AC21 Act

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.

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.

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.”

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.

On November 18, 2016, the Department of Homeland Security (DHS) 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 Immigrant Workers.” The new rule went into effect on January 17, 2017. In this article, we will discuss the amendments to the regulations found in 8 C.F.R. 274a.13 regarding changes to the processing of applications for employment authorization and regarding automatic extensions of Employment Authorization Documents (EADs) in certain cases.

The United States Citizenship and Immigration Services (USCIS) has a policy for applicants for Employment Authorization Documents (EADs) to make a service request for a long-pending Form I-765, Application for Employment Authorization. In this article, we will explain the rules for when an EAD applicant may make a service request on a pending EAD application with the Form I-765, including in the context of the new automatic 180-day extension of EADs for certain renewal applicants. We will rely on the USCIS guidance on the issue titled “Tip Sheet: Employment Authorization Applications Pending More than 75 Days” (last updated Feb. 1, 2017).

Under section 204(j) of the Immigration and Nationality Act (INA), the beneficiary of an approved employment-based immigrant visa petition with an adjustment of status application that has been pending for at least 180 days may, under certain circumstances, exercise Form I-140, Immigrant Petition for Alien Worker portability. The portability provision found in section 204(j) – which was codified in section 106(c) of the American Competitiveness in the 21st Century Act (AC21) – grants job flexibility to these employment-based adjustment of status applicants by allowing them to port their Forms I-140 to new employers. In this article, we will examine the Form I-140 portability provisions. This article includes information found in the November 18, 2016, rule titled “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers.”

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.

The American Competitiveness in the Twenty-First Century Act of 2000 (AC21) added to the Immigration and Nationality Act (INA) provisions for what is called “H1B portability.” H1B portability allows certain individuals in the United States on H1B status to change H1B employers. The United States Citizenship and Immigration Services (USCIS) created agency guidance over the years to adjudicate H1B portability petitions. On January 17, 2017, new regulations took effect which finally codified USCIS practices regarding many AC21 provisions, including H1B portability. In this article, we will examine the statutes, agency guidance, and new regulations for an up-to-date look at H1B portability.

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.