DHS proposes rule to encourage immigrant worker retention

HIGHLIGHTS
DHS-proposes-new-rule-to-encourage-immigrant-worker

The green card application process spans multiple years for many employment-based petitioners. As a result, the Department of Homeland Security (DHS) proposed a new rule granting select benefits to green card petitioners in an effort to encourage immigrant workers to stay in the United States while waiting for legal permanent residency.

Here are some of the major proposals:

Grace period extension
Currently, H-1B Person in Specialty Occupation visa holders are only given a 10-day grace period after their visa expires to renew it, leave the United States, or find legal employment under the same or a different visa classification. DHS is now proposing to provide that same grace period to the following visa types:

  • E-1 Treaty Trader
  • E-2 Treaty Investor
  • E-3 Certain Specialty Occupation Professionals from Australia
  • L-1 Intracompany Transferee
  • TN NAFTA (North American Free Trade Agreement) Professionals visa classifications

The proposed rule also includes a one-time grace period extension to 60 days.

“The lack of a reasonable grace period for a nonimmigrant worker has created status problems not only for them, but for an employer who wishes to recruit a recently — and often suddenly — laid-off worker,” says VISANOW-affiliated attorney Earl Reyes. “Many of these workers have built a life here in the U.S. including owning a home, having children in school, owning a car, etc. This change will alleviate the panic caused by a sudden job loss and gives these workers a chance to settle their affairs here in the U.S. or find a new employer.”

Independent employment authorization
The DHS also proposed a rule granting certain individuals a one-year employment authorization document (EAD), which provides work authorization independent from a valid visa classification. Certain foreign nationals and their dependent spouses and children would qualify for the EAD if they are:

  • Currently inside the United States and maintaining E-3, H-1B, H-1B1, O-1 or L-1 status;
  • A beneficiary of an approved EB-1, EB-2 or EB-3 green card petition;
  • Without a current priority date;
  • Demonstrating a compelling reason for the needing of an independent employment authorization grant.

“This one-year EAD is meant for those that have compelling circumstances to maintain employment after a significant disruption to their employer’s business,” Reyes says. “Like the 60-day grace period, this will alleviate the ensuing panic that occurs after a sudden job loss or drastic employment change that could alter not only a nonimmigrant’s work status, but the life they have built here in the US.”

“This change will alleviate the panic caused by a sudden job loss and gives these workers a chance to settle their affairs here in the U.S. or find a new employer.”

Work authorization gap prevention
The DHS would also add an automatic 180-day EAD extension after the document’s listed expiration date. The proposal would grant DHS additional time to process the renewal and ensure all national security verification checks are completed, which also helps reduce opportunities for fraud.

Priority date portability regulations
Another proposed rule allows approved employment-based immigrant petitioners to switch employers and advance from their current position before they receive their green cards. Previously, they were limited to their current role and employer until they were officially granted legal permanent residency.

The comment period for this proposed rule, which is open to the public, ends Feb. 29. Submit a formal comment on the Federal Register website.