Final Rule Eases the Way for Certain Immigrant and Nonimmigrant Workers and Their Employers
The Department of Homeland Security has amended its regulations on certain employment-based immigrant and nonimmigrant visa programs. The final rule provides various benefits to program participants, including improved processes and increased certainty for U.S. employers seeking to sponsor and retain immigrant and nonimmigrant workers; greater stability and job flexibility for those workers; and increased transparency and consistency in the application of DHS policy related to affected classifications. The final rule, Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, was published in the Federal Register November 18, 2016.
DHS said that many of the changes made by the final rule are primarily aimed at improving the ability of U.S. employers to hire and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents. At the same time, changes to the final rule increase the ability of those workers to seek promotions, accept lateral positions with current employers, change employers, or pursue other employment options.
U.S. Citizenship and Immigration Services said the regulations were amended, among other reasons, to:
- Clarify and improve longstanding DHS policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act related to certain foreign workers, which will enhance USCIS’ consistency in adjudication.
- Better enable U.S. employers to employ and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions (Form I-140 petitions) while also providing stability and job flexibility to these workers. The rule increases the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers, and pursuing other employment opportunities.
- Improve job portability for certain beneficiaries of approved Form I-140 petitions by maintaining a petition’s validity under certain circumstances despite an employer’s withdrawal of the approved petition or the termination of the employer’s business.
- Clarify and expand when individuals may keep their priority date when applying for adjustment of status to lawful permanent residence.
- Allow certain high-skilled individuals in the United States with E-3, H-1B, H-1B1, L-1 or O-1 nonimmigrant status, including any applicable grace period, to apply for employment authorization for a limited period if: (1) they are the principal beneficiaries of an approved Form I-140 petition, (2) an immigrant visa is not authorized for issuance for their priority date, and (3) they can demonstrate compelling circumstances exist that justify DHS issuing an employment authorization document in its discretion.
Employment authorization may only be renewed in limited circumstances and only for one-year increments.
The final rule is effective January 17, 2017.
The Reposted with permission from Wolters Kluwer.
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