[Federal Register Volume 80, Number 251 (Thursday, December 31, 2015)]
[Proposed Rules]
[Pages 81900-81945]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-32666]
[[Page 81899]]
Vol. 80
Thursday,
No. 251
December 31, 2015
Part III
Department of Homeland Security
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8 CFR Parts 204, 205, 214, et al.
Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program
Improvements Affecting High-Skilled Nonimmigrant Workers; Proposed
Rules
Federal Register / Vol. 80 , No. 251 / Thursday, December 31, 2015 /
Proposed Rules
[[Page 81900]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 204, 205, 214, 245 and 274a
[CIS No. 2571-15; DHS Docket No. USCIS-2015-0008]
RIN 1615-AC05
Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program
Improvements Affecting High-Skilled Nonimmigrant Workers
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Proposed rule.
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SUMMARY: The Department of Homeland Security (DHS) is proposing to
amend its regulations related to certain employment-based immigrant and
nonimmigrant visa programs. The proposed amendments would provide
various benefits to participants in those programs, including: Improved
processes for U.S. employers seeking to sponsor and retain immigrant
and nonimmigrant workers, greater stability and job flexibility for
such workers, and increased transparency and consistency in the
application of agency policy related to affected classifications. Many
of these changes are primarily aimed at improving the ability of U.S.
employers to hire and retain high-skilled workers who are beneficiaries
of approved employment-based immigrant visa petitions and are waiting
to become lawful permanent residents (LPRs), while increasing the
ability of such workers to seek promotions, accept lateral positions
with current employers, change employers, or pursue other employment
options.
First, DHS proposes to amend its regulations consistent with
certain worker portability and other provisions in the American
Competitiveness in the Twenty-first Century Act of 2000 (AC21), as
amended, as well as the American Competitiveness and Workforce
Improvement Act of 1998 (ACWIA). These proposed amendments would
clarify and improve longstanding agency policies and procedures--
previously articulated in agency memoranda and precedent decisions--
implementing sections of AC21 and ACWIA related to certain foreign
workers, including sections specific to workers who have been sponsored
for LPR status by their employers. In so doing, the proposed rule would
enhance consistency among agency adjudicators and provide a primary
repository of governing rules for the regulated community. In addition,
the proposed rule would clarify several interpretive questions raised
by AC21 and ACWIA.
Second, consistent with existing DHS authorities and the goals of
AC21 and ACWIA, DHS proposes to amend its regulations governing certain
employment-based immigrant and nonimmigrant visa programs to provide
additional stability and flexibility to employers and workers in those
programs. The proposed rule would, among other things: improve job
portability for certain beneficiaries of approved employment-based
immigrant visa petitions by limiting the grounds for automatic
revocation of petition approval; further enhance job portability for
such beneficiaries by increasing their ability to retain their priority
dates for use with subsequently approved employment-based immigrant
visa petitions; establish or extend grace periods for certain high-
skilled nonimmigrant workers so that they may more easily maintain
their nonimmigrant status when changing employment opportunities; and
provide additional stability and flexibility to certain high-skilled
workers by allowing those who are working in the United States in
certain nonimmigrant statuses, are the beneficiaries of approved
employment-based immigrant visa petitions, are subject to immigrant
visa backlogs, and demonstrate compelling circumstances to
independently apply for employment authorization for a limited period.
These and other proposed changes would provide much needed flexibility
to the beneficiaries of employment-based immigrant visa petitions, as
well as the U.S. employers who employ and sponsor them for permanent
residence.
Finally, to provide additional certainty and stability to certain
employment-authorized individuals and their U.S. employers, DHS is also
proposing changes to its regulations governing the processing of
applications for employment authorization to minimize the risk of any
gaps in such authorization. These changes would provide for the
automatic extension of the validity of certain Employment Authorization
Documents (EADs or Forms I-766) for an interim period upon the timely
filing of an application to renew such documents. At the same time, in
light of national security and fraud concerns, DHS is proposing to
remove regulations that provide a 90-day processing timeline for EAD
applications and that require the issuance of interim EADs if
processing extends beyond the 90-day mark.
DATES: Written comments must be received on or before February 29,
2016.
ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2015-0008, by one of the following methods:
Federal eRulemaking Portal: You may submit comments to
USCIS by visiting http://www.regulations.gov. Follow the instructions
for submitting comments.
