Murthy Law Firm’s Comments on Proposed Rule for I-140 EAD, and More

The U.S. Department of Homeland Security (DHS) issued a proposed rule in December 2015, entitled Retention of EB1, EB2, and EB3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers. As indicated in our January 8, 2016 NewsBrief, I-140 EAD Proposal is Limited and Restrictive, the Murthy Law Firm has submitted comments to the government requesting a number of major changes to the prosed rule, including (a) a far broader rule that entitles the beneficiary of an approved I-140 to obtain an employment authorization document (EAD), (b) greater limitations placed on when an approved I-140 can be revoked, and (c) a more liberal policy on automatically extending the validity period of EADs.

Background on Proposed Rule

The DHS published this proposed rule in the Federal Register on December 31, 2015. In general, the rulemaking processing requires that a federal agency give the public an opportunity to comment on proposed changes to regulations, and these comments must then be reviewed and taken into consideration before the final rule is published and put into effect. Accordingly, the DHS gave stakeholders until February 29, 2016 to share their thoughts and recommendations on the proposal. This resulted in the submission of more than 20,000 comments to the DHS.

Provide Broad I-140 EAD Rule

In our submitted comments, the Murthy Law Firm calls upon the DHS to provide “…broad EAD eligibility for beneficiaries of approved I-140s and their dependent family members.” We flatly reject the claim by the DHS that the I-140 EAD does not need to be widely available; to the contrary, we explain that “the most pressing needs of those suffering from the worst backlogs in the employment-based categories are largely unaddressed” by the proposed rule, as drafted. We argue that providing a liberal I-140 EAD rule would encourage the entrepreneurial spirit, create more jobs in America, help our economy, provide job flexibility, and create a more just U.S. immigration system.

In addition, we explain that, for the I-140 EAD rule to provide a real-world benefit, the DHS must address the status violation problems that otherwise would punish those who use this immigration benefit. We offer solutions to remedy the impact of such status violations within the parameters of existing law.

Place Strict Limitations on When USCIS May Revoke I-140s

We explain to the DHS that the proposed rule does not go far enough in providing certainty and stability for beneficiaries of approved I-140 petitions. One particularly troubling issue is that the proposed regulation would continue to allow the U.S. Citizenship and Immigration Services (USCIS) to revoke an I-140 petition for “USCIS error” at any time. This means that a beneficiary could lose the protections and immigration benefits provided by an I-140 petition that was approved months or even years earlier, simply because the USCIS decides that the initial approval was not warranted – or, even based on a reinterpretation of policy. We argue that this uncertainty should not exist when the USCIS has had the full opportunity to properly adjudicate the I-140 petition, especially in cases where the stakeholders have long-relied on their approved I-140s. We recognize that, by law, the USCIS must have some ability to correct its own mistakes. However, we urge that, after an I-140 has been approved for 180 days or more, such revocations should only occur in cases involving clear and convincing evidence of a gross error.

We contend that, when deciding whether or not to revoke an I-140 petition, adjudicators should have to take into consideration how long ago the petition was approved and the consequences for the petitioner and the beneficiary of the revocation. We explain that a long-approved petition should not be revoked for a minor, or debatable error. We further suggest including a deadline of a year for I-140 revocations for error. This would provide plenty of time for the USCIS to identify any such errors.

Keep 90-Day Limit on EAD Adjudication; Provide Automatic Extension of all EAD Renewals

We strongly oppose the elimination of the requirement that the USCIS adjudicate an EAD application within 90 days or else be required to provide an interim EAD. Delays in approving these applications cause financial hardship, workforce disruption, loss of drivers’ licenses and health insurance, and adversities to family members, including U.S. citizen children.

We support the proposal to automatically extend an EAD by 180 days upon applying for a renewal. However, as drafted, the proposed rule excludes many categories of nonimmigrants from this benefit, including those in H-4 and L-2 status. We urge the DHS to change the proposal to grant this benefit for all EAD renewals.

Clarify Availability of Grace Periods, and Add Greater Flexibility to this Benefit

The proposed rule seeks to create a grace period of sixty days applicable to foreign nationals holding E-1, E-2, E-3, H1B, L-1, or TN status. Individuals in such grace periods would be allowed to request to change or extend nonimmigrant status, if otherwise eligible for that benefit. This long-overdue provision is intended to address the current USCIS policy that generally makes a worker who is laid off or otherwise left without a job to immediately fall out of status.

We strongly support the addition of this grace period, as the current policy is unfair and illogical. A grace period would facilitate the ability of a laid-off worker to transition to new employment or to an alternative status; at the very least, it would allow the foreign national time to wrap up his/her affairs and depart the United States within a reasonable period. However, as proposed, the provision is unclear and too limited to accomplish its purpose. We suggest appropriate clarifications for the terms used in the proposed rule and request that the grace period be available more broadly than proposed.

Truly Address Green Card Backlogs by Counting Only the Principal Beneficiary

By law, there are a limited number of green cards in the preference categories (e.g., employment-based, second preference (EB2)) that may be issued each fiscal year. However, the USCIS and the U.S. Department of State (DOS) have narrowly interpreted the corresponding statute to mean that, not only is the principal beneficiary counted against the total, but each dependent family member, as well. This is one of the primary reasons there are such long waits in the oversubscribed preference categories.

To illustrate, say Raj is married and has two children. He and his family are all Indian citizens. Raj has an approved I-140 with a current priority date. He, his wife, and his two children each file their respective I-485s, all of which are approved. By law, when Raj’s green card is issued, this must be deducted from the total number available. But, by regulation, the DHS and DOS have interpreted this statute to also count the green cards issued to his wife and two children against the total.

The Murthy Law Firm urged the DHS to change its regulations to stop including dependent family members when counting the number of green cards issued in the preference categories. This simple regulatory change would greatly reduce, if not eliminate, the tremendous wait-times in the oversubscribed categories!


We hope that the DHS incorporates the changes proposed by the Murthy Law Firm into the final rule. We appreciate that the government recognizes the need for enhanced stability and job flexibility within the immigration process. However, the DHS must go further, particularly in the areas explained above, in order to achieve these goals.

There is no set timeframe for when the final rule may be published. As soon as any new details are provided, the information will be posted on MurthyDotComSubscribe to the free MurthyBulletin to remain informed on this and other important issues related to immigration law.

The Murthy Law Firm’s full comments on this proposed rule are available online.


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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.