Regulation improving job portability for high-skilled foreign workers awaits final approval

IMPACT – HIGH

A regulation that contains provisions allowing greater flexibility for high-skilled foreign workers is awaiting approval by the Office of Management and Budget before a final version is published.

The proposed rule provides significant reforms to job portability for employees who have an approved employment-based immigrant visa petition during the wait for a green card.

Key proposed provisions:

• An individual with an immigrant petition (I-140) that has been approved for 180 days or more will not have the petition automatically revoked if the employer withdraws it or goes out of business. Although the I-140 remains valid, the individual would need a new job offer or new petition in order to apply for a green card.

• High-skilled employees who lose their job will be given a one-time grace period of 60 days to seek new employment. This provision would apply to the following categories: E-1, E-2, E-3, H-1B, H-1B1, L-1 and TN nonimmigrant status. The 10-day grace periods currently available to H-1B workers would also be extended to other nonimmigrant classifications.

• Individuals in certain visa categories who are unable to obtain an immigrant visa due to numerical limits and who face compelling circumstances would become eligible to apply for an employment authorization document (EAD). This provision would apply to individuals in E-3, H-1B, H-1B1, L-1 or O-1 status. Examples of “compelling circumstances” include serious illness or disabilities, employer retaliation, other substantial harm to the applicant, or significant disruption to the employer.

• Certain individuals may obtain automatic EAD extensions for up to 180 days, if they have timely applied to renew the EAD and maintain the same basis for employment authorization, which does not require adjudication of an underlying application.

Background: The proposed regulation contains long-awaited reforms that allow greater job portability for high-skilled foreign workers and proposes significant policy changes that will affect foreign workers present in the U.S. on nonimmigrant visas or seeking to obtain employment-based green cards.

The regulation implements the American Competitiveness in the 21st Century Act and codifies much of the previous informal guidance by the Department of Homeland Security. The agency proposed the regulation in December and received nearly 28,000 comments on the proposal during the public comment period that ended Feb. 29.

BAL Analysis: The proposed regulation is not effective yet, but is in the final stages of approval. The agency was required to consider the comments submitted by members of the public in finalizing the rule and may have made changes to the proposal. If finalized as proposed, the regulation would be a significant development and would have far-reaching implications for foreign workers in the U.S. on nonimmigrant visas.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@bal.com.

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