Email: You may submit comments directly to USCIS by
emailing them to: [email protected]. Please include DHS Docket No.
USCIS-2015-0008 in the subject line of the message.
Mail: You may submit comments directly to USCIS by mailing
them to: Laura Dawkins, Chief, Regulatory Coordination Division, Office
of Policy and Strategy, U.S. Citizenship and Immigration Services,
Department of Homeland Security, 20 Massachusetts Avenue NW.,
Washington, DC 20529. This mailing address may be used for paper, disk,
or CD-ROM submissions. To ensure proper handling, please reference DHS
Docket No. USCIS-2015-0008 on your correspondence.
Hand Delivery/Courier: You may submit comments directly to
USCIS by hand delivery or courier to: Laura Dawkins, Chief, Regulatory
Coordination Division, Office of Policy and Strategy, U.S. Citizenship
and Immigration Services, Department of Homeland Security, 20
Massachusetts Avenue NW., Washington, DC 20529. The contact telephone
number is (202) 272-8377. To ensure proper handling, please reference
DHS Docket No. USCIS-2015-0008 on your delivery.
FOR FURTHER INFORMATION CONTACT: Kathleen Angustia or Nikki Lomax-
Larson, Adjudications Officers (Policy), Office of Policy and Strategy,
U.S. Citizenship and Immigration Services, Department of Homeland
Security, 20 Massachusetts Avenue NW., Washington, DC 20529. The
contact telephone number is (202) 272-8377.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
II. Executive Summary
A. Purpose and Summary of the Regulatory Action
B. Legal Authority
C. Costs and Benefits
III. Background
A. Permanent Employment-Based Immigration
1. Employment-Based Immigrant Visa Preference Categories
2. The Employment-Based Immigrant Visa Process
B. Nonimmigrant Visa Classifications
1. The H-1B Nonimmigrant Visa Classification
2. Other Relevant Nonimmigrant Visa Classifications
[[Page 81901]]
C. ACWIA and AC21
1. The American Competitiveness and Workforce Improvement Act of
1998
2. The American Competitiveness in the Twenty-first Century Act
of 2000
a. AC21 Provisions Relating to Employment-Based Immigrant Visas
b. AC21 Provisions Seeking to Improve the H-1B Nonimmigrant
Worker Classification
i. Exemptions From the H-1B Numerical Cap
ii. Application of the H-1B Numerical Cap to Persons Previously
Counted
iii. H-1B Portability
D. The Processing of Applications for Employment Authorization
Documents
E. The Increasing Damage Caused by Immigrant Visa Backlogs
IV. Proposed Regulatory Changes
A. Proposed Implementation of AC21 and ACWIA
1. Extending H-1B Nonimmigrant Status for Certain Individuals
Who Are Being Sponsored for Lawful Permanent Residence
a. H-1B Extensions for Individuals Affected by the Per-Country
Limitations
b. H-1B Extensions for Individuals Affected by Lengthy
Adjudication Delays
2. Job Portability Under AC21 for Certain Applicants for
Adjustment of Status
3. Job Portability for H-1B Nonimmigrant Workers
4. Calculating the H-1B Admission Period
5. Exemptions From the H-1B Numerical Cap Under AC21 and ACWIA
a. Employers Not Subject to H-1B Numerical Limitations
b. Counting Previously Exempt H-1B Nonimmigrant Workers
6. Whistleblower Protections in the H-1B Program
B. Additional Changes to Further Improve Stability and Job
Flexibility for Certain Foreign Workers
1. Revocation of Approved Employment-Based Immigrant Visa
Petitions
2. Retention of Priority Dates
3. Nonimmigrant Grace Periods
a. Extending 10-Day Grace Periods to Certain Nonimmigrant
Classifications
b. Providing a 60-Day Grace Period to Certain Nonimmigrant
Classifications
4. Eligibility for Employment Authorization in Compelling
Circumstances
5. H-1B Licensing Requirements
C. Processing of Applications for Employment Authorization
Documents
1. Automatic Extensions of EADs in Certain Circumstances
2. Elimination of 90-Day Processing Timeframe and Interim EADs
3. Conforming and Technical Amendments
V. Statutory and Regulatory Requirements
A. Executive Orders 12866 and 13563 (Regulatory Planning and
Review)
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act of 1995
D. Small Business Regulatory Enforcement Fairness Act of 1996
E. Executive Order 13132 (Federalism)
F. Executive Order 12988 (Civil Justice Reform)
G. Paperwork Reduction Act
I. Public Participation
All interested parties are invited to participate in this
rulemaking by submitting written data, views, or comments on all
aspects of this proposed rule. DHS and USCIS also invite comments that
relate to the economic, environmental, or federalism effects that might
result from this proposed rule. To provide the most assistance to USCIS
in implementing these changes, comments should reference a specific
portion of the proposed rule, explain the reason for any recommended
change, and include data, information, or authority that supports such
recommended change.
