Proposed Executive Action affecting Highly Skilled Workers

The Department of Homeland Security published a newly proposed rule regarding highly skilled immigrant and non-immigrant workers: “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers.” The newly proposed rules are particularly helpful for H1-B workers that are waiting to obtain a Green Card, and helps to alleviate some of the concerns found during the waiting process. The proposed rule is open for written comments up through February 29, 2016. Proposed changes include:

• Granting highly skilled workers a 60 day “grace period” after their employment ends. This would allow the worker to look for new employment or change their immigration status to a different visa. Under the current rules, the employment status ends immediately upon termination of employment.
• Increases the ability for a highly skilled worker to retain their priority date for use with later approved visa petitions.
• Providing protections for employees that report wage and employment condition violations, allowing them to change employers or visa status even if their employment is terminated.
• Makes current administrative guidance the law in the following areas:
  • Definition of employers exempt from annual H1-B visa cap
  • Allowing H1-B employees to work for a new employer after filing a new H1-B petition
  • Allowing H1-B visa holders to have the status extended beyond the general six-year limit during the green card sponsorship process

There are also new requirements for some employment based immigrants in qualifying for an EAD:

1. Must be in a valid qualifying nonimmigrant status
2. Must prove that their immigrant visa was approved
3. Must prove that the priority date for their visa will be current within one year
4. Show that certain circumstances exist that warrant the approval of an EAD

Overall, the proposed rules will help clarify some issues regarding portability and priority date retention while also providing a more consistent process for many employment visa holders.