NPZ Immigration Law Blog

 By: Michael Phulwani, Esq., David H. Nachman, Esq. and Rabindra K. Singh, Esq.

Introduction.

Acknowledging the need of the U.S. businesses to hire and retain highly-skilled foreign-born U.S. workers, especially from India and China, who remain stuck with the same employer for years in order to obtain an employment-based green card, 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 to engage in natural career advancements. DHS is expected to release the proposed rule during the first quarter of its New Fiscal Year starting on October 1, 2015.

Sources of Prediction.

A glimpse of this proposed rule was alluded to in the Memorandum released by the DHS Director, Jeh Johnson, to United States and Citizenship Services (USCIS) Director, Leon Rodriguez, following the President Obama’s announcement of executive action on November 20, 2014. Taking into consideration that the employment-based immigration system is afflicted with extremely long wait for green cards due to relatively low green card numerical limits established by Congress 25 years ago, the Memorandum directed the USCIS Director to take several steps to modernize and improve the immigrant visa process.

Among other things, the Memorandum 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]

Though Mr. Johnson’s Memorandum built upon the hope created by President’s announcement(s), it lacked the specificity and clarity as to what kind of regulation and/or policy changes USCIS should implement; when the regulations and/or policy changes would be implemented; how the terms such as “long-standing” and “certain cases” are going to defined, etc.

After waiting for six (6) months, the generic and fluid wordings in Jeh 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 proposing to allow beneficiaries of certain approved I-140 Petitions to obtain work authorization, clarify portability, and provide relief to workers facing lengthy adjustment delays. Specifically, the regulatory agenda states 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. [emphasis supplied]

As soon as the DHS regulatory agenda was published, the chat rooms discussing the anticipated proposed rulemaking were flooded with comments. Indian and Chinese foreign-born workers in the United States, who have been waiting for years (and some for decades), began speculating about when USCIS will publish the much awaited proposed rule, how much time it will take for the proposed rule to become effective, who will qualify under certain approved Immigrant Petition for Alien Worker (Form 1-140), etc.

Fast forward to July 2015, the White House released a report, Modernizing and Streamlining Our Legal Immigration System for the 21st Century, which 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 report laid down the recommendations regarding employment-based visa issuance. Although, this 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.

Deciphering the Developments & Future Predictions.

Based on the developments so far, it is safe to predict that DHS, most likely in the first quarter of its New Fiscal Year, starting on October 1, 2015, will announce a proposed rule that will enable certain foreign nationals, specifically those having an I-140 Petitions approved for more than a year, to obtain work authorization. Also, it is not out of the line to predict that the proposed regulation will likely allow foreign-born workers waiting for employment-based green cards to change jobs and receive promotions by defining the term “same or similar” post I-140 Petition approval stage. Thus, the flexibility of changing jobs provided to the foreign workers post submission, and wait of 180 days, of Adjustment of Status Applications (Form I-485) under the American Competitiveness in the Twenty-First Century Act (AC-21) is likely to be expanded and conferred upon those beneficiaries whose I-140 Petition remained approved for more than a year.

Last but not the least, it could also be the case that 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 employer who had sponsored him/her for the green card 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 United States to completely escape the time-intensive and employer-dependent Labor Certification process, and the submission of I-140 Petition without losing their spot in the green card line.

Of course, it is always difficult to look into the crystal ball and see the future. However, given the information that has been provided to the public with regard to these initiatives, it continues to be our hope that individuals who have waited many years to be able to have their green cards will be afforded the opportunity to take advantage of job flexibility.