Instructions: All submissions must include the agency name and DHS
Docket No. USCIS-2015-0008 for this rulemaking. Regardless of the
method used for submitting comments or material, all submissions will
be posted, without change, to the Federal eRulemaking Portal at http://www.regulations.gov, and will include any personal information you
provide. Submitted information will be made public. You may thus wish
to consider limiting the amount of personal information that you
provide in any voluntary public comment submission you make to DHS. DHS
may withhold information provided in comments from public viewing if
DHS determines that such information is offensive or may impact the
privacy of an individual. For additional information, please read the
Privacy Act notice that is available via the link in the footer of
http://www.regulations.gov.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov and enter this
rulemaking's eDocket number: USCIS-2015-0008.
II. Executive Summary
A. Purpose and Summary of the Regulatory Action
DHS is proposing to amend its regulations related to certain
employment-based immigrant and nonimmigrant visa programs. The proposed
rule is intended to benefit U.S. employers and foreign workers
participating in these programs, by streamlining the processes for
employer sponsorship of nonimmigrant workers for lawful permanent
resident (LPR) status, increasing job portability and otherwise
providing stability and flexibility for such workers, and providing
additional transparency and consistency in the application of agency
policies and procedures related to these programs. These changes are
primarily intended to better enable U.S. employers to employ and retain
high-skilled workers who are beneficiaries of employment-based
immigrant visa petitions, while increasing the ability of such workers
to further their careers by accepting promotions, changing positions
with current employers, changing employers, and pursuing other
employment opportunities.
First, this proposed rule would largely conform DHS regulations to
longstanding agency policies and procedures established in response to
certain sections of the American Competitiveness and Workforce
Improvement Act of 1998 (ACWIA), Public Law 105-277, div. C, tit. IV,
112 Stat. 2681, and the American Competitiveness in the Twenty-first
Century Act of 2000 (AC21), Public Law 106-313, 114 Stat. 1251, as
amended by the 21st Century Department of Justice Appropriations
Authorization Act, Public Law 107-273, 116 Stat. 1758 (2002). These
sections were intended, among other things, to provide greater
flexibility and job portability to certain nonimmigrant workers,
particularly those who have been sponsored for LPR status as an
employment-based immigrant, while enhancing opportunities for
innovation and expansion, maintaining U.S. competitiveness, and
protecting U.S. workers. The proposed rule would further clarify and
improve agency policies and procedures in this area--policies and
procedures that have long been set through a series of policy memoranda
and a precedent decision of the USCIS Administrative Appeals Office. By
clarifying such policies in regulation, DHS would provide greater
transparency and certainty to affected employers and workers, while
increasing consistency among agency adjudications. In addition, the
proposed rule would clarify several interpretive questions raised by
AC21 and ACWIA.
Specifically, this proposed rule would clarify and improve policies
and practices related to:
The ability of H-1B nonimmigrant workers who are being
sponsored for lawful permanent residence (and their dependents in H-4
nonimmigrant status) to extend their nonimmigrant status beyond the
otherwise-applicable 6-year limit pursuant to AC21.
The ability of certain workers who have pending
applications for adjustment of status to change employers or jobs
without endangering the approved employment-based immigrant visa
petitions filed on their behalf.
The ability of H-1B nonimmigrant workers to change jobs or
employers,
[[Page 81902]]
including: (1) The ability to begin employment with new H-1B employers
that have filed non-frivolous petitions for new H-1B employment; and
(2) the ability of H-1B employers to file successive H-1B portability
petitions (often referred to as ``bridge petitions'') and how these
petitions affect lawful status and work authorization.
The way in which H-1B nonimmigrant workers are counted
against the annual H-1B numerical cap, including: (1) The method for
calculating when such workers may access so-called ``remainder time''
(i.e., time when they were physically outside the United States), thus
allowing them to use their full period of H-1B status; and (2) the
method for determining which H-1B nonimmigrant workers are ``cap-
exempt'' as a result of previously being counted against the cap.
