The Department of Homeland Security [DHS] is proposing employment-based immigration regulations to make life easier for highly-skilled immigrants and their employers in the US. The proposed regulations come in response to directives given by US President, Barack Obama, in November 2014 as part of Obama's executive actions on immigration reform. People who may benefit from the proposed changes are those on temporary work visas waiting for a green card.
The DHS says that the proposed changes are 'intended to better facilitate US employers to recruit and retain highly-skilled workers who have benefitted from employment-based immigration visa petitions, while increasing the ability of such workers to advance their careers by accepting promotions, changing positions with current employers, changing employers, and pursuing other employment opportunities.'
Many Employment-based immigration changes will have 'no practical effect'
However, the DHS was quick to specify that the majority of employment-based immigration changes being proposed would simply bring structure to current practices. Many of the proposed changes will actually have no practical effect whatsoever, according to the National Law Review – an online news source published by a group of in-house attorneys.
The National Law Review states that even the most significant change of them all, relating to work authorization for certain individuals with approved I-140s, will have very little impact practically.
- Organising and clarifying:
- The circumstances under which you can obtain an extension of an H-1B visa beyond the maximum six-year stay.
- When an H-1B non-immigrant can switch jobs or employers without it affecting his or her approved immigrant visa petition.
- How to calculate H-1B recapture time [days outside the US that do not count towards the maximum six-year stay].
- Those businesses that qualify as H-1B 'cap-exempt' employers. This is important as in recent years the H-1B visa quota is massively oversubscribed within a few days of the quota becoming available at the beginning of April each year.
- Providing a one-off 60-day grace period, for persons in E-1, E-2, E-3, H-1B or L-1 status allowing the visa holder to remain in the US when employment ends as a result of voluntary or involuntary termination or redundancy. Persons will not be permitted to work during the 60-day grace period.
- An extension of the 10-day grace period granted prior to and after H-1B status to also include persons in E-1, E-2, E-3 or L-1 status. You will not be allowed to work during the 10-day grace period. If you are on these employment related visas you also benefit from the 60 day grace period on a one time basis.
- If you can show compelling circumstances you should be able to obtain a one-year Employment Authorization Documents (EAD) if you are on E-3, H-1B, H-1B1, L-1 or O-1 visa status with an approved I-140 visa petition but are unable to complete processing of your immigrant petition as there are no visa numbers available. It is not certain what is meant by compelling circumstances; DHS includes examples, such as serious illnesses and disabilities. If you work with an EAD in these circumstances then it will be considered to be the case that you are no longer on a non-immigrant work visa and when visa numbers are available will need to apply for an immigrant visa from outside the US. If you have an EAD your spouse and children may also be able to apply for an EAD. Extensions to the EAD may be possible.
- Removing the 90-day processing time required by United States Citizenship and Immigration Services (USCIS) for Employment Authorization Documents (EADs), automatically extending most EADs 180 days beyond the expiration if the extension was filed in good time.
These changes should lead to more temporary skilled workers being able to live and work in the US while waiting for their green cards and enable certain others to remain in the US for longer.
In the DHS proposal, it was noted that the current immigration rules are essentially undermining the very purpose of the employment-based immigrant visa system. An excerpt from the proposal document read: 'By restricting productivity and the promise they offer to our nation's economy, as many workers in the immigrant visa process are not free to consider all available employment and career development opportunities. The amendments will work towards fixing these issues.
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