In-Depth: Job portability regulation for high-skilled foreign workers

29 Nov 16

UNITED STATES

On Nov. 18, the Department of Homeland Security published a final rule expanding job portability for high-skilled foreign workers that will take effect January 17, 2017.

B·A·L’s Government Affairs team has prepared a table detailing the significant provisions in the regulation. Some highlights of the rule include:

  • Important green card reforms for foreign nationals with an approved employment-based immigrant visa petition, including priority date retention, job portability, and eligibility for employment authorization in “compelling circumstances.”
  • Provisions for H-1B workers relating to job portability and extensions.
  • Grace periods for numerous high-skilled visa holders. Workers who hold E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN visas and whose employment ceases, will have a 60-day grace period (or until their authorized stay expires), and workers in E-1, E-2, E-3, L-1, O-1 and TN status will have a 10-day grace period of their authorized stay (without work authorization).
  • Automatic extensions of employment authorization documents.

Key Differences Between Proposed and Final Rule

During the public comment period, DHS received nearly 28,000 comments on the proposed rule, including recommendations from BAL and other industry stakeholders. As a result, the final rule contains some important changes, including:

  • Like the proposed rule, the final rule allows individuals in valid E-3, H-1B, H-1B1, O-1 or L-1 status with an approved I-140 petition who are unable to obtain an immigrant visa due to numerical limits to apply for an employment authorization document if they demonstrate “compelling circumstances.” The proposed regulation’s discussion section gave four examples of compelling circumstances. While neither the proposed nor final rule defines “compelling circumstances,” the final regulation clarifies these examples in its discussion section. Notably, in response to comments from BAL and others, the example of “significant disruption to the employer” is maintained as an accepted ground of “compelling circumstances.”
  • For purposes of proving the circumstances in which an individual with a pending application for adjustment of status can move to a job in the same or a similar occupational classification, the final rule eliminates specific evidentiary requirements and substitutes the more flexible standard of “material and credible documentary evidence.”
  • The final rule clarifies that the 60-day grace period applies once for each authorized validity period (not just once for each applicant) and adds O-1 to the list of classifications eligible for the 60- and 10-day grace periods.

Read B·A·L’s full summary of the regulation’s provisions here.

B·A·L Analysis: The regulation will have far-reaching implications for foreign workers in many high-skilled visa categories and addresses some of the issues with backlogged visa categories that can inhibit employers from hiring and retaining these workers. President-elect Donald Trump has not indicated whether he supports or opposes the rule, which will take effect shortly before he takes office and will remain in effect unless DHS or Congress acts to repeal or replace it. Given the uncertainty of the regulation’s future under the new  administration, businesses and individuals may wish to contact their B·A·L professional to determine if and how they may benefit from the regulation in a timely manner.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@balglobal.com.

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