ABCs of Immigration: Executive Summary – The High Skilled Worker Final Rule

On November 18^th, the Department of Homeland Security and US Citizenship and Immigration Services published a long-awaited final skilled worker regulation that makes major changes to the H-1B program, I-140 green card applications and employment authorization documents.

Some opponents of skilled worker immigration are already targeting the regulation and members of Congress could use the Congressional Review Act to pass a resolution disapproving of the new regulation. They have 60 days from the point when the regulation is published (excluding recesses) to pass a joint resolution opposing the regulation. President Trump would then have to agree or Congress would have to override his veto. Whether opponents of the regulation have the votes in Congress to overturn it is not yet clear.

According to DHS, the regulation provides the following new benefits:

•  Streamlining the process for US employers to workers for green cards
•  Increase job portability and provide greater stability and job flexibility for such workers
• Increased transparency and consistency in the application of agency policy

The rule covers the following subjects:

• Codifying policies regarding H-1B extensions beyond six years under AC21
• Codifying policies regarding INA 204(j) portability allowing certain workers with pending adjustment of status applications to change employers
• Codifying policies regarding H-1B portability allowing workers to begin employment with a new employer upon the filing of a new H-1B petition
• Counting workers against the H-1B cap including clarifying when time spent abroad counts against H-1B time and determining which workers are “cap-exempt” as a result of previously being counted against the cap
• H-1B cap exemption determinations for employers
• Protections for H-1B whistleblowers
• Survival of an I-140 petition when an employer attempts to revoke it
• The establishment of priority dates in green card cases
• Retention of priority dates when workers change employers or accepts promotions
• Eligibility for employment authorization for backlogged employment-based green card applicants with “compelling circumstances”
• Extension of the H-1B’s ten day before and after grace periods to E-1, E-2, E-3, L-1 and TN classifications
• Creation of new 60 day grace periods for workers who stop working prior to the end of a non-immigrant validity period (applicable to E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classifications)
• H-1B licensing requirements
• Automatic extension of EAD validity for 180 days for certain work card categories
• The end of the 90 day adjudication requirement for EADs

The rule is set to take effect on January 17^th.

 

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