DHS Proposal on EADs for I-140 Beneficiaries, but Rule Change may be Long Way Off

The U.S. Department of Homeland Security (DHS) and the U.S. Citizenship and Immigration Services (USCIS) are in the initial stages of proposing important regulatory changes affecting employment-based (EB) immigration. The spring 2015 DHS regulatory agenda includes rulemaking that, if implemented, would make certain beneficiaries of approved immigrant petitions (I-140 forms) eligible to apply for employment authorization documents (EADs). Although there are rumors and a great deal of excitement in the immigrant community, it is important to understand that these are just proposals, with few timeframes and even fewer details currently available.

Executive Actions of Nov 2014 to Provide Flexibility for Employees

In November 2014, President Obama proposed a series of immigration-related executive actions, as discussed in the MurthyDotCom NewsBrief, President’s Executive Actions for U.S. Businesses and Highly Skilled Workers  (21.Nov.2014). One such initiative was a directive to the USCIS to improve the immigration system for the beneficiaries of EB immigrant petitions (I-140s). More specifically, the President asked the USCIS to make such beneficiaries less dependent upon petitioning employers.

EB Immigration Improvements on Regulatory Agenda

The I-140 related modifications sought under the President’s executive actions cannot occur unless there are changes to existing regulations. Changing regulations involves multiple, often lengthy steps. The first public notification is often the Office of Management and Budget’s (OMB) unified agenda. The OMB unified agenda is a listing of regulations that are under consideration or review. The spring 2015 unified agenda includes the Employment-Based Immigration Modernization.

As described, the DHS is working on a proposed rule that, if implemented, would affect “the adjustment of status process and employment-based immigration.” While there are no specific details at this early stage, as the abstract of this plan states, “DHS proposes to allow certain approved… [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.”

Exciting Proposal, but Details are Scarce

The prospect of such wide-reaching improvements to the EB immigration system is exciting and has gained international attention. However, as previously mentioned, this is merely a proposal. Many items that appear on the agenda never move past this initial stage or get placed on the agenda for several years before progressing. For instance, in 2011, the OMB unified agenda included a proposal to allow certain H-4 spouses to apply for EADs; but, it was not until May 2015 that the H-4 EAD regulation was finally implemented.

Before any potential regulation can be finalized, it will have to be published in the Federal Register and subject to a notice and comment period. Additional notices and steps could occur prior to publication of a proposed regulation in the Federal Register. The agenda listing references a possible notice of proposed rulemaking (NPRM), which may be published in October 2015.

Best Not to Rely on Proposed Regulation for Future Plans

Since the timeframe for this potential change is indefinite and uncertain, stakeholders are urged to move forward with immigration strategies that are appropriate under the current laws and regulations. Further, even if a related regulation eventually is implemented, it is not yet known which I-140 beneficiaries would be eligible and/or precisely what benefits may be made available to them.

Potential Tie-In of AC21 Regulation

A separate item on the spring 2015 agenda involves implementation of the American Competitiveness in the 21st Century Act (AC21). AC21 has existed for well over a decade and still has no regulations. The regulatory agenda has included AC21 regulations for multiple years, but the matter has never moved beyond the agenda listing. The spring 2015 abstract of the AC21 proposed regulations, however, states that the USCIS is considering incorporating the provisions of the regulation into the Employment-Based Immigration Modernization regulation, discussed above.

If this matter moves forward, it is expected to address three existing immigration laws affecting the H1B program and employment-based green card sponsorship, including AC21. The purpose of this type of potential regulation is to “clarif[y] several interpretive questions raised by these laws and ensure that DHS practice is consistent with them.”


There are many exciting developments that may address deficiencies in the existing EB immigration system. The Murthy Law Firm is closely tracking these, and will continue to advocate for reform of existing laws and regulations on behalf of the immigrant community, to create a more fair and just immigration system. As new details or timeframes emerge, they will be posted on MurthyDotCom and distributed to subscribers of the free MurthyBulletin.


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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.