In a memo[1] dated 11/20/2014, Jeh Johnson (Secretary of Dept. of Homeland Security) stated:
As you know, our employment-based immigration system is
afflicted with extremely long waits for immigrant visas, or
"green cards," due to relatively low green card numerical limits
established by Congress 24 years ago in 1990.
...
The resulting backlogs for green cards prevent U.S. employers
from attracting and retaining highly skilled workers critical to
their businesses. U.S. businesses have historically relied on
temporary visas- such as H-1B, L-1B, or 0-1 visas-to retain
individuals with needed skills as they work their way through
these backlogs. But as the backlogs for green cards grow longer,
it is increasingly the case that temporary visas fail to fill
the gap.
...
To correct this problem, I hereby direct USCIS to take several
steps to modernize and improve the immigrant visa process.
DHS' own progress report lists [2]:
Proposing a draft rule and new guidance to enhance options for
high skilled workers to change jobs and accept promotions while
they wait for their green cards to become available.
This draft rule is, titled "Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers" [3], is open for comments until Feb 29, 2016. So you'd think USCIS would have done something to, in Secretary Jeh Johnson's words "correct this problem" - right?! NO!!
Outside of establishing a one-time 60-day grace period for employees with an approved I-140 to find new employment, this rule falls much short of what was originally promised in Nov 2014. Here are the main provisions:
* Clarify and improve longstanding agency policies and procedures implementing sections of the American Competitiveness in the Twenty-First Century Act (AC21) and the American Competitiveness and Workforce Improvement Act (ACWIA) related to certain foreign workers, which will enhance USCIS’ consistency in adjudication.
* Better enable U.S. employers to employ and retain certain foreign workers who are beneficiaries of approved employment based immigrant visa petitions (I-140 petitions) while also providing stability and job flexibility to these workers. The proposed rule will increase the ability of such workers to further their careers by accepting promotions, making position changes with current employers, changing employers, and pursuing other employment opportunities.
* Improve job portability for certain beneficiaries of approved I-140 petitions by limiting the grounds for automatic revocation of petition approval.
* Clarify when individuals may keep their priority date to use when applying for adjustment of status to lawful permanent residence, including when USCIS has revoked the approval of their approved I 140 petitions because the employer withdrew the petition or because the employer’s business shut down.
* Allow certain high-skilled individuals in the United States in E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status to apply for one year of unrestricted employment authorization if they:
1) Are the beneficiaries of an approved I-140 petition,
2) Remain unable to adjust status due to visa unavailability, and
3) Can demonstrate that compelling circumstances exist which justify issuing an employment authorization document.
Such employment authorization may only be renewed in limited circumstances.
* Clarify various policies and procedures related to the adjudication of H-1B petitions, including, among other things, extensions of status, determining cap exemptions and counting workers under the H-1B visa cap, H-1B portability, licensure requirements, and protections for whistleblowers.
* Establish a one-time grace period during an authorized validity period of up to 60 days for certain high-skilled nonimmigrant workers whenever their employment ends so that they may more readily pursue new employment and an extension of their nonimmigrant status.
I encourage everyone here to read and comment on this in the next few weeks. You can do it online by going to www.regulations.gov and searching for the eDocket number USCIS-2015-0008 [4].
Outside of establishing a one-time 60-day grace period for employees with an approved I-140 to find new employment, this rule falls much short of what was originally promised in Nov 2014. Here are the main provisions:
* Clarify and improve longstanding agency policies and procedures implementing sections of the American Competitiveness in the Twenty-First Century Act (AC21) and the American Competitiveness and Workforce Improvement Act (ACWIA) related to certain foreign workers, which will enhance USCIS’ consistency in adjudication.
* Better enable U.S. employers to employ and retain certain foreign workers who are beneficiaries of approved employment based immigrant visa petitions (I-140 petitions) while also providing stability and job flexibility to these workers. The proposed rule will increase the ability of such workers to further their careers by accepting promotions, making position changes with current employers, changing employers, and pursuing other employment opportunities.
* Improve job portability for certain beneficiaries of approved I-140 petitions by limiting the grounds for automatic revocation of petition approval.
* Clarify when individuals may keep their priority date to use when applying for adjustment of status to lawful permanent residence, including when USCIS has revoked the approval of their approved I 140 petitions because the employer withdrew the petition or because the employer’s business shut down.
* Allow certain high-skilled individuals in the United States in E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status to apply for one year of unrestricted employment authorization if they: 1) Are the beneficiaries of an approved I-140 petition, 2) Remain unable to adjust status due to visa unavailability, and 3) Can demonstrate that compelling circumstances exist which justify issuing an employment authorization document. Such employment authorization may only be renewed in limited circumstances.
* Clarify various policies and procedures related to the adjudication of H-1B petitions, including, among other things, extensions of status, determining cap exemptions and counting workers under the H-1B visa cap, H-1B portability, licensure requirements, and protections for whistleblowers.
* Establish a one-time grace period during an authorized validity period of up to 60 days for certain high-skilled nonimmigrant workers whenever their employment ends so that they may more readily pursue new employment and an extension of their nonimmigrant status.
I encourage everyone here to read and comment on this in the next few weeks. You can do it online by going to www.regulations.gov and searching for the eDocket number USCIS-2015-0008 [4].
[1] Executive Action: Support High-skilled Business and Workers - http://www.dhs.gov/sites/default/files/publications/14_1120_...
[2] One Year Later: DHS Working To Fix Our Broken Immigration System - http://www.dhs.gov/publication/one-year-later-dhs-working-fi...
[3] USCIS Seeks Comments on Proposed Rule Affecting Certain Employment-Based Immigrant and Nonimmigrant Visa Programs - https://www.uscis.gov/news/uscis-seeks-comments-proposed-rul...
[4] http://www.regulations.gov/#!docketDetail;D=USCIS-2015-0008