The method for determining which H-1B nonimmigrant workers
are exempt from the H-1B numerical cap due to their employment with 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'' for such purposes.
The ability of H-1B nonimmigrant workers who are
disclosing information in aid of, or otherwise participating in,
investigations regarding alleged violations of Labor Condition
Application 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.''
Except where changes to current policies and practices are noted in
the preamble of this proposed rule, DHS intends these proposals to
effectively capture the longstanding policies and procedures that have
developed since enactment of AC21 and ACWIA. The Department welcomes
comments that identify any such proposals that commenters believe are
unintentionally inconsistent with current practices, so that any such
inconsistencies can be resolved in the final rule.
Second, this rulemaking builds on the provisions listed above by
proposing additional changes consistent with the immigration laws to
further provide stability and flexibility in certain immigrant and
nonimmigrant visa categories. These provisions would improve the
ability of certain foreign workers, particularly those who are
successfully sponsored for LPR status by their employers, to accept new
employment opportunities, pursue normal career progression, better
establish their lives in the United States, and contribute more fully
to the U.S. economy. The changes would also provide certainty in the
regulated community and improve consistency across agency
adjudications, thereby enhancing the agency's ability to fulfill its
responsibilities related to U.S. employers and certain foreign workers.
Specifically, this proposed rule would provide the following:
Retention of employment-based immigrant visa petitions.
DHS proposes to enhance job portability for certain workers who have
approved immigrant visa petitions in the employment-based first
preference (EB-1), second preference (EB-2), and third preference (EB-
3) categories but who are unable to obtain those visas in the
foreseeable future due to significant immigrant visa backlogs.
Specifically, DHS proposes to amend its automatic revocation
regulations so that immigrant visa petitions that have been approved
for 180 days or more would no longer be subject to automatic revocation
based solely on withdrawal by the petitioner or termination of the
petitioner's business. As long as the petition approval has not been
revoked for fraud, material misrepresentation, the invalidation or
revocation of a labor certification, or USCIS error, the petition will
generally continue to be valid to the beneficiary for various job
portability and status extension purposes under the immigration laws.
Such a beneficiary, however, must obtain a new job offer and may need
another immigrant visa petition approved on his or her behalf to
ultimately obtain status as an LPR.
Retention of priority dates. DHS proposes to further
enhance job portability for workers with approved EB-1, EB-2, and EB-3
immigrant visa petitions by providing greater clarity regarding when
they may retain the priority dates assigned to those petitions and
effectively transfer those dates to new and subsequently approved
employment-based immigrant visa petitions. As with the immediately
preceding provision, priority date retention generally would be
available so long as the initial immigrant visa petition was approved
and this approval has not been revoked for fraud, material
misrepresentation, the invalidation or revocation of a labor
certification, or USCIS error. This provision would improve the ability
of certain workers to accept promotions, change employers, or accept
other employment opportunities without fear of losing their place in
line for immigrant visas based on the skills they contribute to the
U.S. economy.
Nonimmigrant grace periods. To enhance job portability for
certain high-skilled nonimmigrants, DHS proposes to generally establish
a one-time grace period, during an authorized validity period, of up to
60 days whenever employment ends for individuals holding E-1, E-2, E-3,
H-1B, H-1B1, L-1, or TN nonimmigrant status. This proposal would allow
these high-skilled workers to more readily pursue new employment should
they be eligible for other employer-sponsored nonimmigrant
classifications or for the same classification with a new employer.
Conversely, the proposal allows U.S. employers to more easily
facilitate changes in employment for existing or newly recruited
nonimmigrant workers. The individual may not work during the grace
period, unless otherwise authorized by regulation. As needed, DHS in
its discretion may eliminate or shorten the 60-day period on a case-by-
case basis.
Eligibility for employment authorization in compelling
circumstances. DHS also proposes to provide additional stability and
flexibility to certain high-skilled nonimmigrant workers in the United
States who are the beneficiaries of approved employment-based immigrant
visa petitions but who cannot obtain an immigrant visa number due to
statutory limits on immigrant visa issuance and are experiencing
compelling circumstances. Specifically, DHS proposes to allow such
beneficiaries in the United States on E-3, H-1B, H-1B1, L-1, or O-1
nonimmigrant status to apply for separate employment authorization for
a limited period if there are compelling circumstances that, in the
discretionary determination of DHS, justify the consideration of such
employment authorization.
