(DHS) The Department of Homeland Security is working on a proposed rule that will allow certain beneficiaries of an approved Immigrant Petition for Alien Worker (Form I-140) to obtain an Employment Authorization Document (EAD) and to engage in natural career advancements.

1. Keep Hopes Alive: EADS &Accepting Job
Promotions After An I-140 Approval Is Soon
Going to be A Reality
By Michael Phulwani, Esq, David H. Nachman
Esq, and Rabindra K. Singh Esq.

2. Introduction
 (DHS) The Department of Homeland Security is working on a proposed rule
that will allow certain beneficiaries of an approved Immigrant Petition for
Alien Worker (Form I-140) to obtain an Employment Authorization Document
(EAD) and to engage in natural career advancements.
 DHS is expected to release the proposed rule during the first quarter of its
New Fiscal Year starting on October 1, 2015.

3. Sources of Prediction
 A glimpse of this proposed rule was alluded to in the Memorandum released
by the DHS Director, Jeh Johnson, to the United States and Citizenship
Services (USCIS) Director, Leon Rodriguez, following the President Obama’s
announcement of executive action on November 20, 2014
 Taking into consideration that the employment-based immigration system is
afflicted with extremely long wait for green cards due to relatively low green
card numerical limits established by Congress 25 years ago. The memorandum
directed the USCIS Director to take several steps to modernize and improve
the immigrant visa process.

4. Mr. Johnson’s Memorandum
 [C]arefully consider other regulatory or policy changes to better assist and
provide stability to the beneficiaries of approved employment-based
immigrant visa petitions. Specifically, USCIS should consider amending its
regulations to ensure that approved, long-standing visa petitions remain
valid in certain cases where they seek to change jobs or
employers.” [emphasis supplied]
 Though Mr. Johnson’s Memorandum built upon the hope created by
President’s announcement(s), it lacked the specificity and clarity as to what
kind of regulation and/or policy changes USCIS should implement; when the
regulations and/or policy changes would be implemented; how the terms such
as “long-standing” and “certain cases” are going to defined, etc.

5. Continued
 After waiting for six (6) months, the generic and fluid wordings in Jeh Johnson’s
Memorandum became somewhat crystallized when the “Employment-Based
Immigration Modernization” proposed rulemaking was added to the DHS’ regulatory
agenda. The regulatory agenda stated that the DHS is proposing to allow
beneficiaries of certain approved I-140 Petitions to obtain work authorization,
clarify portability, and provide relief to workers facing lengthy adjustment delays.
Specifically, the regulatory agenda states that:
 “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 1-140) 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. [emphasis supplied]

6. White House Released a report
 As soon as the DHS regulatory agenda was published, the chat rooms discussing the anticipated
proposed rulemaking were flooded with comments. Indian and Chinese foreign-born workers in the
United States, who have been waiting for years (and some for decades), began speculating about when
USCIS will publish the much awaited proposed rule, how much time it will take for the proposed rule to
become effective, who will qualify under certain approved Immigrant Petition for Alien Worker (Form
1-140), etc.
 Fast forward to July 2015, the White House released a report,
Modernizing and Streamlining Our Legal Immigration System for the 21st Century, which included a
snapshot of new actions that the federal agencies will be taking to improve the visa experience for
families, workers, employers, and people in need of humanitarian relief.

Among other things, this report laid down the recommendations regarding employment-based visa
issuance. Although, this report did not lay down all the specifics, it added another layer of hope by
specifically stating that the “DHS intends to publish a regulation” which would allow foreign workers
waiting for green cards to change jobs and receive promotions by clarifying the meaning of “same or
similar” to the job that was the original basis for permanent employment. Further, the report clarified
that the proposed rule would enable individuals whose employment-sponsored immigrant visa petitions
have been approved for more than a year to “retain” eligibility for LPR (Green Card) status despite the
petitioning employer closing its business or seeking to withdraw the approved petition.

7. Deciphering the Developments &
Future Predictions
 Based on the developments so far, it is safe to predict that DHS, most likely in the
first quarter of its New Fiscal Year, starting on October 1, 2015, will announce a
proposed rule that will enable certain foreign nationals, specifically those having an
I-140 Petitions approved for more than a year, to obtain work authorization. Also, it
is not out of the line to predict that the proposed regulation will likely allow foreign-
born workers waiting for employment-based green cards to change jobs and receive
promotions by defining the term “same or similar” post I-140 Petition approval stage.
Thus, the flexibility of changing jobs provided to the foreign workers post submission,
and wait of 180 days, of Adjustment of Status Applications (Form I-485) under the
American Competitiveness in the Twenty-First Century Act (AC-21) is likely to be
expanded and conferred upon those beneficiaries whose I-140 Petition remained
approved for more than a year.

8. I-140 Petition Approval
 Based on the developments so far, it is safe to predict that DHS, most
likely in the first quarter of its New Fiscal Year, starting on October 1,
2015, will announce a proposed rule that will enable certain foreign
nationals, specifically those having an I-140 Petitions approved
for more than a year, to obtain work authorization. Also, it is not out
of the line to predict that the proposed regulation will likely allow
foreign-born workers waiting for employment-based green cards to
change jobs and receive promotions by defining the term “same or
similar” post I-140 Petition approval stage. Thus, the flexibility of
changing jobs provided to the foreign workers post submission, and
wait of 180 days, of Adjustment of Status Applications (Form I-485)
under the American Competitiveness in the Twenty-First Century Act
(AC-21) is likely to be expanded and conferred upon those
beneficiaries whose I-140 Petition remained approved for more than a
year.

9. Foreign Born Workers Benefit
 Last but not the least, it could also be the case that if proposed and
implemented, the foreign-born workers, who had an I-140 petition approved
for more than a year, will not be forced to start the employment-based green
card petition all over again after making a job switch from the employer who
had sponsored him/her for the green card to another employer. In simple
terms, having an I-140 petition approved for more than a year will allow the
foreign-born workers in the United States to completely escape the time-
intensive and employer-dependent Labor Certification process, and the
submission of I-140 Petition without losing their spot in the green card line.
 Of course, it is always difficult to look into the crystal ball and see the future.
However, given the information that has been provided to the public with
regard to these initiatives, it continues to be our hope that individuals who
have waited many years to be able to have their green cards will be afforded
the opportunity to take advantage of job flexibility.

10. Foreign Born Workers Benefit
 Last but not the least, it could also be the case that if proposed and
implemented, the foreign-born workers, who had an I-140 petition approved
for more than a year, will not be forced to start the employment-based green
card petition all over again after making a job switch from the employer who
had sponsored him/her for the green card to another employer. In simple
terms, having an I-140 petition approved for more than a year will allow the
foreign-born workers in the United States to completely escape the time-
intensive and employer-dependent Labor Certification process, and the
submission of I-140 Petition without losing their spot in the green card line.
 Of course, it is always difficult to look into the crystal ball and see the future.
However, given the information that has been provided to the public with
regard to these initiatives, it continues to be our hope that individuals who
have waited many years to be able to have their green cards will be afforded
the opportunity to take advantage of job flexibility.