DHS Proposes Expansive Rule Addressing Immigrant & Non-immigrant Employment-Based Categories

In the last Federal Register edition of 2015, the Department of Homeland Security ("DHS") proposed substantial revisions and additions to its rules governing employment-based immigrant and non-immigrant categories. Many of the proposed provisions incorporate and clarify statutory provisions enacted by Congress over a decade ago, while others seek to insulate employers and foreign nationals from recent systemic delays in adjudication at USCIS. 

The extensive proposal promises to "provide various benefits to participants in those programs, including: improved processes for U.S. employers seeking to sponsor and retain immigrant and non-immigrant workers, greater stability and job flexibility for such workers, and increased transparency and consistency in the application of agency policy related to affected classifications."  Several of the specific changes sought in the proposed regulations include:

  • Enabling certain high-skilled, non-immigrant workers with approved I-140 petitions to apply for separate employment authorization for a limited period if there are compelling circumstances for doing so.  In the proposed regulations DHS does not define "compelling circumstances" but does cite four examples, including significant disruption to the employer, serious illness and disabilities, employer retaliation, or other substantial harm to the applicant;
  • Implementing a one-time 60 day grace period for E-1, E-2, E-3, H-1B, L-1 and TN non-immigrants upon cessation of employment (whether the employment ends voluntarily or the foreign national has been laid off or terminated);
  • Automatically extending the validity of certain Employment Authorization Documents ("EADs") for up to 180 days upon timely filing applications to renew the existing EADs; and,
  • Eliminating the 90 day processing timeframe for EADs and the requirement for the issuance of interim EADs.

Iandoli Desai & Cronin P.C. will keep you informed of any updates and resulting final rules from these proposed regulations in 2016. To view the proposed revisions and submit public comments by February 29, 2016, visit https://federalregister.gov/a/2015-32666.