USCIS Indicated Changes to Employment Based Immigration on Regulatory Agenda

With a recent publication in the Federal Register, USCIS has started the process to begin modernizing the employment based immigration system. Unfortunately, they are only at the beginning of the process, and just indicated that modernizing the employment based system was part of their upcoming regulatory agenda. Below is how they state it:

The Department of Homeland Security (DHS) is proposing to modernize the immigrant visa system by amending its regulations governing the adjustment of status process and employment-based immigration. Through this rule, DHS proposes to allow certain approved Immigrant Petition for Alien Worker (Form I–140) beneficiaries to obtain work authorization, clarify the meaning of portable work authorization, and remove unnecessary restrictions on the ability to change jobs or progress in careers, as well as provide relief to workers facing lengthy adjustment delays.

Why details are still scarce, it does look like they are looking at either providing EAD’s to those who have approved I–140’s that are stuck in the backlog, or, even better, allowing them to file the I–485 so that not only do they get EAD’s, but also they get more flexibility in their ability to us the I–140 Portability provisions. For those unfamiliar with the portability provisions, an employee whose I–140 is approved and I–485 has been pending for at least 6 months is allowed to move to a new employer and, as long as the position they move to is the same or similar to the previous position, the green card process can continue with the new employer. For those who are unable to file the I–485 due to backlogs, no portability is allowed and, if they switch employers they must start the process over again. This coupled with a recent court decision that stated that a priority date from an old I–140 cannot be transferred to a new I–140 IF the employer withdraws the old I–140, make it difficult for people caught in this situation to be able to eventually become permanent residents. If the new regulation does encompas such a change it will be very beneficial to employees stuck in these situations. It will also be advantageous to employers as they will now be able to get employees that they may have wanted to bring on board because of their skills, but could not because they were stuck at another employer until they recieved their green card.

We will certainly keep you posted on any additional developments in this regard.