DHS Publishes Major Regulation on High Skilled Foreign Workers

January 4th, 2016

On December 31, 2015, the Department of Homeland Security (DHS) published a massive proposed regulation addressing both nonimmigrant working visa categories and green card sponsorship by employers. Comments on the proposal must be filed within 60 days.

DHS refers to the proposal as “Improvements Affecting High-Skilled Nonimmigrant Workers.” While the proposed regulation does contain some positive changes, there are other provisions that will be a step backwards from current practice (i.e., some EAD processing) or will fall far short of the promises made by President Obama in his November 2014 announcement on Executive Action on business immigration.

Job Portability for Certain Adjustment of Status Applicants

Under existing law when a foreign national has an approved immigrant visa petition and an adjustment of status application that has been pending for more than 180 days they may change jobs or even employers so long as the new position is the “same or similar” to the position for which an immigrant visa petition was previously approved.

The proposed regulation provides that an immigrant visa petition for EB-1 (but not “extraordinary ability”), EB-2, or EB-3 remains valid if the petition is approved and either:

  • The employment offer from the petitioning employer is continuing and remains bona fide; or
  • The beneficiary has a new offer of employment in the same or a similar occupational classification as the employment offer listed in the approved petition, the application for adjustment of status based on this petition has been pending for 180 days or more, and the approval of the petition has not been revoked. A new offer of employment may be from the petitioning employer, from a different U.S. employer, or based on self-employment.

A new supplementary form to the application for adjustment of status (Form I-485) will assist the Department in adjudicating “same or similar.” There is no fee attached to the supplement but DHS may consider a fee in the future.

The proposed regulation contains the following language modestly expanding the current DHS interpretation of “same or similar”:

The term “same occupational classification” means an occupation that resembles in every relevant respect the occupation for which the underlying employment-based immigrant visa petition was approved. The term “similar occupational classification” means an occupation that shares essential qualities or has a marked resemblance or likeness with the occupation for which the underlying employment-based visa petition was approved.

Note: The proposed regulation does NOT expand portability to those foreign nationals who are the beneficiary of an approved I-140 immigrant visa petition but who do not have an I-485 application for adjustment of status that has been pending for more than 180 days. For both employers and foreign national employees, this is the most disappointing aspect of the proposed regulation. The proposed regulation does not change the existing requirement that a new PERM labor certification and I-140 immigrant visa petition must be approved for any material change in job duties.

Retention of Priority Dates

The proposal clarifies that the priority date of a properly filed employment-based immigrant visa petition that does not require a labor certification is the date the completed, signed petition is properly filed with DHS.

The priority date in an EB-1, EB-2, or EB-3 petition may be used for a subsequently filed EB-1, EB-2 or EB-3 petition, unless USCIS denies the petition (or otherwise fails to approve it) or revokes the petition’s approval due to: (1) fraud or a willful misrepresentation of a material fact; (2) a determination that the petition was approved in error; or (3) revocation or invalidation of the labor certification associated with the petition.

Note: If the prior I-140 petition can be revoked by DHS if they determine the earlier petition was approved in error then uncertainty will continue on the ability of foreign nationals to recapture an earlier priority date.

Changes to Rules on Revocation of Approved Immigrant Visa Petitions

The proposed rule also provides that EB-1, EB-2, and EB-3 immigrant visa petitions that have been approved for 180 days or more would no longer be automatically revoked based only on withdrawal by the petitioner or termination of the petitioner’s business. As long as the approval has not been revoked for fraud, material misrepresentation, the invalidation or revocation of a labor certification, or USCIS error, the petition will generally continue to be valid for various purposes including: (1) the retention of priority dates; (2) job portability, and (3) extensions of status.

Exception to 6-year maximum stay rule for certain H-1B nonimmigrants

The proposed regulation implements current agency guidance and authorizes approval of H-1B status beyond 6 years, in 3-year increments, until USCIS adjudicates the adjustment of status application, for beneficiaries of approved EB-1, EB-2, and EB-3 petitions who can demonstrate that an immigrant visa is not available at the time the H-1B petition is filed because the immigrant visa classification sought is already over-subscribed. This applies only to the principal beneficiary and not any dependents who may also be in H-1B status.

The proposed regulation implements current agency guidance and authorizes approval of H-1B status beyond 6 years, in 1-year increments, for certain H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status if 365 days or more have passed since the filing of a labor certification application or employment-based immigrant visa petition. Extensions are generally available until a final decision is made to grant or deny the labor certification application or immigrant visa petition, or to grant or deny permanent resident status.

Licensure

Under the proposed regulation, DHS may approve an H-1B petition for a 1-year validity period if a state or local license to engage in the relevant occupation is required and the appropriate licensing authority will not grant such license absent evidence that the beneficiary has been issued a social security number or granted employment authorization. A beneficiary who has been approved for a 1-year validity period may not obtain an extension of H-1B status without proof of licensure.

