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NPZ Immigration Law Blog

Wednesday, November 25, 2015

UPDATE: EADS & ACCEPTING JOB PROMOTIONS POST I-140 APPROVAL IS SOON GOING TO BE A REALTY.

In August 2015, we had indicated through one of our Articles, KEEP HOPES ALIVE: EADS & ACCEPTING JOB PROMOTIONS AFTER AN I-140 APPROVAL IS SOON GOING TO BE A REALITY, that the Department of Homeland Security (DHS) is working on a proposed rule that will allow certain Beneficiaries of an approved Immigrant Petition for Alien Worker (Form I-140) to obtain an Employment Authorization Document (EAD), and also permit them to engage in natural career advancements by accepting job promotions. We had also projected that the proposed rule, or Notice of Proposed Rule Making (NPRM) was likely to be released during the First Quarter of DHS’ New Fiscal Year, which commenced on October 1st, 2015.

As projected earlier by us, allowing minor deviations, it is highly likely that the proposed rule or NPRM is going to be published in the Federal Register for Notice and Comment in next 60 to 90 days.

This next level of projection is based on two specific developments. First, on November 5th, 2015, providing an update on the implementation of President Obama’s Executive Action announced last year, DHS Secretary, Jeh Johnson, during USCIS’ Ombudsman Fifth (5th ) Annual Conference in Washington, D.C., confirmed that the “DHS is working on a proposed regulation and guidance to support high-skilled businesses and workers by enabling these businesses to hire and retain talented foreign workers while providing these workers with increased flexibility to advance with current employers or seek new opportunities elsewhere.”

In addition, the submission of a proposed draft rule: “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting Highly-Skilled H-1B Alien Workers”, on November 19th, 2015, by the DHS/USCIS to the Office of Information and Regulatory Affairs (OIRA) for review confirms our above-stated projection. As many are aware, OIRA is a part of the Office of Management and Budget (OMB) within the Executive Office of the President. OIRA is the United States Government’s central authority for the review of Executive Branch regulations. Because the proposed rule is categorized as a “Major Rule” and prioritized as “Other Significant”, OIRA also need to review the costs and benefits associated with the proposed rule, along with considering other alternative benefits and policy issues.

It can deciphered through the “Title ” and the analysis of the “Statement of Need” and “Summary of Legal Basis” that the broad framework of the proposed rule will encompass what was stated by Secretary Johnson in his November 20th, 2014, Memorandum; and the Regulatory Agenda published by DHS earlier. The proposed rule is also likely to include the recommendations regarding employment-based visa issuance contained in the White House report, Modernizing and Streamlining Our Legal Immigration System for the 21st Century, released earlier in July 2015. Note, however, that the proposed rule only refers to Highly-Skilled H-1B Alien Workers.

As many will recall, through his November 2014 Memorandum, Secretary Johnson specifically directed the USCIS Director to:

“…[C]arefully consider other regulatory or policy changes to better assist and provide stability to the beneficiaries of approved employment-based immigrant visa petitions. Specifically, USCIS should consider amending its regulations to ensure that approved, long-standing visa petitions remain valid in certain cases where they seek to change jobs or employers.” [emphasis supplied]

After waiting for six (6) months, the generic and fluid wordings in Secretary Johnson’s Memorandum became somewhat crystallized when the “Employment-Based Immigration Modernization” proposed rulemaking was added to the DHS’ Regulatory Agenda. The Regulatory Agenda stated that the DHS is now proposing to allow beneficiaries of certain approved I-140 Petitions to obtain work authorization, clarify portability, and provide relief to certain workers facing lengthy adjustment delays. Specifically, the Regulatory Agenda stated that:

“The Department of Homeland Security (DHS) is proposing to modernize the immigrant visa system by amending its regulations governing the adjustment of status process and employment-based immigration. Through this rule, DHS proposes to allow “certain” approved Immigrant Petition for Alien Worker (Form 1-140) beneficiaries to obtain work authorization, clarify the meaning of portable work authorization, and remove unnecessary restrictions on the ability to change jobs or progress in careers, as well as provide relief to workers facing lengthy adjustment delays.

Fast forward to July 2015, White House released a report, Modernizing and Streamlining Our Legal Immigration System for the 21st Century. This Report included a snapshot of new actions that the federal agencies will be taking to improve the visa experience for families, workers, employers, and people in need of humanitarian relief.

Among other things, this White House Report laid down the recommendations regarding employment-based visa issuance. Although, the Report did not lay down all the specifics, it added another layer of hope by specifically stating that the DHS intends to publish a regulation which would allow foreign workers waiting for Green Cards to change jobs and receive promotions by clarifying the meaning of “same or similar” to the job that was the original basis for permanent employment. Further, the report clarified that the proposed rule would enable individuals whose employment-sponsored immigrant visa petitions have been approved for more than a year to “retain” eligibility for LPR (Green Card) status despite the petitioning employer closing its business or seeking to withdraw the approved petition.

Thus, based on the limited preview of the proposed rule currently available, in all probability, it will allow “certain” Beneficiaries, who are in a valid H-1B nonimmigrant status, and who have an approved Form 1-140 to obtain an EAD. This rule will also provide for removing the unnecessary restrictions on the ability to change jobs or accept promotions.

It is also expected that the USCIS will amend its regulations to ensure that approved, long-standing visa petitions remain valid in certain cases where Beneficiaries seek to change jobs or employers. Specifically, the proposed rule is expected to enable individuals whose employment-sponsored immigrant visa petitions have been approved for more than a year to “retain” eligibility for LPR (Green Card) status despite the petitioning employer closing its business or seeking to withdraw the approved I-140 petition.

Thus, if proposed and implemented, the foreign-born workers, who had an I-140 petition approved for more than a year, will not be forced to start the employment-based Green Card petition all over again after making a job switch from the Green Card sponsoring employer to another employer. In simple terms, having an I-140 petition approved for more than a year will allow the foreign-born workers in the U.S. to completely escape the time-intensive and employer-dependent Labor Certification process, and the submission of Form I-140 again to USCIS in case they decide to move on from the Green Card sponsoring employer to another employer in the United States.
Of course, it is always difficult to look into the crystal ball. However, given the information that has been provided to the public, and based on the recent developments, it continues to be our hope that individuals who have waited many years to be able to have their Green Cards will soon be afforded the opportunity to take advantage of job flexibility and accepting job promotions.


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