On November 18, 2016, the Department of Homeland Security published a new final rule in the Federal Register (FR) titled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers,” (see 81 FR 82398). The rule came into effect on January 17, 2017. In this article, we will provide an overview of the contents of the final rule with links to articles that go into more detail on its contents.
American Competitiveness in the 21st Century Act (AC21)
Signed into law in 2000, the American Competitiveness in the 21st Century Act (AC21) modernized immigration laws pertaining to foreign workers in the United States. AC21 makes greatly H-1B visa and Form I-140 portability, allowing foreign workers in certain situations the flexibility to change employers. AC21 also has provisions for extensions of status for H-1B visa-holders who are applying for adjustment of status to certain employment-based immigrant visa preference categories, and are only unable to adjust status due to annual caps on available employment-based immigrant visas or slow processing times. AC21 creates a separate H-1B visa pool for applicants holding master’s degrees, increasing the chances that advanced degree-holders may be successful in obtaining H-1B visas. AC21 also created a cap-exemption for H-1B petitions submitted by certain institutions of higher education and certain non-profit and governmental research organizations, thereby making it easier for them to employ talented foreign workers.
On our website, you will find numerous articles about these subjects and more relating to AC21:
Workers in the United States on nonimmigrant H1B status are limited to a maximum stay of six years in the United States on H1B status. After the expiration of the six year period (the tenure), he or she must remain outside of the USA for at least one year, before they could qualify, if petitioned for by a qualified employer, to obtain another H1B visa, which would again be limited by a new 6 year tenure
The number of available H1B visas in a fiscal year is capped at 65,000. However, H1B petition beneficiaries with employment offers from certain “institution(s) of higher education or affiliated nonprofit entity(s),” or from “nonprofit research organization(s) or “governmental research organization(s)” are exempt from the annual cap on H1B visas. Furthermore, under certain circumstances, an organization that would not qualify as an employer covered under this rule may nevertheless be eligible if it is seeking the H1B visa for an employee whose place of work will be at a qualifying institution or organization.
In this article, we will discuss 20 U.S.C. 1101(a), the statute upon which the H1B cap exemption statutes found in sections 214(g)(5)(A) and (C) of the INA rely upon for the definition of “U.S. institution of higher education.”
Enhanced H1B portability, making it far easier than before for H1B Visa-holders to change employers, was introduced by the American Competitiveness in the Twenty First Century Act of 2000 (AC21). AC21 did not introduce the concept of H1B portability, for it was possible for a nonimmigrant in H1B status to port his or her status to a new employer prior to the enactment of AC21.
Under the new final rule, the DHS amended regulations regarding grace periods for certain nonimmigrants. The new 8 C.F.R. 214.1(l)(1) has been amended to provide two 10-day grace periods for E1, E2, E3, L1, and TN nonimmigrants . Under the new 8 C.F.R. 214.1(l)(2), the DHS may, under certain circumstances, authorize a 60-day grace period for persons in the E1, E2, E3, H1B, H1B1, L1, O1, and TN nonimmigrant classifications. In this article, we will examine how the 10- and 60-day nonimmigrant grace periods in the new final rule.
This article will focus on the amended regulations in 8 C.F.R. 204.5(p). These regulations allow for certain alien beneficiaries of employment-based immigrant visa petitions who are also in certain nonimmigrant statuses to be eligible for employment authorization in compelling circumstances. In this article, we will examine the new regulations and their implications for those who may benefit from them.
I-140 work-based employment visa petition portability found in section 106(c) of the American Competitiveness in the 21st Century Act (AC21) is an important tool for adjustment of status applicants for work-based employment visas who find their adjustment of status applications pending for at least 180 days from filing. With a long-pending adjustment of status application, the applicant for a work-based employment visa may switch jobs without rendering his or her Form I-140, Immigrant Petition for Alien Worker invalid, provided that the job is in the “same or similar” occupational classification as the job on the I-140 petition.
On March 18, 2016, the United States Citizenship and Immigration Services (USCIS) released a new final Policy Memorandum titled “Determining Whether a New Job is in ‘the Same or a Similar Occupational Classification’ for Purposes of Section 204(j) Job Portability.” The Memo sets for USCIS’s adjudicative policies for determining whether a new job is in the “same or a similar” occupational classification as the job described on an approved I-140 Petition for purpose of porting the I-140 Petition to a new employer under section 204(j) of the Immigration and Nationality Act (INA). The Memo supersedes prior USCIS agency guidance regarding the “same or similar” requirement under section 204(j). USCIS will apply the Memo to all applications pending or filed with USCIS on or after March 21, 2016. In this article, we will review the Memo and explain its effect on section 204(j) adjudications.
In this article, we will examine the amended regulations in 8 C.F.R. 204.5(d) and (e) relating to establishing priority dates and priority date retention. We will also examine the amended regulations in 8 C.F.R. 205.1(a)(3)(iii)(C) and (D) regarding the retention of employment-based immigrant visa petitions. To do so, we will examine the discussion of the new amended regulation and the text of the regulation itself. For a comprehensive list of articles on other changes in the final rule, please refer to the overview that we provided a link to in the opening paragraph of this article.
In Mantena v. Johnson, — F.3d —-, (2d Cir. 2015), the Second Circuit held that United States Citizenship and Immigration Services (USCIS) issued an important decision regarding notification requirements for aliens with approved I-140 petitions who have exercised I-140 portability. It held that if an employee with an approved I-140 petition exercises I-140 portability under The American Competitiveness in the 21st Century Act of 2000 (AC21), and USCIS decides to revoke the I-140 petition, notice must be provided to both the petition beneficiary and the beneficiary’s new employer.