H-1B Cap Exemption Provisions

The proposed regulation implements current agency guidance and codifies which

H-1B nonimmigrants are exempt from the cap if they are employed directly by: (a) an institution of higher education, (b) a nonprofit entity related to or affiliated with such an institution, (c) a nonprofit research organization, or (d) a governmental research organization.

Miscellaneous H-1B Provisions

The proposed regulation implements current agency guidance and authorizes:

  • H-1B nonimmigrants who are beneficiaries of new H-1B petitions seeking an amendment or extension of their stay in H-1B status to commence new or concurrent employment upon the filing of a non-frivolous H-1B petition.
  • H-1B beneficiaries to recapture time spent outside the United States during the validity of an H-1B petition.

Grace Periods

The proposed rule provides a 10-day grace period (similar to that which is currently extended to H-1B nonimmigrants) to individuals in E-1, E-2, E-3, L-1, and TN classifications and their dependents.

It also authorizes a one-time grace period, up to 60 days, curing the period of petition validity (or other authorized validity period) for E-1, E-2, E-3, H-1B, H-1B1, L-1, and TN nonimmigrants whose employment has ended. Such nonimmigrants may seek new employment, seek a change of status to a different nonimmigrant classification, or make preparations for departure from the United States.

Employment Authorization (EAD Cards) for Certain Employment-Based Nonimmigrants

The proposed regulation permits one year of employment authorization for an individual who: (1) is currently in the U.S. in valid E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status; (2) is the beneficiary of an approved EB-1, EB-2 or EB-3 immigrant visa petition; (3) does not have an immigrant visa number immediately available under the quota; and (4) can demonstrate compelling circumstances that justify an independent grant of employment authorization.

A limited number of individuals will be able to demonstrate compelling circumstances justifying an independent grant of employment authorization. The fact that the individual is approaching or has reached the statutory maximum period of time in nonimmigrant status is not deemed to be compelling. Employment authorization generally would not be available if the tendered compelling circumstances are within the individual’s control.

The proposed regulation does not define “compelling circumstances” in order to “retain flexibility” but DHS has identified four circumstances in which it may consider granting employment authorization under the proposed change:

  • Serious Illnesses and Disabilities. The nonimmigrant or his or her dependent is facing a serious illness or disability that entails moving to a different geographic area for treatment or otherwise substantially changing his or her employment circumstances.
  • Employer Retaliation. The nonimmigrant is involved in a dispute regarding the employer’s illegal or dishonest activity as evidenced by, for example, a complaint filed with a relevant government agency or court, and the employer has taken retaliatory action.
  • Other Substantial Harm to the Applicant. Due to compelling circumstances, the nonimmigrant is unable to timely extend or otherwise maintain status, or obtain another nonimmigrant status, and absent continued employment authorization under this proposal the applicant and his or her family would suffer substantial harm.
  • Significant Disruption to the Employer. Due to compelling circumstances, the nonimmigrant is unexpectedly unable to timely extend or change status, there are no other possible avenues for the immediate employment of such worker with that employer, and the worker’s departure would cause the petitioning employer substantial disruption to a project for which the worker is a critical employee.

The one-year EAD card can be renewed only if the individual can show that he or she continues to be the principal beneficiary of an approved EB-1, EB-2 or EB-3 immigrant visa petition and either: (1) the worker continues to face compelling circumstances; or (2) the worker has a priority date that is less than one year from the current cut-off date for the relevant employment-based category and country of nationality in the most recent Visa Bulletin.

The proposal prohibits employment authorization (initial or renewal) if at the time of filing the EAD application, the beneficiary’s priority date is more than 1 year beyond the date on which immigrant visa numbers were authorized to be issued to individuals with the same priority date for the relevant employment-based category and country of nationality. The proposal also prohibits employment authorization if the applicant has been convicted of a felony or two misdemeanors.

The proposal requires biometrics and payment of biometrics fee. Also, it extends employment authorization eligibility to those dependent spouses and children who are also present in the United States in nonimmigrant status, but only if the principal spouse or parent is granted employment authorization under this rule and such authorization has not been terminated or revoked.

Note: Obtaining an EAD under this provision would require relinquishment of nonimmigrant status, thus restricting the ability to change status in the future. Also, the proposal does NOT provide the blanket EAD eligibility for all those with an approved I-140 immigrant visa petition that many immigrant advocates had hoped for.

Employment Authorization (EAD Card) Adjudication

 The proposed regulation authorizes an automatic 180 day extension of EAD of employment authorization if:

  • The individual files a request to renew his or her EAD prior to the expiration date.
  • The individual is requesting renewal based on the same employment authorization category under which the expiring EAD was granted, or the individual has been approved for Temporary Protected Status.
  • The individual either continues to be employment authorized incident to status beyond the expiration of the EAD or is applying for renewal under a category that does not first require adjudication of an underlying application, petition, or request.

