DHS Rule For Highly Skilled Immigrants: Helpful, But Timid

shutterstock_204239854Yesterday morning began with a panicked message from a software engineer employed by one of my corporate clients.  The engineer had “ported” his green card application, joining my client after having been sponsored by a prior employer for permanent residence.  The company was happy he had joined, since he brought needed skills to help upgrade the company’s infrastructure.  The engineer’s message related to his green card application: nine years after his immigrant visa petition had been approved, while he was waiting in the interminable backlog for high-skilled workers from India, USCIS decided to question its approval of the immigrant visa petition filed by the prior employer.  The engineer was now second-guessing his decision to have taken the position with my client, wondering if his immigration future might be more secure if he went back to the work he had been doing previously.

On December 31, the Obama administration published a proposed rule in the Federal Register meant to address exactly this type of scenario, and I reviewed the proposed rule with that engineer’s situation fresh in my mind.  While the proposed rule would codify many current government interpretations that exist only in the form of agency guidance memos, and would make helpful changes to alleviate some of the worst problems these skilled workers face, other proposed changes are very modest in scope.

Over a year ago, the administration promised to “modernize” the employment based immigration system to the extent possible within the boundaries of the current statute.  One of the most pressing issues in the high-skilled immigration system is the long delays in the green card process, particularly for immigrants from India and China.  For experienced engineers, and other workers whose jobs require graduate education, the wait from company sponsorship to receipt of green card is at least five to seven years, while for other skilled and professional workers it is likely over twenty years.  These employees are already the beneficiaries of immigrant petitions based on the unavailability of their skills in the U.S. labor market, but their immigrant petitions are currently only valid for the employer who sponsored them.

During the long time period that they are waiting for their green cards to become available, skilled immigrants in the backlogs are stuck on employer-sponsored temporary visas, a situation that some employers exploit and that limits an employee’s ability to advance his or her career as often a new employer is unwilling to repeat the expensive employment-based sponsorship process for a new hire.  In addition, employment authorization for spouses is limited, and children born outside the United States who were raised here during the long quota delays are at risk of “aging out” and losing the opportunity to stay in the United States with their parents.

The proposed rule contains helpful provisions meant to protect these skilled immigrants from the worst problems associated with their temporary visa status.  The proposal, for example, would grant workers a sixty-day “grace period” after their employment ends, which would allow them to either look for other employment, change to a different type of temporary visa, or wrap up their affairs in the United States.  This is an improvement, as under current administrative interpretation, the employee’s status ends immediately upon termination of employment, which provides a worker facing a layoff or termination with no time to switch to another employer or to meaningfully put their affairs in order before leaving the United States.  Similarly, the rule provides “whistleblower” protections for some employees who report wage and working condition violations, allowing them to change to a new employer or another status even if their employer terminated their employment.  It also codifies current administrative practice in a number of areas, including the definition of employers exempt from the annual cap on H-1B visas (universities, nonprofit research organizations, government research organizations, and related or affiliated nonprofit organizations), the eligibility of H-1B employees to work for a new sponsoring employer upon filing of a new H-1B petition, and the ability of H-1B nonimmigrants to have that status extended beyond the general six year limitation during the long green card sponsorship process.  All of these are helpful provisions.

In two key areas, however, the administration’s proposals fail to deliver for high-skilled immigrants.  The first is in giving high-skilled immigrants assurances that if they do change employers or positions after immigrant visa approval, their original immigrant visa petition will remain valid, or will at least allow them to maintain their place (established by a “priority date”) in the long line to permanent residence.  For a high-skilled immigrant contemplating a job change or accepting a promotion or transfer with their current employer, maintaining the priority date is the most important issue, even where the new employer has to re-start the immigrant visa process.  The regulations currently allow the immigrant to change jobs and keep their oldest priority date, as long as the prior immigrant visa petition is not revoked.  The proposed regulation addresses a significant problem in the current regulations, which allow the revocation of the petition in a variety of situations beyond the employee’s control.

Unfortunately, the proposed rule does not go far enough to give highly skilled immigrants and their employers confidence in being able to retain the benefits of the prior approval.  While properly holding that a petition revoked for fraud or misrepresentation does not confer a priority date on the immigrant, the proposed regulation contains a broad provision allowing a subsequent adjudicator to decide that the prior approval was an “error.”  This provision makes the employee’s immigration process inappropriately vulnerable to discretionary second-guessing of a prior approval by another adjudicator. All too often, such assertions of error amount to a second adjudicator deciding that he or she would have made a different decision than the adjudicator who approved the first petition, even though the petition was approvable when filed (and, indeed, approved).  Comments on the proposed rule should stress that a standard higher than mere “error” is necessary to prevent such second-guessing.

The second key area where the administration falls short is the very limited availability of employment authorization for highly skilled immigrants with approved immigrant visa petitions.  Such immigrants will be required to prove “compelling circumstances” in order to justify a grant of employment authorization, which might include the need to relocate because of a disability or illness, employer retaliation for a working conditions complaint, or a compelling need of the employer to have the employee continue employment.  This provision will be the most disappointing to highly skilled immigrants, who have eagerly awaited the announcement of a generous employment authorization provision.   Comments should stress that this group of immigrants, who have followed the rules of the immigration system but may find themselves stuck because of quota backlogs they did not create, should be able to get employment authorization under terms that are much more flexible than those outlined in the proposed rule.

The agency’s proposed rule provides some helpful clarifications and new provisions that should increase the confidence of the regulated public that they can rely on prior decisions in their immigrant visa cases. Unfortunately, DHS also missed a big opportunity to unleash the creativity and skills of the many highly skilled immigrants stuck in visa backlogs due to Congressional failure to reform the immigration system for today’s needs.

Written by William Stock, AILA President-Elect

by William Stock