Updated: Feb 18, 2021
The White House recently issued a report outlining the executive branch’s goals in improving our current immigration system. The changes will be a product of joint efforts of the Department of Homeland Security (DHS), which includes United States Citizenship and Immigration Services (USCIS), the Department of State (DOS), and the Department of Labor (DOL). Many of the measures put forth in this report intend to streamline and clarify parts of the employment-based immigration process. Below is a quick rundown of what the executive branch hopes to accomplish and how employers will likely benefit. Employment-based Visas and DOS DOS has agreed to ensure that the maximum number of available visas are issued at their consulates every year, and intends to limit retrogression of the visa numbers from month-to-month. Retrogression has been a big issue for employers, as the visa bulletin for one month can show a very near and positive date for an employee to be eligible for a green card, but can change dramatically in the next month. Expanding and Clarifying AC-21 DHS will publish a regulation to clarify and expand a previous regulation, The American Competitiveness in the 21st Century Act (AC-21), and intends to:
1. Clarify what “same or similar” job means in the context of green card portability;
2. Allow individuals with approved I-140s to remain eligible for LPR status, even if their employer closes or seeks to withdraw the approved petition;
3. Extend grace periods for nonimmigrant workers whose status has expired or who have been fired to give them time to find another job;
4. Provide increased guidance on “recapture” time for H-1B workers; and
5. Clarify H-1B cap exemptions, i.e. explain which employers actually fall under an exemption.
While AC-21 increased maneuverability for employers dealing with business immigration issues, these clarifications and other measures expanding AC-21 will further allow for flexibility and certainty within the employment-based green card and H-1B processes. These intended changes are particularly helpful for H-1B workers and those awaiting their employment-based green cards. For instance, an H-1B worker whose employment is terminated or whose employer is unreliable in ensuring that an H-1B extension is filed timely will not have to worry about being out of status because the grace period will be extended to over 6 months, giving the worker time to get a different job or remedy the situation. USCIS to start “Known Employer” Pilot Program In an effort to streamline adjudication of immigration petitions filed by U.S. employers, USCIS is going to begin providing petitioners with an option to file a petition with USCIS to “pre-establish” certain requirements related to the employer. This will reduce the time required by USCIS to review the petition, and, for employers with multiple foreign national employees, it reduces the time and burden of continuously providing legitimizing business information to USCIS. DOL and PERM DOL intends to publish a new regulation to address the correction of “minor” errors on the application; disclose application outcomes to immigrant workers; and to streamline the PERM adjudication process. Employers who have engaged in the employment-based green card process know full well that the PERM Labor Certification process is daunting and unpredictable. Not only is the required form unclear, but the process itself is long and denials are common. Any guidance in this area is welcome! Extended Work Authorization to Those Awaiting a Nonimmigrant Visa Extension DHS intends to publish a rule that allows up to 240 days of continued work authorization beyond the expiration date while a timely extension request is pending for H-1B and E-3 workers. With this proposed change, employers and beneficiaries will be able to breathe a little easier when employment authorization is about to or has run out for an employee awaiting an extension of status. Requests for Evidence In 2010, USCIS began creating and issuing request for evidence (RFE) templates. These templates are used when an element or requirement in a petition is not met and the officer needs more evidence in the matter. The templates, by their nature, are not targeted to the precise issue with each specific petition or application, but are rather general statements that vaguely address the missing evidence. Now, DHS intends to simplify the templates so that the RFEs are “clear, concise, and consistent as well as responsive to the adjudication.” Employers who have had to respond to an extensive RFE understand the monstrosity of work they can be. Responding to a poorly written or vague RFE can take months. Employers should welcome any simplification in the RFE process, as it will hopefully lighten the employer’s burden. Prior H-1B and L-1 Approvals in Context of Extensions As it currently stands, employers with workers in approved H or L status requesting extensions can use the previous approvals to help with ease of extending status for these workers. However, the DHS intends to change instructions and evidence submitted with extensions so that adjudicators are encouraged to give reasonable deference to prior H or L approvals. This change gives both the employers and workers more predictability in the extension process. F-1 Students and Dual Intent DHS plans to clarify and issue guidance on which nonimmigrant classifications permit dual intent, which is a theory that one person can both not intend to remain permanently in the United States, but also work towards permanent residency while in the United State in that status. Currently, H and L nonimmigrants are permitted to have dual intent. Other classifications such as O, P, and R appear to permit dual intent, but there is no regulation on this. DHS is looking to clarify under what circumstances employers may directly sponsor students for permanent residency. Therefore, F-1 students may be included in the dual intent category. DHS will be clarifying dual intent with F-1s separately. Consular Processing for Nonimmigrant Visa Applications In the recent U.S. Supreme Court case, consular nonreviewability was affirmed. This is a concept wherein consulates run by DOS are free to make their own decisions in an individual’s case that are unreviewable by USCIS. In order to combat the power a consular officer has over an individual’s case, DOS intends to make it clear that consular officers should take a USCIS approval for a petition as prima facie evidence that a visa should be approved. If this is made an order to consular officers, then employers and beneficiaries alike will have less uncertainty about whether or not a visa will be issue at any given consulate. EB-5 Investor Visa Changes The EB-5 Investor Visa program allows foreign nationals to invest a substantial amount of money in an enterprise in the United States in order to receive a permanent resident card. This program has been riddled with controversy and fraud issues, so USCIS has new, specialized intake teams with expertise in economic analysis and program requirements. Along with these new teams, DHS intends to increase the investment amount requirement and increase public disclosure requirements for investors.
Danielle Atchison, Business Immigration Attorney MDIVANI CORPORATE IMMIGRATION LAW FIRM 7007 College Blvd., # 460, Overland Park, KS 66211 USA Phone :: 913.317.6200 Email :: DAtchison@uslegalimmigration.com