The 180-day extension is automatically terminated upon issuance of a decision denying the individual’s renewal application, upon written notice to the applicant, notice published in the Federal Register, or any other applicable authority.

The expired EAD, in combination with a Notice of Action (Form I-797C) indicating timely filing of the renewal EAD application would be considered an unexpired EAD for purposes of complying with Employment Eligibility Verification (Form I-9) requirements.

The proposal removes the current regulatory requirement that DHS complete the adjudication of EAD applications within 90 days of receipt and the requirement that it issue interim EADs with validity periods of up to 240 days when such an application is not adjudicated within the 90-day period.

DHS will instead address processing timeframes through operational policy guidance that reinforces the Department’s continued commitment to a 90-day processing timeframe and provides recourse to individuals whose case is nearing the 90-day mark, including the ability to contact USCIS to request prioritized processing.

Note: DHS cannot process EAD applications in a timely basis and their approach to “fixing” the problem is to remove the 90-day mandate and treat EAD extension applications like H-1B extensions for I-9 purposes. This should work for those seeking an EAD extension but is likely bad news for those filing an initial EAD application such as newly arrived L-2 spouses.

Comment » | Department of Homeland Security, H-1B, I-129, I-140, I-485

Congress Reaches Deal on 2016 Omnibus Bill; Bill Contains Reforms to Visa Waiver Program, Extension of Four Popular Immigration Programs

December 18th, 2015

On December 15, Congress reached a deal on the FY2016 Omnibus Appropriations Bill, which funds the federal government through September 30, 2016. Congress is expected to vote on the bill later this week. The bill contains significant changes to the Visa Waiver Program (VWP) that are contained in HR 158, the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, passed by the House of Representatives earlier in the month in the aftermath of the recent terrorist attacks in Paris and San Bernardino. The Omnibus Spending Bill also extends the EB-5, Conrad 30, Special Immigrant Religious Workers, and E-Verify programs through the end of FY2016, however, without any reforms. It does not, however, include proposals to end the resettlement of Syrian and Iraqi refugees.

The Visa Waiver Program Improvement Act, now part of the 2016 Omnibus Bill, revokes VWP travel privileges for all citizens of VWP countries who are dual nationals of Iraq, Syria, Iran, or Sudan. This revocation of VWP privileges would apply to all nationals of Iraq, Syria, Iran, or Sudan even if they have never resided in or traveled to any of these four countries. Because these countries confer citizenship through naturalization, marriage, or descent, many individuals will be barred from using the program, even if they have never been to Iraq, Syria, Iran, or Sudan. Some examples include:

  • Dual-national French citizen (born to Syrian father) traveling to U.S. for business conferences and meetings;
  • Dual-national German citizen (born to Iranian father) traveling to U.S. on vacation;
  • Dual-national British citizen (born to Syrian father) traveling to the U.S. to take care of grandchild.

VWP travel privileges are also terminated for all who have been present in Iraq, Syria, Iran, or Sudan at any time on or after March 1, 2011. There is a very narrow exception for certain military personnel and government officials. All other travelers would automatically lose their VWP privileges. Affected travelers would include scholars, refugee caseworkers, humanitarian aid workers, human rights investigators, and others.

New passport requirements are also incorporated into the bill. Starting April 1, 2016, VWP travelers will be required to use electronic passports that are machine-readable and fraud resistant. The program country will also be required to validate these passports.

Comment » | Department of Homeland Security, Department of State, Visa waiver program

More Delays for Executive Action on Immigration Reform

December 16th, 2015

On Nov. 20, 2014, President Obama announced a series of executive actions that would affect undocumented immigrants in the United States. The new Deferred Action for Parental Accountability program and the expansion of the Deferred Action for Childhood Arrivals (DACA) program garnered the most attention.

DACA aims to protect children who entered the U.S. before the age of 16 and who have lived in the country continuously since at least Jan. 1, 2010. Likewise, DAPA protects the parents of children who are citizens or lawful permanent residents. These programs are not intended as fast tracks to citizenship, though; qualified individuals must reapply every three years.

It’s been a year since President Obama’s announcement, and it seems there has not been much progress in moving forward with these plans.

Shortly after Obama’s announcement, several states took legal action to counteract these measures. A Texas federal judge blocked the measures, arguing that since some details were not published in the Federal Register, there was no allowance for public comments. Meanwhile, similar actions taken by other states and lower courts, similar to that of Texas, prompted the Obama Administration to appeal to the Supreme Court in November 2015.

As a result, many of the related programs haven’t been enacted or expanded, which may raise the possibility of deportation for many.

