Law Office of Leila Freijy PLLC
Immigration & Compliance Law 
Proposed rule to improve employment-based immigrant & nonimmigrant visa programs.
On December 31, 2015, the USCIS announced that it is seeking public comments on a proposed rule that would modernize and improve certain aspects of the employment-based nonimmigrant and immigrant visa programs. USCIS is also proposing regulatory amendments to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents (LPRs).

The public has until February 29, 2016 to comment.

Among other things, the Department of Homeland Security (DHS) is proposing to amend its regulations in order to:
  • Clarify and improve longstanding agency policies and procedures implementing sections of the American Competitiveness in the Twenty-First Century Act (AC21) and the American Competitiveness and Workforce Improvement Act (ACWIA) related to certain foreign workers, which will enhance USCIS' consistency in adjudication.  The AC21 Act is the one that permits H-1B and I-485 portability as well as authorizing H-1B extensions beyond the 6th year for certain beneficiaries for whom U.S. Permanent Residence sponsorship has been initiated.
  • Better enable U.S. employers to employ and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions (I-140 petitions) while also providing stability and job flexibility to these workers. The proposed rule will increase the ability of such workers to further their careers by accepting promotions, making position changes with current employers, changing employers, and pursuing other employment opportunities.  In many cases, this would eliminate the necessity of re-doing U.S. Permanent Residence sponsorship if an employee changes jobs or changes employers.
  • Improve job portability for certain beneficiaries of approved I-140 petitions by limiting the grounds for automatic revocation of petition approval.
  • Clarify when individuals may keep their priority date to use when applying for adjustment of status to lawful permanent residence, including when USCIS has revoked the approval of their approved I 140 petitions because the employer withdrew the petition or because the employer's business shut down.
  • Allow certain high-skilled individuals in the United States in E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status to apply for one year of unrestricted employment authorization under very limited circumstances.  The benefits of this portion of the proposed rule are very limited in the proposed rule's current form.
  • Clarify various policies and procedures related to the adjudication adjudication of H-1B petitions, including, among other things, extensions of status, determining cap exemptions and counting workers under the H-1B visa cap, H-1B portability, licensure requirements, and protections for whistleblowers.
  • Establish a one-time grace period during an authorized validity period of up to 60 days for certain high-skilled nonimmigrant workers whenever their employment ends so that they may more readily pursue new employment and an extension of their nonimmigrant status.  In cases where H-1B employees are terminated by their current H-1B employers, this would provide them with a 60-day grace period to find another H-1B employer, rather than the informal 30-day grace period that currently exists.
These proposed changes do not take effect with the publication of the notice of proposed rulemaking. Instead, they would take effect on the date indicated in the final rule when the final rule is published in the Federal Register, a few months from now.

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Leila Freijy
Law Office of Leila Freijy PLLC