H-1B licensing. DHS proposes to clarify exceptions to the
requirement that make approval of an H-1B petition contingent upon
licensure where such licensure is required to fully perform the duties
of the specialty occupation. The proposed rule would generally allow a
petitioning employer that has filed an H-1B petition for an unlicensed
worker to meet the licensure requirement by demonstrating that the
worker has filed a request for such license but is unable to obtain it,
or is unable to file a request for such a license, because a state or
locality requires a social security number or the issuance of
employment authorization before accepting or approving such requests.
The proposed rule also clarifies that DHS may approve an H-1B
[[Page 81903]]
petition on behalf of an unlicensed worker if he or she will work in a
State that allows such individuals to be employed in the occupation
under the supervision of licensed senior or supervisory personnel.
As noted above, these changes would help improve various
employment-based immigrant and nonimmigrant visa classifications,
including by making it easier to hire and retain nonimmigrant workers
who have approved immigrant visa petitions and giving such workers
additional career options as they wait for immigrant visa numbers to
become available. These improvements are increasingly important
considering the lengthy and growing backlogs of immigrant visas.
Finally, to provide additional stability and certainty to U.S.
employers and individuals eligible for employment authorization in the
United States, DHS is also proposing several changes to its regulations
governing its processing of applications for employment authorization.
First, to minimize the risk of any gaps in employment authorization,
DHS proposes to automatically extend the validity of Employment
Authorization Documents (EADs or Forms I-766) in certain circumstances
based on the timely filing of an application to renew such EADs.
Specifically, DHS would automatically extend the employment
authorization and validity of existing EADs issued to certain
employment-eligible individuals for up to 180 days from the date of the
cards' expiration, so long as: (1) A renewal application is filed based
on the same employment authorization category as the previously issued
EAD (or the renewal application is for an individual approved for
Temporary Protected Status (TPS) whose EAD was issued pursuant to 8 CFR
274a.12(c)(19)); (2) such renewal application is timely filed prior to
the expiration of the EAD and remains pending; and (3) the individual's
eligibility for employment authorization continues beyond the
expiration of his or her EAD, and an independent adjudication of the
individual's underlying eligibility is not a prerequisite to the
extension of employment authorization. At the same time, DHS would
eliminate the current regulatory provisions that require adjudication
of EAD applications within 90 days of filing and that authorize interim
EADs in cases where such adjudications are not conducted within the 90-
day timeframe. These changes would provide enhanced stability and
certainty to employment-authorized individuals and their employers,
while reducing opportunities for fraud and protecting the security-
related processes undertaken for each EAD application.
B. Legal Authority
The authority of the Secretary of Homeland Security (Secretary) for
these regulatory amendments is found in various sections of the
Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., ACWIA,
AC21, and the Homeland Security Act of 2002 (HSA), Public Law 107-296,
116 Stat. 2135, 6 U.S.C. 101 et seq. General authority for issuing the
proposed rule is found in section 103(a) of the INA, 8 U.S.C. 1103(a),
which authorizes the Secretary to administer and enforce the
immigration and nationality laws, as well as section 102 of the HSA, 6
U.S.C. 112, which vests all of the functions of DHS in the Secretary
and authorizes the Secretary to issue regulations. Further authority
for the regulatory amendments in the proposed rule is found in:
Section 205 of the INA, 8 U.S.C. 1155, which grants the
Secretary broad discretion in determining whether and how to revoke any
immigrant visa petition approved under section 204 of the INA, 8 U.S.C.
1154;
Section 214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), which
authorizes the Secretary to prescribe by regulation the terms and
conditions of the admission of nonimmigrants;
Section 274A(h)(3)(B) of the INA, 8 U.S.C. 1324a(h)(3)(B),
which recognizes the Secretary's authority to extend employment
authorization to noncitizens in the United States;
Section 413(a) of ACWIA, which amended Section
212(n)(2)(C) of the INA, 8 U.S.C. 1182(n)(2)(C), to authorize the
Secretary to provide certain whistleblower protections to H-1B
nonimmigrant workers;
Section 414 of ACWIA, which added section 214(c)(9) of the
INA, 8 U.S.C. 1184(c)(9), to authorize the Secretary to impose a fee on
certain H-1B petitioners to fund the training and education of U.S.
workers;
Section 103 of AC21, which amended section 214(g) of the
INA, 8 U.S.C. 1184(g), to provide: (1) An exemption from the H-1B
numerical cap for certain H-1B nonimmigrant workers employed at
institutions of higher education, nonprofit entities related to or
affiliated with such institutions, and nonprofit or governmental
research organizations; and (2) that a worker who has been counted
against the H-1B numerical cap within the 6 years prior to petition
approval will not again be counted against the cap unless the
individual would be eligible for a new 6-year period of authorized H-1B
admission.
