to find new employment and extend their visa status. “This provision would provide additional flexibility in cases of sudden termination of employment,” Cherry said. There is a common misunderstanding of grace periods, Watson explained. “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.”
  • Extending a one-year period of employment authorization with the possibility of renewal to certain beneficiaries approved for green cards who can prove compelling circumstances. USCIS says it will not define “compelling circumstances” to allow for flexibility, “but, in general, it cannot be simply that a visa is unavailable,” Watson said. “The issue must be out of the control of the worker.” 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 restructure.

H-1B Provisions

These proposed provisions include:

  • Codifying current agency practice allowing workers sponsored by employers for permanent residence to extend H-1B status beyond six years if subject to per-country limitations on green cards or subject to lengthy adjudication delays.
  • Clarifying that workers with approved I-140 petitions and adjustment of status applications pending for 180 days or longer can change employers or jobs provided that the new job is the same or a similar occupational classification as the employment offer listed in the approved petition.
  • Allowing H-1B workers to change jobs while a new H-1B petition is pending.
  • Allowing H-1B workers who spent time outside the U.S. during their period of H-1B status to recapture that time to be able to use the maximum period of H-1B status.

The rule also 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.

Employment Authorization Documents

To help prevent gaps in employment authorization, USCIS proposes to automatically extend the validity of expiring employment authorization documents for up to 180 days in certain circumstances upon the timely filing of an application to renew.

The proposed rule also eliminates the current 90-day time frame for adjudicating applications for employment authorization. “This will be a big benefit for many individuals as USCIS 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.”

Interested parties have until Feb. 29, 2016, to comment.

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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