The Department of Homeland Security has issued proposed regulations to address retention and portability of high-skilled workers in the U.S. in response to President Barak Obama’s November 2014 directives to relieve the worst ills of the immigration code.

The proposed changes target U.S. businesses and their employees. According to DHS, the laws are “intended to better enable US employers to employ and retain high-skilled workers who are beneficiaries of employment-based immigration visa petitions, while increasing the ability of such workers to further their careers by accepting promotions, changing positions with current employers, changing employers, and pursuing other employment opportunities.” However, DHS clearly indicates that most of the changes simply codify current practices. Many of the proposed changes will have no practical effect, including the seemingly most dramatic change relating to work authorization for certain individuals with approved I-140s.

Highlights of the proposed regulations include provisions:

Codifying and clarifying how to extend beyond the sixth year of H-1B, when an H-1B nonimmigrant can change jobs or employers without affecting his or her approved immigrant visa petition, how to calculate H-1B recapture time, and who qualifies as “cap-exempt” employers.

  1. Codifying that a beneficiary may port and retain after 180 days from approval the priority date of an approved I-140, regardless of whether the I-140 petitioner has withdrawn the approval. Exception: if the I-140 is withdrawn for fraud or misrepresentation or if the underlying labor certification is invalidated.
  2. Offering a one-time 60-day grace period, during an authorized validity period, for individuals in E-1, E-2, E-3, H-1B, L-1, or TN status, where employment ends due to voluntary or involuntary termination or lay off. These individuals are not authorized to work during the grace period.
  3. Extending the 10-day grace period granted before and after H-1B status to individuals in E-1, E-2, E-3, L-1, or TN status. These individuals are not authorized to work during the grace period.
  4. Permitting issuance of one-year Employment Authorization Documents (EAD) for individuals in E-3, H-1B, H-1B1, L-1 or O-1 status with an approved I-140 and no available visa numbers if the individual can show compelling circumstances. The definition of compelling circumstances is not included in the regulations, but DHS includes examples, such as serious illnesses and disabilities, employer retaliation, and other substantial harm to the applicant or to the employer. If these nonimmigrants start to work pursuant to the EAD, they are considered to have abandoned their nonimmigrant status and cannot adjust status to permanent residence in the U.S. The beneficiary must apply for an immigrant visa abroad. EAD also is available to spouses and children, but can be granted EADs only if the principal beneficiary has been approved for an EAD. Renewals are allowed in certain circumstances.
  5. Eliminating the 90-day processing time required of USCIS for EADs and automatically extending most EADs 180 days beyond the expiration if the extension was timely filed, the extension is based on the same eligibility, and the eligibility of the EAD extends beyond the expiration of the EAD.


Jackson Lewis will provide further updates as warranted.