Section 104(c) of AC21, which authorizes the extension of
H-1B status beyond the general 6-year maximum for H-1B nonimmigrant
workers who have approved EB-1, EB-2, or EB-3 immigrant visa petitions
but are subject to backlogs due to application of certain ``per-
country'' limitations on immigrant visas;
Section 105 of AC21, which added what is now section
214(n) of the INA, 8 U.S.C. 1184(n),\1\ to allow an H-1B nonimmigrant
worker to begin concurrent or new H-1B employment upon the filing of a
timely, non-frivolous H-1B petition;
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\1\ Section 8(a)(3) of the Trafficking Victims Protection
Reauthorization Act of 2003, Public Law 108-193, (Dec. 19, 2003),
redesignated section 214(m) of the INA, 8 U.S.C. 1184(m), as section
214(n) of the INA, 8 U.S.C. 1184(n).
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Sections 106(a) and (b) of AC21, which, as amended,
authorize the extension of H-1B status beyond the general 6-year
maximum for H-1B nonimmigrant workers who have been sponsored for
permanent residence by their employers and who are subject to certain
lengthy adjudication or processing delays;
Section 106(c) of AC21, which added section 204(j) of the
INA, 8 U.S.C. 1154(j), to authorize certain beneficiaries of approved
EB-1, EB-2, and EB-3 immigrant visa petitions who have filed
applications for adjustment of status to change jobs or employers
without invalidating their approved petitions; and
Section 101(b)(1)(F) of the HSA, 6 U.S.C. 111(b)(1)(F),
which establishes as a primary mission of DHS the duty to ``ensure that
the overall economic security of the United States is not diminished by
efforts, activities, and programs aimed at securing the homeland.''
C. Costs and Benefits
Taken together, the proposed amendments aim to reduce unnecessary
disruption to businesses and families caused by immigrant visa
backlogs, as described in Section III.E. The benefits from these
proposed amendments add value to the U.S. economy by retaining high-
skilled workers who make important contributions to the U.S. economy,
including technological advances and research and development
endeavors, which are highly correlated with overall economic growth and
job creation.\2\ For more information, the
[[Page 81904]]
public may consult the Regulatory Impact Analysis, reflecting that
although there may be short-term negative or neutral impacts, the
addition of high-skilled workers presents long-term benefits to the
U.S. economy.\3\
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\2\ Hart, David, et al., ``High-tech Immigrant Entrepreneurship
in the United States,'' Small Business Administration Office of
Advocacy (July 2009), available at: https://www.sba.gov/sites/default/files/rs349tot_0.pdf. See also Fairlie, Robert., ``Open for
Business: How Immigrants are Driving Small Business Creation in the
United States,'' The Partnership for a New American Economy (August
2012), available at: http://www.renewoureconomy.org/sites/all/themes/pnae/openforbusiness.pdf; ``Immigrant Small Business Owners a
Significant and Growing Part of the Economy,'' Fiscal Policy
Institute (June 2012), available at: http://www.fiscalpolicy.org/immigrant-small-business-owners-FPI-20120614.pdf; Anderson, Stuart,
``American Made 2.0 How Immigrant Entrepreneurs Continue to
Contribute to the U.S. Economy,'' National Venture Capital
Association (June 2013), available at: http://nvca.org/research/stats-studies/.
\3\ ``The Economic Impact of S. 744, the Border Security,
Economic Opportunity, and Immigration Modernization Act,'' June 18,
2013, available at http://www.cbo.gov/sites/default/files/cbofiles/attachments/44346-Immigration.pdf.
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DHS has analyzed potential costs of these proposed regulations and
has determined that the changes proposed by DHS have direct impacts to
individual beneficiaries of employment-based nonimmigrant and immigrant
visa petitions in the form of filing costs, consular processing costs,
and potential for longer processing times for EAD applications during
filing surges, among other costs. Due to the fact that some of these
petitions are filed by a sponsoring employer, this rule also has
indirect effects on employers in the form of employee replacement
costs.
