At the end of last year, the Department of Homeland Security proposed amendments (published 12/31/2015) to its regulations pertaining to employment-based immigrant (permanent) and nonimmigrant (temporary) visa programs, and comments continue to be accepted through February 2016.  The proposed amendments include several small but important changes that will be helpful to employers and their foreign national employees, and they also clarify and codify various practices and policies that have been in place for years.

These changes include:

  • Limiting grounds for automatic revocations of  immigrant petition approvals 180 days or older (even upon termination of the Petitioner’s business or upon the Petitioner’s request to withdraw an immigrant petition, a current/future employer could reuse the petition’s priority date or to use the petition approval as basis for H-1B employment beyond six years).
  • Establishing grace periods for employees when nonimmigrant employment terminates (currently no defined grace period exists).
  • Automatically extending Employment Authorization Document (EAD) validity once a renewal application is timely filed.
  • Allowing “highly skilled” approved immigrant petition beneficiaries to request an EAD even before AOS is filed, if it is not filed due to immigrant visa backlogs and if there are compelling circumstances.
  • Discontinuing requirement for DHS to adjudicate EAD applications within 90 days and issue interim EAD when the 90-day period is over.  (DHS indicates this is an issue of national security.)
  • Granting a new H-1B admission limit date upon approval of an H-1B petition beyond the usual six-year limit, to facilitate extension calculations.
  • Requiring an individual to file AOS within one year of an immigrant visa becoming available in order to remain eligible for an H-1B extension beyond the usual six-year limit.
  • Providing AOS applicants with a new supplementary form specifically for use in demonstrating that the job offer continues to exist.

We will monitor these proposals and provide updates following the close of the current period.