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