The proposed amendments would clarify and amend policies and
practices in various employment-based immigrant and nonimmigrant visa
programs, with the primary aim of providing additional stability and
flexibility to both foreign workers and U.S. employers participating in
those programs. In part, the proposed rule clarifies and improves upon
longstanding policies adopted in response to the enactment of ACWIA and
AC21 to ensure greater consistency across agency adjudications and
provide greater certainty to regulated employers and workers. These
changes would provide various benefits to U.S. employers and certain
foreign workers, including the enhanced ability of such workers to
accept promotions or change positions with their employers, as well as
change employers or pursue other employment opportunities. These
proposals also benefit the regulated community by providing instructive
rules governing: Extensions of stay for certain H-1B nonimmigrant
workers facing long delays in the immigrant visa process; the ability
of workers who have been sponsored by their employers for LPR status to
change jobs or employers 180 days after they file applications for
adjustment of status; the circumstances under which H-1B nonimmigrant
workers may begin employment with a new employer; how H-1B nonimmigrant
workers count time toward maximum periods of stay; which entities are
properly considered related to or affiliated with institutions of
higher education for purposes of the H-1B program; and when H-1B
nonimmigrant workers can claim whistleblower protections. The increased
clarity provided by these rules will enhance the ability of these
workers to take advantage of the job portability and related provisions
in AC21 and ACWIA.
The proposed rule would also amend the current regulatory scheme
governing certain immigrant and nonimmigrant visa programs to enhance
job portability for certain workers and improve the ability of U.S.
businesses to retain highly valued individuals. These benefits are
achieved by: Proposing a revised method to retain the approval of
employment-based immigrant visa petitions already adjudicated by DHS
and to retain priority dates of these approved petitions for purposes
of immigrant visa or adjustment of status processing; providing a grace
period to certain nonimmigrants to enhance their ability to seek an
authorized change of employment; establishing a means for certain
nonimmigrant workers with approved employment-based immigrant visa
petitions to directly request separate employment authorization for a
limited time when facing compelling circumstances; and identifying
exceptions to licensing requirements applicable to certain H-1B
nonimmigrant workers.
Finally, the proposed rule would also amend current regulations
governing the processing of applications for employment authorization
to provide additional stability to certain employment-authorized
individuals in the United States while addressing fraud and national
security concerns. To prevent gaps in employment for such individuals
and their employers, the proposed rule would provide for the automatic
extension of EADs (and, where necessary, employment authorization) upon
the timely filing of a renewal application. To protect against fraud
and other abuses, the proposed rule would also eliminate current
regulatory provisions that require adjudication of applications for
employment authorization in 90 days and that authorize interim EADs
when that timeframe is not met.
DHS has prepared a full costs and benefits analysis of the proposed
regulation, which can be found on regulations.gov.
III. Background
A. Permanent Employment-Based Immigration
1. Employment-Based Immigrant Visa Preference Categories
Current employment-based immigrant visa (i.e., permanent visa) \4\
levels were set 25 years ago with the enactment of the Immigration Act
of 1990 (``IMMACT 90''), Public Law 101-649, 104 Stat. 4978. As amended
by IMMACT 90, the INA generally makes 140,000 employment-based
immigrant visas available each fiscal year, plus any family-sponsored
immigrant visas authorized under section 203(a) of the INA, 8 U.S.C.
1153(a) that went unused during the previous fiscal year. See INA
section 201(d), 8 U.S.C. 1151(d). The INA allots the minimum 140,000
immigrant visas per fiscal year through five separate employment-based
(EB) ``preference categories'' as follows:
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\4\ Immigrant visas are essentially permanent visas that lead to
LPR status. The employment-based immigration process discussed here
focuses on the process through which an individual may obtain LPR
status in the United States through an employment-based immigration
category.
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First Preference (EB-1) Category: 40,040 immigrant visas
for so-called ``priority workers,'' including (1) ``aliens with
extraordinary ability,'' (2) ``outstanding professors and
researchers,'' and (3) ``certain multinational executives and
managers.'' INA section 203(b)(1), 8 U.S.C. 1153(b)(1).
Second Preference (EB-2) Category: 40,040 immigrant visas
for (1) ``members of the professions holding advanced degrees'' and (2)
``aliens of exceptional ability.'' INA section 203(b)(2), 8 U.S.C.
