The Department of Homeland Security recently published proposed regulations designed to improve employment-based visa programs for high-skilled foreign national workers. Some of the proposed changes would conform with longstanding policies related to H-1B extensions beyond the normal six-year maximum, eligibility of H-1B workers and adjustment of status applicants to change employers, and exemption of certain employers from the H-1B annual quota. Other proposed amendments would implement new requirements in these areas, including adhering to specific timelines regarding the filing of adjustment of status applications and proposing new definitions of "same" or "similar" occupations as those terms relate to adjustment of status applicants changing jobs. The proposed regulations also establish grace periods for certain nonimmigrant visa classifications, provide limited circumstances for employment authorization for beneficiaries of approved immigrant petitions, and eliminate the current regulation requiring adjudication of Employment Authorization Document applications within 90 days. Temporary automatic extension of existing Employment Authorization Documents would be provided, however, to certain applicants.
Despite the scope of the proposed regulations, there are several issues not addressed or clarified and extensive changes could still be made prior to publication of a final rule. The comment period of the proposed regulations closes February 29, 2016.
Federal Spending Act Introduces Changes to Some Immigration Programs
Last month, both houses of Congress passed the omnibus appropriations bill, ending the threat of a government shutdown for another year. The bill, signed immediately by President Obama, represents $1.8 trillion in spending and tax breaks and directly impacts some immigration programs.
Specifically, the 2015 Appropriations Act extends EB-5 (for foreign investors), Conrad 30 Waiver (for foreign physicians), Special Immigrant Religious Workers, and E-Verify programs through the end of FY2016 with no substantive changes to any of these programs. However, the widely utilized Visa Waiver Program has undergone some changes in wake of the recent terrorist attacks in Paris. The Visa Waiver Program allows citizens of participating countries to travel to the U.S. without a visa for business or tourism with stays of 90 days or less. There are currently 38 designated Visa Waiver Program countries. The Act introduces categorical exclusions from the Visa Waiver Program for nationals of Iran, Iraq, Sudan, and Syria. These countries are not included within the Visa Waiver Program, but the Act now formally excludes dual nationals from Iran, Iraq, Sudan, and Syria. It also excludes anyone who has traveled to those countries in the past five (5) years, regardless of nationality, from participating in the Visa Waiver Program. In addition, for employers with more than 50 employees and more than 50% of those employees holding H-1B or L-1 visa status, the associated visa sponsorship filing fees have been extended and increased. Filing fees for most H-1B and L-1 employers remain unchanged. The Act also includes some procedural changes to the H-2B Visa Program for Seasonal Workers.
Although contemplated by Congress, the Act does not contain language to harm, restrict, defund, or end the U.S. refugee program's resettlement of Syrian and Iraqi refugees, nor does it defund or harm so-called "sanctuary cities." The enacted legislation also does not block the Obama Administration from continuing the original DACA program for certain childhood arrivals illegally present nor prevent the Administration from defending the expanded DACA and proposed DAPA programs in the ongoing federal litigation over such programs.
It continues to be an important and interesting time in U.S. immigration law and policy and should be closely monitored.
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