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DHS Proposes New Rule for Increased Job Flexibility: Part 2

This is part 2 of our analysis of the proposed rule published by DHS on December 30, 2015, addressing and extending employment flexibility for certain classes of nonimmigrants and prospective immigrants.

Proposed Rule Focus: Nonimmigrant Visas and EADs

In the previous post we focused on the potential benefits and consolidation of current policy for individuals already in the permanent residency process. This post will focus on the proposed policies for nonimmigrant visa holders who are not currently sponsored for an immigrant visa and employment authorization document changes. Many of the details in the proposed rule are currently executed under individual memos or practice. This rule addresses several of individually small issues, but taken together is intended to constitute an overall policy of increased flexibility and fairness in the U.S. job market for immigrant and nonimmigrant workers.

Codification of remainder/ recapture time policy

There are no major changes to the Department of Homeland Security's current policy proposed with regard to recapturing "remainder time" in H-1B status. Current policy allows for individuals to recapture time spent outside of the United States during the validity of an H-1B petition. The proposed rule would codify this policy.

Codification of Cap Exempt Work

DHS has been inconsistent in interpreting the provision of section 214(g)(5) which includes individuals employed by or at “affiliated or related nonprofit entities” for both ACWIA fee and cap exemption purposes. The proposed rule seeks to clarify the definition of "nonprofit research organizations and governmental research organizations", in order to provide clearer guidance on eligible institutions. DHS proposes that in order to qualify as exempt from the ACWIA fee and annual H-1B cap,

"nonprofit entities [should] have entered into formal written affiliation agreements with institutions of higher education and are able to meet two additional criteria. First, such entities must establish an active working relationship with the institution of higher education for the purposes of research or education. Second, they must establish that one of their primary purposes is to directly contribute to the research or education mission of the institution of higher education."

Furthermore, the proposed regulation defines what qualifies as being employed "at" such an exempt entity, clarifying this controversial issue.

Authorize and Improve Grace Periods for Nonimmigrant Workers

Currently, only H-1B nonimmigrants have a 10-day grace period allocated before and after the petition validity dates. While nonimmigrants are unable to work during the grace period, it allows both for a setup period and exit transition without requiring the individual to give up work-authorized days to take care of administrative elements of starting work life in the United States. The proposed rule extends this grace period to "certain other high-skilled nonimmigrant" workers, namely those in E-1, E-2, E-3, L-1, and TN classifications and their dependents.

In addition to the entry/exit grace period, DHS proposes a new "one-time grace period" of up to 60 days during an "authorized nonimmigrant" period whereby if the authorized employment comes to a sudden end for H-1B, H-1B1, E-1, E-2, E-3, L-1, or TN workers the individual may stay in the United States to wrap up their affairs or find new sponsored employment. Currently, if an individual working in the U.S. in one of these nonimmigrant statuses ends his or her employment "whether voluntarily or upon being laid off or terminated", the individual is required to immediately leave the U.S. We agree with DHS that this proposed change is needed to provide "sufficient time to respond to sudden or unexpected changes related to their employment."

Processing of Employment Authorization Documents

DHS proposes several changes to the processing of EADs in order to "prevent gaps in employment authorizations" as well as to "address national security and fraud concerns." As detailed in the proposed rule, new procedures for EADs will include:

  1. Automatic extension of the "validity of expiring EADs for up to 180 days from such document's and such employment authorization's expiration date in certain circumstances upon the timely filing of an application to renew such documents."
  2. Elimination of the current 90 day requirement for USCIS processing

This automatic renewal is for those applying for EADs under the same eligibility basis as previously approved, or TPS, and for whom employment authorization is not dependent on approval of an underlying petition or application. This would not include E-2, L-2, or H-4 spouse EADs, which are subject to the continued status of the principal.

Final Word

All in all, the proposed regulations would offer some much-needed flexibility in the current work environment and provide more in guidance to employers and employees. The comment period ends February 29, 2016.

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