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USCIS Issues Final Rule Addressing Priority Date Retention, Portability, and More on Employment-Based Immigrant and Nonimmigrant Classes
Practical Law Legal Update w-004-6328 (Approx. 6 pages)
USCIS Issues Final Rule Addressing Priority Date Retention, Portability, and More on Employment-Based Immigrant and Nonimmigrant Classes
by Practical Law Labor & Employment
| Published on 22 Nov 2016 • USA (National/Federal) |
US Citizenship and Immigration Services (USCIS) and the Department of Homeland Security (DHS) have published in the Federal Register a final rule amending its regulations related to certain employment-based immigrant and nonimmigrant visa programs. The final rule is effective January 17, 2017.
On November 18, 2016, US Citizenship and Immigration Services (USCIS) and the Department of Homeland Security (DHS) published in the Federal Register a final rule amending its regulations related to certain employment-based immigrant and nonimmigrant visa programs.
The final rule is intended to benefit US employers and foreign workers participating in employment-based nonimmigrant and immigrant visa programs by:
- Streamlining the processes for employer sponsorship of nonimmigrant workers for lawful permanent resident status.
- Increasing job portability.
- Providing:
- stability and flexibility for nonimmigrant workers; and
- additional transparency and consistency in the application of DHS policies and practices related to employment-based nonimmigrant and immigrant visa programs.
These changes are intended to better enable:
- US employers to employ and retain high-skilled workers who are Form I-140 petition beneficiaries.
- High-skilled workers who are Form I-140 petition beneficiaries to further their careers by:
- accepting promotions;
- changing positions with current employers;
- changing employers; and
- pursuing other employment opportunities.
Specifically, the final rule addresses, clarifies, and improves:
- The ability of H-1B nonimmigrant workers being sponsored for Lawful Permanent Resident (LPR) status (and their H-4 dependents) to extend their nonimmigrant stay beyond the otherwise applicable 6-year limit under the American Competitiveness in the 21st Century Act of 2000 (AC21).
- The ability of workers who have pending applications for adjustment of status to change employers or jobs without endangering the approved Form I-140 petitions filed (under INA 204(j)) on their behalf.
- The ability of H-1B nonimmigrant workers to change jobs or employers, including:
- beginning employment with new H-1B employers on filing an H-1B portability petition; and
- allowing H-1B employers to file successive H-1B portability petitions (bridge petitions) and clarifying how these petitions affect lawful status and work authorization.
- How H-1B nonimmigrant workers are counted against the annual H-1B numerical cap, including methods for:
- calculating when H-1B nonimmigrant workers may access remainder time, allowing them to use their full period of H-1B admission;
- determining which H-1B nonimmigrant workers are "cap-exempt" as a result of previously being counted against the cap; and
- determining which H-1B nonimmigrant workers are cap-exempt due to their employment at an institution of higher education, a nonprofit entity related to or affiliated with such an institution, or a governmental or nonprofit research organization, including a revision to the definition of the term "related or affiliated nonprofit entity."
- The ability of H-1B nonimmigrant workers disclosing information in aid of, or otherwise participating in, investigations regarding alleged violations of Labor Condition Application (LCA) obligations in the H-1B program to provide documentary evidence to USCIS to demonstrate that their resulting failure to maintain H-1B status was due to "extraordinary circumstances."
- The circumstances under which an approved Form I-140 petition remains valid, even after the petitioner withdraws the petition or the petitioner's business terminates, including for purposes of:
- status extension applications filed on behalf of the beneficiary;
- job portability of H-1B nonimmigrants; and
- job portability under Section 204(j) of the Immigration and Nationality Act (INA) (8 U.S.C. 1154(j)).
On December 31, 2015, US Citizenship and Immigration Services (USCIS) issued a notice of proposed rulemaking (NPRM) intended to improve employment-based nonimmigrant and immigrant visa programs (see Legal Update, USCIS Proposed Rule Impacts Employment-Based Immigrant and Nonimmigrant Visa Categories).
Modifications to the December 31, 2015 NPRM include:
- Revising:
- 8 CFR 204.5(e)(2)(iv), identifying when error related to the approval of an employment-based immigrant visa petition can lead to loss of a priority date;
- 8 CFR 204.5(p) governing requests for Employment Authorization Documents (EADs) in compelling circumstances;
- 8 CFR 214.1(l), concerning authorized grace periods that may immediately precede and follow periods of nonimmigrant petition validity and other authorized periods of stay;
- 8 CFR 214.2(h)(13)(iii)(C), governing how to calculate the time spent physically outside the US during the validity of an H-1B petition that will not count against an individual's maximum authorized period of stay in H-1B status;
- 8 CFR 214.2(h)(13)(iii)(D), governing when a nonimmigrant may be eligible for H-1B status in 1-year increments beyond the six-year limitation that otherwise applies; and
- 8 CFR 214.2(h)(13)(iii)(E), governing when a nonimmigrant may be eligible for H-1B status in 3-year increments beyond the six-year limitation that otherwise applies.
- Codifying 8 CFR 214.2(h)(4)(v)(C), setting standards for H-1B adjudication absent the beneficiary's full licensure.
- Editing 8 CFR 214.2(h)(8)(ii)(F) and (h)(19), defining which entities are:
- nonprofit entities that are related to or affiliated with institutions of higher education; and
- governmental research organizations for purposes of the H-1B visa program.
- Amending:
- 8 CFR 214.2(h)(20), discussing eligibility for extensions of stay in H-1B status or change of status to other nonimmigrant classifications by beneficiaries who faced retaliatory action from their employers;
- 8 CFR 245.25(a), governing the circumstances in which an individual with a pending application for adjustment of status can move to a job in the same or a similar occupational classification;
- 8 CFR 274a.13(a), facilitating USCIS's ability to notify the public of changes in concurrent filing procedures for EAD applications; and
- 8 CFR 274a.13(d), clarifying timeliness and termination rules for the automatic extension of certain EAD renewal applicants.
- Making technical changes to:
- 8 CFR 214.2(h)(19)(i), (ii), (v), (vi) and (vii) to update the amount of the ACWIA fee applicable to certain H-1B petitions in accordance with statutory amendments, as well as procedures for submitting the fee to USCIS, or claiming an exemption from the fee, to conform with current procedures; and
- 8 CFR 214.2(h)(19)(iii) to include other entities that are statutorily exempt from the ACWIA fee, and thus to conform the regulation to INA 214(c)(9)(A), 8 U.S.C. 1184(c)(9)(A), as amended by section 1 of Pub. L. 106-311.
The final rule is effective January 17, 2017.