Info on regulation changes proposed by USCIS for Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers

On December 30, 2015, USCIS published proposed regulation changes entitled “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers.”

This is just the proposed rule. These are not the final rules and these proposed rules are not in effect yet. USCIS will now be taking comments and recommendations from the public on the proposed rule until February 29, 2016. At that point USCIS will make changes to the proposed rules based upon their review of the proposed rules and the comments they receive. It is unknown how long it will take for USCIS to make the changes and to issue the Final Rule. When USCIS does issue the Final Rule, the final rule will state when the changes will go into effect and when potential beneficiaries of these rule changes will be able to submit applications for new benefits under the rule changes. So it is important that you do no file any applications for the benefits listed in the changes yet.

You may submit comments on or before February 29, 2016, identified by “DHS Docket No. USCIS-2015-0008” by one of the following methods:

• Federal eRulemaking Portal: You may submit comments to USCIS by visiting http://www.regulations.gov. Follow the instructions for submitting comments.
• Email: You may submit comments directly to USCIS by emailing them to: USCISFRComment@dhs.gov. Please include DHS Docket No. USCIS-2015-0008 in the subject line of the message.
• Mail: You may submit comments directly to USCIS by mailing them to: Laura Dawkins, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW., Washington, DC 20529. This mailing address may be used for paper, disk, or CD-ROM submissions. To ensure proper handling, please reference DHS Docket No. USCIS-2015-0008 on your correspondence.
• Hand Delivery/Courier: You may submit comments directly to USCIS by hand delivery or courier to: Laura Dawkins, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW., Washington, DC 20529. The contact telephone number is (202) 272-8377. To ensure proper handling, please reference DHS Docket No. USCIS-2015-0008 on your delivery.

According to the USCIS Summary of the proposed rule “The Department of Homeland Security (DHS) is proposing to amend its regulations related to certain employment-based immigrant and nonimmigrant visa programs. The proposed amendments would provide various benefits to participants in those programs, including: improved processes for U.S. employers seeking to sponsor and retain immigrant and nonimmigrant workers, greater stability and job flexibility for such workers, and increased transparency and consistency in the application of agency policy related to affected classifications. 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 (LPRs), while increasing the ability of such workers to seek promotions, accept lateral positions with current employers, change employers, or pursue other employment options.

First, DHS proposes to amend its regulations consistent with certain worker portability and other provisions in the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), as amended, as well as the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA). These proposed amendments would clarify and improve longstanding agency policies and procedures—previously articulated
in agency memoranda and precedent decisions—implementing sections of AC21 and ACWIA related to certain foreign workers, including sections specific to workers who have been sponsored for LPR status by their employers. In so doing, the proposed rule would enhance consistency among agency adjudicators and provide a primary repository of governing rules for the regulated community. In addition, the proposed rule would
clarify several interpretive questions raised by AC21 and ACWIA.

Second, consistent with existing DHS authorities and the goals of AC21 and ACWIA, DHS proposes to amend its regulations governing certain employment-based immigrant and nonimmigrant visa programs to provide additional stability and flexibility to employers and workers in those programs. The proposed rule would, among other things: improve job portability for certain beneficiaries of approved employment-based
immigrant visa petitions by limiting the grounds for automatic revocation of petition approval; further enhance job portability for such beneficiaries by increasing their ability to retain their priority dates for use with subsequently approved employment-based immigrant visa petitions; establish or extend grace periods for certain high-skilled nonimmigrant workers so that they may more easily maintain their nonimmigrant status
when changing employment opportunities; and provide additional stability and flexibility to certain high-skilled workers by allowing those who are working in the United States in certain nonimmigrant statuses, are the beneficiaries of approved employment-based immigrant visa petitions, are subject to immigrant visa backlogs, and demonstrate compelling circumstances to independently apply for employment authorization for a limited period. These and other proposed changes would provide much needed flexibility to the beneficiaries of employment-based immigrant visa petitions, as well as the U.S. employers who employ and sponsor them for permanent residence.

Finally, to provide additional certainty and stability to certain employment authorized individuals and their U.S. employers, DHS is also proposing changes to its regulations governing the processing of applications for employment authorization to minimize the risk of any gaps in such authorization. These changes would provide for the automatic extension of the validity of certain Employment Authorization Documents (EADs or Forms I-766) for an interim period upon the timely filing of an application to renew such documents. At the same time, in light of national security and fraud concerns, DHS is proposing to remove regulations that provide a 90-day processing timeline for EAD applications and that require the issuance of interim EADs if processing extends beyond the 90-day mark.”

The entire proposed rule can be read online on the Federal Register at: https://www.federalregister.gov/articles/2015/12/31/2015-32666/retention-of-eb-1-eb-2-and-eb-3-immigrant-workers-and-program-improvements-affecting-high-skilled

But as the proposed rule is approximately 181 pages long, I would instead recommend reading the summary of the proposed rule written by fellow Siskind Susser Law Firm attorney, Greg Siskind, which is available at: http://blog.ilw.com/gregsiskind/2015/12/30/siskind-summary-the-i-140ac-21ead-proposed-regulation/

Greg Siskind also posted an article on January 1, 2016, responding to some of the misconceptions that have been going around about the proposed changes. Greg Siskind’s article is available at:  http://blog.ilw.com/gregsiskind/2016/01/01/the-page-113-conspiracy/

Last updated on January 10, 2016, By Ari Sauer.