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DHS Amends Proposed Rule for Visa Employment Programs of Immigrant and Nonimmigrant Workers

tie-690084_640In December 2015, the United States Citizenship and Immigration Services (USCIS) announced a set of proposed regulations on the Federal Register, which allowed the Department of Homeland Security (DHS) to boost job portability for skilled immigrants.

It also sought to clarify a number of issues that affect foreign nationals who have entered, or are attempting to enter, the United States through employment-based nonimmigrant visa categories such as the H-1B visa program.

The proposed rule immediately became a hot topic of discussion, drawing around 28,000 comments. Most recently, the regulation was submitted to the Office of Management and Budget for final review on October 24, 2016.

DHS Makes Amendments to Rule

The DHS has made a number of updates to the proposed rule, primarily affecting the following areas:

  • The updates to the rule are focused on helping employers in the United States to hire and keep certain foreign national employees who are also the beneficiaries of employment-based visa holders sponsored by employers.
  • The amended rule also affects foreign national employees ‘stuck’ in visa number availability backlogs caused by the of the Department of State’s Visa Bulletin and USCIS’s eligibility rules for Adjustment of Status.
  • The rule highlights the goal of helping foreign national employees seek:
    • Promotions
    • Transfers to lateral positions
    • Shifts between employers
    • Different employment options
  • The rule also seeks to streamline the visa application process and improve portability through the following:
    • Restricting the grounds for automatic revocation of immigrant visa petitions
    • Improving the ability of beneficiaries to EB-1, EB-2 or EB-3 petitions to keep their priority dates
  • In addition, the rule would now improve non-immigrant job portability, helping workers under the different employment-based visa programs (such as E-1, E-2, E-3, H-1B, H-1B1, L-1, and TN) by creating a 60-day grace period (one-time) after the end of employment.
  • The new rule would also allow the DHS to automatically extend the validity Employment Authorization Documents by as much 180 days, provided that certain renewal applications are fulfilled.

Clarification on Job Termination and Impact on Subsequent Job Prospects

Most importantly, the rule provides clear employment options for foreign national employees after job termination. The rule also offers increased flexibility for immigrant and nonimmigrant employees, allowing them to pursue new employment and seek new classification under nonimmigrant status. The DHS plans to provide a grace period on a case-to-case basis.

The Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) will now review the proposed regulations before they are published. The review period will last no longer than 90 days, but may also be extended if necessary.

If you or a loved one is seeking entry into the United States through an employment-based visa program for immigrants and nonimmigrants, sit down for a consultation with the legal team of Lyttle Law Firm. Find out how we can help you by calling our offices today at (512) 215.5225.