DHS’s proposed rule to amend its regulations related to EB-1, EB-2, and EB-3 immigrant and non-immigrant visa programs is scheduled to be published in the Federal Register tomorrow. We anticipate a comment period of about 30 days, and the effective date of the rule will likely be in April 2016.

Here are some highlights from the rule:

1. Beneficiaries with I-140 approvals in E-3, H-1B, O-1 or L1 visa status will be eligible for an Employment Authorization Document (EAD) if there are compelling circumstances warranting issuance of the EAD. Compelling circumstances include serious illness or disability of main applicant or dependent, geographic relocation causes undue burden to the Applicant; employer retaliation; the Beneficiary’s inability to maintain the nonimmigrant status; or significant disruption of the employer.

2. If an I-140 beneficiary meets the compelling circumstances requirement, his family members will also be eligible for the EAD.

Here are some downsides to the new rule:

1. Employment authorization only good for one year

2. I-140 Beneficiary can only extend the EAD if they are within one year of the current priority date.

3. No mention of advance parole that will allow the person to travel outside the US

4. When the I-140 Beneficiary joins a new company with the EAD, immigrant petition still needs to be approved, and it is unclear if the I-140 requires labor certification or not in the regulations

The rule is a disappointment to say the least. It took one year for the government to formulate a rule that will have very little impact on highly skilled international workers and their families who are languishing in queues waiting for employment-based green cards.

  

Reddy & Neumann, P.C. is an immigration law firm in Houston, Texas. For over 15 years, our firm has successfully represented corporate clients across the United States in their efforts to bring foreign workers and business professionals to the United States. Reddy & Neumann, P.C. is highly experienced in working with employment-based visas, adjustment of status, green cards, and PERM labor certification. From filing, through approval, and on to appeal, we do everything possible to ensure that your company can bring the best and brightest in the world to the United States.

The Department of Homeland Security (DHS) has been planning a new rule which would amend regulations affecting certain employment-based immigrant and nonimmigrant classifications. It is anticipated that this rule will provide for the much-anticipated employment authorization (EAD) for holders of an approved I-140 immigrant petition. The first step in the regulatory process has been completed as the Office of Management and Budget approved the rule yesterday.

The details of the proposal are expected to be published in the Federal Register within days. While we don’t have specifics at this time, the DHS summary of the rule indicates that it will provide stability and job flexibility for the beneficiaries of approved employment-based immigrant visa petitions while they wait to become lawful permanent residents.

The eligibility criteria have yet to be released. It remains to be seen whether the beneficiaries of the proposal will be provided with the ability to travel, whether dependents will be included, and whether applicants will need to establish that they are maintaining their current nonimmigrant status.

 

Reddy & Neumann, P.C. is an immigration law firm in Houston, Texas. For over 15 years, our firm has successfully represented corporate clients across the United States in their efforts to bring foreign workers and business professionals to the United States. Reddy & Neumann, P.C. is highly experienced in working with employment-based visas, adjustment of status, green cards, and PERM labor certification. From filing, through approval, and on to appeal, we do everything possible to ensure that your company can bring the best and brightest in the world to the United States.

Between Friday morning and the signing of the Consolidated Appropriations Act, 2016 by the President on Friday evening, an ever so slight change in the language will cost many H-1B employers an extra $4,000. Originally, the language of the bill stated that the filing fee "shall be increased by $4,000 for applicants that employ 50 or more employees in the United States if more than 50 percent of the applicant's employees are nonimmigrants described in section 101(a)(15)(L) of such Act. Now, the following language appears in the enrolled (final) bill: "shall be increased by $4,000 for applicants that employ 50 or more employees in the United States if more than 50% of the applicant's employees are such nonimmigrants or nonimmigrants described in section 101(a)(15)(L) of such Act." The addition of the words "are such nonimmigrants" refers to H-1B nonimmigrants and therefore indicates that H-1B employees must also be counted when making the 50% calculation. We are investigating exactly how the language was added to the final bill and whether any options exist for relief. In the meantime, USCIS is expected to announce the updated filing fees on their website and will likely require the fees to be paid for any petition delivered on or after December 21st.

"The combined filing fee and fraud prevention and detection fee required to be submitted with an application for admission as a nonimmigrant under section 101(a)(15)(H)(i)(b) of 4 the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(i)(b)), including an application for an extension of such status, shall be increased by $4,000 for applicants that employ 50 or more employees in the United States if more than 50 percent of the applicant’s employees are nonimmigrants described in section 101(a)(15)(L) of such Act." By contrast, the section on the L-1 fee increase counts both H-1B and L-1 nonimmigrants: "the combined filing fee and fraud prevention and detection fee required to be submitted with an application for admission as a nonimmigrant under section 101(a)(15)(L) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(L)), including an application for an extension of such status, shall be increased by $4,500 for applicants that employ 50 or more employees in the United States if more than 50 percent of the applicant’s employees are nonimmigrants admitted pursuant to subparagraph (H)(i)(b) or (L) of section 101(a)(15) of such Act."

 

Reddy & Neumann, P.C. is an immigration law firm in Houston, Texas. For over 15 years, our firm has successfully represented corporate clients across the United States in their efforts to bring foreign workers and business professionals to the United States. Reddy & Neumann, P.C. is highly experienced in working with employment-based visas, adjustment of status, green cards, and PERM labor certification. From filing, through approval, and on to appeal, we do everything possible to ensure that your company can bring the best and brightest in the world to the United States.