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