The ability to look for another employer is not identical to the ability to begin working for one. DHS’s November 18, 2016 final rule separated those questions in its conditional grace period for specified nonimmigrants. For a market in skilled labor, that distinction is the mechanism to examine before treating the rule as evidence of freer movement or stronger competition. [2016-27540][2015-32666]

The December 31, 2015 proposal explained that affected workers could use transition time to seek employment, seek a status change or prepare to leave the United States. The final allowed up to 60 consecutive days or the remaining authorized validity period, whichever was shorter, once per validity period. DHS could shorten or eliminate the interval, and only specified classifications qualified. [2016-27540][2015-32666]

This created a bounded opportunity to pursue a new match, not a guaranteed hiring window. O-1 was added to the final eligibility list. The grace period alone did not authorize employment, although separately eligible H-1B portability could allow work under its own conditions. Local hiring advisers therefore needed to keep a worker’s search, a prospective employer’s petition and the legal basis for starting work conceptually separate. [2016-27540][2015-32666]

Our competition reading is conditional: time to pursue another match may matter, but the documents do not measure bargaining power, wages or successful switches. The final was effective January 17, 2017. This November 24 retrospective concerns the earlier publication, and its proposal and final sources form one regulatory chain. They establish an intended mobility mechanism, not proof of a competitive outcome. [2016-27540][2015-32666]

Source documents

  1. Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workershttps://www.govinfo.gov/content/pkg/FR-2016-11-18/html/2016-27540.htm
  2. Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workershttps://www.govinfo.gov/content/pkg/FR-2015-12-31/html/2015-32666.htm