The U.S. Department of Homeland Security (DHS) published a final rule on November 18, 2016, to assist U.S. employers in hiring and retaining high-skilled foreign workers as well as to protect and increase the ability of these foreign national employees to pursue new employment opportunities.
Many felt this regulation was required based upon the many hurdles both U.S. employers and/or foreign nationals face during the immigration process due to “green card” quota backlogs as well as other restrictions in U.S. immigration laws. This new regulation goes into effect on January 17, 2017.
Here is the part II of an analysis of the key provisions of the New Skilled Workers Regulation.
One provision enacted in the new regulation intends to help alleviate problems faced by some skilled workers who are in the process of applying for “green cards” but their sponsoring employer closes its business or decides to revoke its sponsorship of the foreign national.
The new rule allows a foreign national to retain the priority date of his 1-140 petition if it was approved more than 180 days before the closing of the business or revocation by the employer. The foreign national would still require a new employer to complete the green card sponsorship process, but this priority date retention should cut down on the waiting times for a visa to become available to these affected foreign nationals since their “place in line” will be retained.
Thus, these new regulations may encourage more filings of 1-140 petitions under premium processing since the approval of the 1-140 petition is required to establish and retain the earlier priority date.
This new regulation also reinforces the DHS’s longstanding “green card” portability provisions by creating a standard procedure for portability cases to ensure the USCIS has all required information and documentation in its possession prior to “green card” adjudication.
As with the prior procedure, applicants who have adjustment of status applications pending for more than 180 days may change “green card” sponsors if the proffered positions are the same or similar without starting the “green card” application from scratch (i.e., PERM, 1-140, and 1-485).
However, in order to request portability, a new supplement form “J” has been introduced. While this new Supplement “J” form will not require a separate USCIS filing fee, there are concerns on how long it will take the USCIS to adjudicate these sponsorship changes as well as the Service’s determination that the positions are the “same or similar.” Conversely, there is hope that by standardizing the portability process, quicker and more efficient determinations will be issued.
Another positive change will be the availability of Employment Authorization Documents (EAD’s) for those with approved 1-140 petitions who may not file for adjustment of status based on retrogressions in the immigrant visa quotas.
The catch here is that “compelling circumstances” must be proven along with the unavailability of an immigrant visa number. Although the regulations provide examples of “compelling circumstances,” our concern is that these are discretionary determinations and may not be liberally applied.
If approved, these “compelling circumstance” EAD’s will be issued in one year increments and renewals may be filed six months prior to expiration. “Compelling circumstances” need not be shown if there is less than one year between the priority date and the final action date. Unfortunately this new basis for an EAD is not available to E-1, E-2, F and J visa holders.
There will also now be an automatic extension for timely filed EAD extension applications filed pursuant to the same underlying basis, although this automatic extension will not apply to every EAD category. This change should prove very helpful because, previously, employers would have had to terminate foreign nationals who faced extensions, which were not adjudicated before the expiration date of their previous EAD. The government, however, has abandoned the requirement that EAD applications/extensions be adjudicated within 90 days per the new regulation.
As always, should you have any questions regarding this immigration news update or any immigration concerns in general, please feel free to contact our office to speak with one of our attorneys. We continue to look forward to assisting you.