DHS Publishes Job Flexibility Rule


On Friday, the Department of Homeland Security ("DHS") published a long-awaited final rule on the Federal Register which clarifies and amends DHS policies and regulations affecting certain immigrant and non-immigrant workers, particularly with respect to job flexibility.

DHS originally proposed this rule and posted it for public comment on December 31, 2015, and it received nearly 28,000 comments before the comment period closed on February 29, 2016. Key components of the rule, which will not take effect until January 17, 2017, include the following:

1) The final rule establishes a 60-day grace period that will allow anyone holding E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN status to change employers, including when the worker's employment ends prior to the expiration of the non-immigrant work authorization.

2) If a foreign national files an EAD renewal application on time and pursuant to the same category as the original EAD application, then the applicant's work authorization will be automatically extended for 180 days as long as the applicant's eligibility extends beyond the current EAD expiration date. The rule will also eliminate the 90-day regulatory timeframe for adjudicating EAD applications.

3) Workers who have approved I-140s in retrogressed immigrant visa categories will now be able to retain their priority dates, regardless of whether the employer who filed the I-140 withdraws the petition or goes out of business, as long as the I-140 has been approved for at least 180 days. The only exceptions are if the I-140 approval is revoked due to fraud, willful misrepresentation of a material fact, material error, or the revocation of the underlying labor certification.

Please contact your Goel & Anderson attorney if you have any questions about how these changes will affect you or your organization.