Since Obama’s initial announcement, the conversation regarding undocumented immigration has become more hostile among certain pockets of the population. As presidential hopeful Donald Trump gains support with his anti-immigrant language, many pro-reform activists now stress the urgency of voter registration and participation.

Meanwhile, Supreme Court review could be delayed until after President Obama leaves the White House. To keep reform moving in the meantime, immigration supporters and activists are working to gather support and register voters, encouraging them to vote in the upcoming primary elections., Activists are relying on a heavy turnout of immigrant voters in both the primaries and the general election to elect pro-reform candidates

Whether these actions take effect while President Obama is in office or after his presidency, activists and supporters will keep pushing for reform on all levels. Even so, we know that comprehensive immigration reform would ultimately resolve the shortcomings posed by smaller reforms like DAPA and DACA. Given the current political environment, the earliest that could happen is 2017 after the Presidential election.

Comment » | Immigration reform

Ryan’s Reform Ruling

November 23rd, 2015

On Nov. 1, newly elected House Speaker Paul Ryan ruled out overhauling U.S. immigration policies while President Obama is still in office. Ryan claimed that the president cannot be trusted on this issue, as he has bypassed Congress with an executive order shielding millions of undocumented immigrants from deportation. This executive order includes the Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parental Accountability (DAPA) programs. These programs would allow eligible undocumented immigrants to receive permits to temporarily stay in the U.S.

Another program effective in the summer of 2015 – called the Priority Enforcement Program, or PEP — prioritizes some groups of undocumented immigrants for deportation. Convicted felons would be deported as a first priority, followed by those with serious misdemeanors and/or unlawful entry or re-entry. Finally, those with a removal order issued after Jan. 1, 2014 would make up the third, or lowest, priority. This revises Obama’s immigration policy proposed in November 2014.

Of the 11 million undocumented immigrants currently in the U.S., about 2 million are now categorized into one of these priority groups. The other 9.6 million immigrants are not currently seen as targets for immigration enforcement, which may improve their relationships with local law enforcement officers who are now less inclined to target them for deportation.

Many Sanctuary Cities rely on this lack of deportation to enable cooperation between undocumented immigrants and local law enforcement.

Lacking comprehensive immigration reform, many U.S. states are starting to implement their own state-based reforms – and they’re beginning to see positive results, according to Latin Post . States are experimenting with ways to bring these immigrants into the economy, aiming to benefit not only the immigrants themselves but also the state economies.

In terms of state-level reform, 12 states have allowed undocumented immigrants to obtain driver’s licenses, trying to improve road safety while generating revenue from permit fees. New Jersey is discussing such a program, and projects netting between $5.2 million and $9.5 million in the first three years.

These state reforms demonstrate that making strides to incorporate undocumented immigrants can benefit the economy as a whole. Whether that means expanding driver’s licenses or ensuring immigrants are paid the minimum wage, states are seeing success with these programs. Politicians like Paul Ryan must take these successes into account when discussing the need for comprehensive immigration reform, as doing so can benefit local, state and national economies — and constituents. Pandering to the anti-immigrant restrictionists is not a policy solution. It is cowardice.

Comment » | Immigration reform

The War on Sanctuary Cities

November 3rd, 2015

On Oct. 20, the Senate voted to block a bill that would remove protections from illegal immigrants in cities where local police do not actively enforce immigration laws.

Senator David Vitter (R-LA) penned the “Stop Sanctuary Policies and Protect Americans Act” (S. 2146), gaining support varied support. The bill aims to remove millions of dollars in funding from sanctuary cities for not complying with Immigration and Customs Enforcement (ICE) detainer requests. Sanctuary cities generally restrict local law enforcement from complying with federal immigration laws.

The term “sanctuary city” came about in the 1980s when thousands of Central American refugees came to the U.S. to escape civil wars in their respective home countries, and were denied asylum upon their arrival. Several different religious institutions came together in the Sanctuary Movement to help protect refugees from deportation.

Some of the funding in question directly impacts programs designed to strengthen communities, such as the Community Development Block Grant (CDBG) and Community Oriented Policing Services (COPS). While sanctuary cities do not technically shield individuals from immigration authorities, they do improve community safety by empowering illegal immigrants to work with police without fear of deportation.

A number of Republicans, including presidential hopeful Ted Cruz, advocated for passing S. 2146, arguing that undocumented immigrants pose a safety risk for American citizens and communities.

Our country desperately needs comprehensive immigration reform that goes beyond partial fixes like S. 2146. While enough senators disagree with the bill to block it, they continue to ignore the underlying issue.

We have learned about the positive impact that H1-B visa holders bring to the U.S. economy, and reports show that these sanctuary cities are safer than believed by supporters of the bill. The only way to fully address the issues is through a more comprehensive approach to immigration reform.

Comment » | Immigration reform

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