New Proposed Rule Changes for Highly-Skilled Non-immigrants are “Helpful, but Timid”

Muslim woman working on computer

On December 31, 2015, the Department of Homeland Security (DHS) issued a notice of proposed rulemaking that will affect highly-skilled workers, and other types of non-immigrants. Most of these changes, as described by the American Immigration Lawyers Association (AILA), are “helpful, but timid.” Others changes, however, give reason for concern. This blog entry will give a brief rundown of the new proposed rule changes.

Many of the new “changes” are actually just a regulatory codification of existing agency policy and guidance that has developed in the past 15 years—since the enactment of the American Competitiveness in the 21st Century Act, and the American Competitiveness and Workforce Improvement Act. These changes include: allowing H-1B visa extensions beyond the general 6-year limitation, allowing permanent visa portability to a job in a same or similar occupation, H-1B portability, and H-1B cap exemption rules.

For H-1B cap exemption rules, the new regulation would expand upon the definition of “related or affiliated nonprofit entities” for the purpose of the H-1B cap exemption. This would allow the inclusion of entities that have a formal, written affiliation with a qualifying cap exempt institution to also take advantage of the H-1B cap exemption. This is a welcome addition, but see our earlier blog article below for why these proposed changes could also be problematic for employees who are “employed at” qualifying institutions, but do not spend all of their time working there.

The new rule seeks to provide limited relief and protections for those stuck in long visa backlogs. This includes new protections for those seeking to retain their priority dates and the validity of their immigrant petitions, when they have been withdrawn by an employer for reasons outside of their control, so long as there is no fraud, misrepresentation, or “error” in originally granting the petition. (This could be worrisome, however, that a later adjudicator could revoke a prior petition on grounds of an ill-defined “error.” ) The new rule also codifies the sixty-day grace period in which a nonimmigrant’s visa remains valid once their employment ends. These changes are generally a welcome step forward in protecting immigrants who have been working hard and waiting a long time to receive their green cards, but who may want to change employers without it hurting their immigration status or priority date.

The new proposed rule also seeks to create a new, temporary one-year work authorization for certain types of employer-based non-immigrants who are waiting to receive a green card. This new work authorization type is available, when a non-immigrant has filed an immigration petition, and their priority date is within one year of becoming current. It will only be available, however, if the person can show that “compelling circumstances” exist that are outside the person’s control that merit the issuance of a work authorization. “Compelling circumstances” have yet to be defined, but they might include the need to relocate because of disability or illness, employer retaliation against a whistleblowing employee, or a compelling need of the employer. Hardworking, talented highly-skilled workers are likely to be disappointed that this new provision has not gone far enough. Many highly-skilled workers have waited many years in long visa backlogs for their immigrant petition to become approved, and face difficulty maintaining their work authorization during that time. Another problem with this new type of work authorization, is that once approved, the foreign national’s non-immigrant status is relinquished, which can be problematic if they want to make any other change or adjustments to their status in the meantime.

Finally, the new proposed rule will grant an automatic work authorization renewal for up to 180 days, when a nonimmigrant seeks to renew their work authorization, or until their renewal application has been adjudicated. However, this new automatic 180 day extension will not be available to DACA renewals or H-4 renewals.

While we commend DHS’s attempts to improve and clarify the rules for highly-skilled non-immigrant workers and employers, we feel there are areas of concern that have been raised, and that they missed an opportunity here to take bolder action. DHS and Congress must enact meaningful immigration reform that provides greater flexibility and opportunities for H-1B and other highly-skilled non-immigrants to overcome unconscionably long visa backlogs, for these talented persons to more fully and freely participate in the American economy and in the American Dream.

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