On November 18, 2016, U.S. Citizenship and Immigration Services (USCIS) published a final rule entitled “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers.” USCIS explained that the rule:
- Provides greater stability and job flexibility for high-skilled foreign nationals working lawfully in the U.S., and
- Increases transparency and consistency in processing nonimmigrant (temporary) and immigrant (permanent) work visa petitions.
The rule took effect on January 17, 2017, only three days before President Donald Trump’s inauguration. Given the timing, some believe that President Barack Obama’s administration passed the rule only to make immigration reform more difficult for President Trump.
One person who apparently believes so is Rep. Darrell Issa (R-California), who recently introduced The Midnight Rules Relief Act, H.R. 21. This act would allow Congress to disapprove regulations that federal agencies have submitted for congressional review within the last 60 legislative days of a session of Congress during the final year of a president’s term. If passed, this act would allow Congress to abolish all regulations that complied with the public notice and comment requirements of the Administrative Procedures Act (APA) including USCIS’ rule for high-skilled workers.
Is USCIS’ new rule a political ploy by a lame duck president, or is it what USCIS claimed—an amendment to outdated regulations? To answer this question, we need to know what the rule fixes.
Examining the rule
Outdated U.S. immigration regulations created many predicaments for legal foreign workers. If employers terminated legal foreign workers, they had no grace period to look for new jobs or settle their affairs before leaving the United States. Instead, they lost their legal status immediately upon termination, which often occurs without prior warning. Consequently, many became illegal just because they lost their jobs. The new rule amended immigration regulations by giving legal workers a grace period of up to 60 consecutive days to either find a new job or leave the United States.
Also, foreign workers with Employment Authorization Documents (EADs) often lost their work authorization because of USCIS’ processing delays. Foreign workers who timely filed EAD extensions often could no longer work just because of bureaucratic delays. The new rule amended immigration regulations by automatically extending the validity of existing EADs for up to 180 days if foreign workers timely file their EAD renewals in the same category as the previously issued EAD.
Automatically extending EADs benefits both foreign workers and the U.S. economy. Companies previously had to either suspend work on critical projects until USCIS renewed the EADs or offshore many projects to foreign countries where their foreign employees could legally work. The new rule eliminates the need for U.S. companies to suspend or offshore critical projects.
To obtain green cards, skilled foreign workers, many of whom lawfully studied in the United States and paid non-resident tuitions, wait several years, and their employers pay tens of thousands of dollars for temporary work visas before completing the arduous green card process.
During the first step of the process, employers obtain certification from the Department of Labor that there are no qualified or available U.S. workers for the position. Next, employers must show USCIS that they have sufficient financial resources to pay their foreign workers, and that the foreign workers have the education, experience or special skills that U.S. workers lack. USCIS will approve employers’ “sponsorship” petitions only if they meet these evidentiary burdens.
However, foreign workers cannot complete the final step of the process until green cards are available in their employment-based categories. Previously, if U.S. employers withdrew approved “sponsorship” petitions or went out of business, foreign workers waiting for their green cards had to start the entire process all over again. The new rule allows foreign workers who are the beneficiaries “sponsorship” petitions approved for at least 180 days to remain valid, even if sponsoring employers withdraw their petitions or go out of business.
Social and economic benefits
This new rule not only benefits foreign workers, but it also benefits the United States. How?
Highly-skilled and educated people who want to obtain green cards, contribute to the U.S. economy and society, and eventually become U.S. citizens may continue lawfully living and working in the United States. After educating intelligent and law-abiding foreign nationals who want to become Americans, it makes no sense to force them to leave after they have literally “paid the price,” “proven their worth” and “waited their time” to join the American family.
Both President Trump and Congress would be wise to keep USCIS’ new rule, which keeps America great by allowing skilled foreign workers to apply their talents and skills, which are needed for the growth of our modern, high-tech economy.
Jacob (“Jake”) Muklewicz, a shareholder with Kirton McConkie, focuses his practice on business and investor immigration. He helps employers and investors obtain the proper visas for their executive, managerial, and professional personnel and their families. He also counsels foreign nationals regarding the employment-based green card and naturalization processes.