DHS Modernizes and Amends Employment Visa Programs

US Citizenship and Immigration Services (USCIS) has published a final rule related to Department of Homeland Security (DHS) efforts to modernize and generally improve certain employment-based visa programs. Along with the final rule, employers in the United States are better enabled to hire and retain certain foreign workers who are awaiting their turn in the queue to become lawful permanent residents– green card holders.

Specifically, DHS has addressed employment-based nonimmigrant and immigrant visa programs. Amended DHS regulations include:

  • Enhancement of adjudication consistency in terms of the longstanding DHS policies and implementation practices of particular sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act in regard to certain foreign workers
  • Improve U.S. employers’ ability to employ and retain high-skilled workers when these workers are beneficiary of approved employment-based immigration visa petitions– Form I-140 petitions– resulting in more stability and job flexibility to foreign workers. The rule allows workers to accept promotions, change positions with their current employer and also pursue other job opportunities.
  • Improvement of job portability in cases of certain beneficiaries with approved Form I-140 petitions by maintaining the validity of a petition under some circumstances even in cases where an employer withdrawals petition approval or an employer’s business shutters
  • Clarification and expansion of conditions when individuals can keep their priority date when applying for an adjustment of status to lawful permanent residency.
  • Clarification of various policies and procedures around H-1B petitions, including the provision of H-1B status beyond the six year authorized period of admission, determining cap exemptions and counting workers under the H-1B cap, H-1B portability, licensure requirements and protections for whistleblowers, among other things
  • Establishment of  two grace periods of up to 10 days for individuals in the E-1, E-2, E-3, L-1, and TN nonimmigrant classification categories as a means of providing a reasonable amount of time for these individuals to prepare to begin employment in the country and to depart the United States or take other actions to extend, change, or otherwise maintain lawful status
  • Establishment of a grace period of up to 60 consecutive days during each authorized validity period for certain high-skilled nonimmigrant workers in cases where their employment ends before the end of their authorized validity period as means of more readily pursuing new employment and an extension of nonimmigrant status
  • Extension of the employment authorization is automatic and validity of Employment Authorization Documents (EADs or Form I-766s) for certain individuals who apply on time for renewal of their EADs
  • Elimination of the regulatory provision requiring USCIS to adjudicate the Form I-765, Application for Employment Authorization, within 90 days of filing and that authorizes interim EADs in cases where such adjudications aren’t conducted within the 90-day timeframe.
  • Allowance of certain high-skilled immigrants in the U.S. who are holding nonimmigrant status in the E-3, H-1B, H-1B1, L-1 categories, or who are holding nonimmigrant status in the O-1 category to apply for employment authorization, including any applicable grace period for a limited time in cases where all of these conditions:
    • Individuals are the principal beneficiary of an approved Form I-140 petition
    • An immigrant visa isn’t authorized for issuance for the individual’s priority date, and
    • Circumstances are demonstrated as compelling so as to justify DHS discretion in the issuance of an employment authorization document
    • Renewal of these employment authorizations are allowed only under limited circumstances and only in one-year increments.

Such employment authorization may only be renewed in limited circumstances and only in one year increments.

More information is available by visiting the Working in the U.S. page.