Much has already been said about proposed changes to DHS regulations related to certain employment-based immigrant and nonimmigrant visa programs, published on December 31, 2015. Much of what is being proposed is, in reality, no change at all. The DHS is simply amending its regulations consistent with provisions contained in the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) and the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA). Some would say this is 15-17 years overdue and they would not be wrong. However, DHS has been operating along the lines of the proposed changes for years already, governed by agency memos and interpretations, rather than regulations. So, the proposed new rules provide little change, but a bit more certainty. With few exceptions:
1. Nonimmigrant Grace Periods
DHS is proposing to extend the current grace period (period of time after validity of an approved petition ends, during which the foreign national employee may remain in the United States, but can not work) for H-1B nonimmigrant workers to other categories of nonimmigrant workers, such as E-1, E-2, E-3, L-1, and TN. The proposed change would allow these workers and their dependents to stay an extra 10 days in the United States beyond the validity period of their nonimmigrant worker petitions. Not very generous and not enough to either find new qualifying employment or get one’s affairs in order before departing the US, as DHS explains it, but better than nothing. A more important change and one sufficiently more helpful is the proposed introduction of a 60-day grace period for employees in the H-1B, H-1B1, E-1, E-2, E-3, L-1, and TN classifications that would allow workers in these nonimmigrant visa categories to find new employment or change status to another nonimmigrant classification, if they are terminated or otherwise lose employment while their original petition still remains valid. Under the current law, an H-1B nonimmigrant worker is considered to be “out of status” immediately upon termination of employment and therefore may not seek change or amendment of status, is generally subject to removal from the United States, and begins to accumulate a number of problems that are likely to affect his or her ability to travel to the United States in the future. If the new rules are enacted, then most nonimmigrant workers, including H-1B classification, would be able to remain lawfully in the United States and look for a new job or make arrangements for departure from the United States within the 60-day period. As proposed by DHS the 60-day grace period would only be afforded once and no employment authorization would be available during this period of time.
2. H-1B Licensing Requirements
Under the current policy, where beneficiary requires a state or local license to fully perform the duties of the position described in H-1B petition, DHS may approve H-1B petitions for one (1) year, provided that the only obstacle to obtaining a license is the lack of a social security number or employment authorization, the two factors most commonly preventing qualified foreign nationals from obtaining state licenses. DHS is proposing to formalize this policy into regulations. Petitioners would be required to a). submit evidence from the relevant licensing board indicating that the only obstacle to obtaining a license is the lack of a social security number or employment authorization, b). that the beneficiary meets all other regulatory and statutory, such as educational, training, experience, etc. requirements for obtaining a license, and c). that at the time of fling of H-1B petition, the beneficiary has already applied for the license, if feasible. H-1B petitions granted under this rule for one (1) year would not be eligible for extension unless beneficiary acquires license. A notable common sense exception is proposed to allow beneficiaries who practice in a state that allows an unlicensed individual to fully practice their craft under the supervision of a licensed senior or supervisory personnel.
3. Processing of Applications for Employment Authorization Documents (EADs, Form I-765)
This proposed change should create a lot of excitement for many punctuated with moments of terror for some. Let us explain: DHS proposes to automatically extend the validity of expiring Employment Authorization Documents (EADs) for up to 180 days from such document’s expiration date, if an application for extension of the same is timely filed (read filed before the current document expires). Considering that no automatic extension is currently provided, this should sound like a good thing. It’s not. It is sugar coating a very bitter pill. Let us explain further: DHS is proposing to simultaneously eliminate the current regulatory provisions that require the agency to adjudicate EAD applications within 90 days of filing and that authorize interim EADs in cases where EADs are not issued within 90 days. This means that a diligent employee filing an application to extend Employment Authorization Document at least 90 days before the expiration date of his or her current EAD would be reasonably assured along with his or her employer that the employee will be able to a). have his or her EAD application adjudicated within 90 days, or b). have an interim EAD issued, thus being able to continue to work without interruptions. Under the proposed rule, while a 180-day extension will be granted in most (but not all) employment categories, should DHS take longer than 180 days to adjudicate these applications, there will be recourse in the form of an interim EAD. So, if DHS takes longer than 180 days to adjudicate EAD extensions, employees and employers will be out of luck and out of options. Another issue is that DHS proposes that employers accept an expired EAD along with an I-797 Receipt Notice as proof of continued eligibility for I-9 compliance purposes. Needless to say, many employees will face difficulty explaining to their HR departments that an expired document along with a receipt notice sufficiently proves their employment eligibility.