Key Points of DHS' Newest Proposed Rule

Tuesday, January 5, 2016 - 5:30pm

On New Years Eve, DHS published a long awaited proposed rule to improve processes for U.S. employers seeking to sponsor and retain both nonimmigrant and immigrant workers and to provide a greater measure of stability and job flexibility for such workers. We are providing to you a summary of a few key points in the proposed rule that may be most applicable to your immigration needs:

Automatic Extensions of EAD Work Authorization for Renewals

The proposed regulation would repeal the current regulation which provides that interim employment authorization can be granted after the I-765 application for work authorization (“EAD”) has been pending for ninety (90) days. Instead, USCIS will automatically extend the EAD for 180 days upon timely filing of the renewal application for applicants who meet certain requirements.

Nonimmigrant Visa Grace Periods Expanded

The proposed regulations provides a one-time grace period of sixty (60) days after termination of employment or until the existing H-1B authorized period of stay ends, whichever is shorter. This grace period would also apply to H-1B holders’ dependents.

The proposed rule would also extend this one time grace period to persons holding E-1, E-2, E-3, H-1B1, L-1 and TN status and their dependents.

Certain Approved I-140s Would Be Portable

Under the proposed rule, USCIS clarifies that once an I-140 Petition for Immigrant Worker has been approved for 180 days, it will be valid for H-1B job portability and status extension purposes, even if the I-140 is subsequently withdrawn by the employer or the petitioning employer ceases business.

Employment Authorization for Certain I-140 Beneficiaries in Limited Circumstances

A beneficiary maintaining E-3, H-1B, H-1B1, L-1 or O-1 with an approved I-140 in the EB1, EB2 or EB3 category and ineligible to adjust status due to backlogs in the immigrant visa category may be allowed to apply for the Employment Authorization Document if there are compelling circumstances. The proposed regulation does not define “compelling circumstances”; however, an employee’s departure that would cause significant disruption to the employer may arguably be a “compelling circumstance”. For example: An L-1B worker is being sponsored for permanent residence by an employer who, after an organizational restructuring, is no longer eligible to employ workers in L-1B status and there is no other status to promptly obtain work authorization. In such a case the employer would suffer significant disruption without the L-1B employee.

Update on F-1 STEM OPT Extension

It is important to remember that the above outlined changes are only proposed, and not yet approved for implementation. The DHS similarly proposed a new rule for F-1 STEM Optional Practical Training on October 19, 2015. Due to a lawsuit that exposed a procedural deficiency at the time the rule was implemented in 2008, the current STEM-OPT Extension was at risk of being vacated altogether, but the DHS successfully obtained a stay on the vacatur of the current STEM OPT rule until February 12, 2016. They have now filed a motion to request an extension of the stay until May 10, 2016, to provide for "approximately 30 days to complete the rulemaking and 60 days for a delayed-effective-date period, under which DHS would train agency personnel and coordinate with the regulated community." In this case, it would appear DHS needs about eight months from the time of proposal to implement a new rule.
If the court refuses to provide an extension of the stay, the old rule would expire effective February 13, 2016, and DHS suggested that it may have to consider options like returning any pending STEM OPT applications and requiring that applicants refile after the effective date of a final rule.