1153(b)(2).
Third Preference (EB-3) Category: 40,040 immigrant visas
for (1) ``skilled workers'' (workers with at least 2 years of training
or experience), (2) ``professionals'' (members of the professions
holding baccalaureate degrees), and (3) ``other workers'' (unskilled
workers of less than 2 years of training or experience). INA section
203(b)(3), 8 U.S.C. 1153(b)(3).
Fourth Preference (EB-4) Category: 9,940 immigrant visas
for certain ``special immigrants'' described in section 101(a)(27) of
the INA, 8 U.S.C. 1101(a)(27). INA section 203(b)(4), 8 U.S.C.
1153(b)(4).
Fifth Preference (EB-5) Category: 9,940 immigrant visas
for employment-creation immigrant investors seeking to enter the United
States for the purpose of engaging in a ``new commercial
[[Page 81905]]
enterprise.'' INA section 203(b)(5), 8 U.S.C. 1153(b)(5).\5\
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\5\ This proposed rule largely does not affect individuals
applying for immigrant visas in the EB-4 and EB-5 preference
categories. Accordingly, the remainder of this section concerns only
individuals seeking immigrant visas under the EB-1, EB-2, and EB-3
preference categories.
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The INA further provides that immigrant visa numbers authorized in
one preference category may be moved to other preference categories
when demand for visas in the original preference category is
insufficient to use all available visas. See generally INA section
203(b), 8 U.S.C. 1153(b).
Although the INA makes the above minimum number of employment-based
immigrant visas available each fiscal year, the INA requires that no
more than 27 percent of the available number be issued in any of the
first 3 quarters of the fiscal year. See INA section 201(a)(2), 8
U.S.C. 1151(a)(2). Moreover, these immigrant visa numbers are subject
to what are known as ``per-country'' limitations. See INA section
202(a)(2), 8 U.S.C. 1152(a)(2). Generally, in any fiscal year,
individuals born in any given country may be allocated no more than 7
percent of the total number of immigrant visas. As discussed further
below, depending on the level of demand in the governing preference
category, the individual's country of birth, and the applicability of
any statutory exceptions to these limitations, an individual may be
subject to lengthy delays in the employment-based immigration process
due to lack of immigrant visa availability.
2. The Employment-Based Immigrant Visa Process
Individuals seeking to obtain LPR status in the United States
through the EB-1, EB-2, or EB-3 preference categories must often go
through a complex, multi-step process. With respect to most individuals
described in the EB-2 and EB-3 categories, the immigrant visa process
normally begins when a U.S. employer seeks to obtain a labor
certification from the U.S. Department of Labor (DOL).\6\ See INA
section 212(a)(5), 8 U.S.C. 1182(a)(5); 8 CFR 204.5. Generally, the
U.S. employer is required to test the U.S. labor market for the offered
position by advertising the position and attempting to recruit
qualified U.S. workers in the area of intended employment. See 20 CFR
656.17. In the alternative, the employer may provide evidence to USCIS
that the position to be filled by the worker qualifies for what is
known as a ``Schedule A'' designation due to a shortage of U.S. workers
in a specific occupation. See 20 CFR 656.5, 656.15. Schedule A
applications are not required to obtain labor certification through DOL
prior to petitioning USCIS. Id.
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\6\ Labor certifications are unnecessary for petitions seeking
EB-1 classification and for petitions seeking a ``national interest
waiver'' under the EB-2 category. See INA sections 203(b)(2)(B) and
212(a)(5)(D), 8 U.S.C. 1153(b)(2)(B) and 1182(a)(5)(D); 8 CFR
204.5(h)(5), (i)(3)(iii), (j)(5), (k)(4)(ii).
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Upon completion of the recruitment process (if recruitment is
required), the employer files an ``Application for Permanent Employment
Certification'' (ETA Form 9089) with DOL's Office of Foreign Labor
Certification. See 20 CFR 656.17(a). The application constitutes a
request for DOL to certify, among other things, that (1) there ``are
not sufficient workers who are able, willing, qualified . . . , and
available'' to perform the advertised job, and (2) the individual's
admission to the United States ``will not adversely affect the wages
and working conditions'' of U.S. workers. INA section 212(a)(5)(A)(i),
8 U.S.C. 1182(a)(5)(A)(i). For immigrant visa petitions that require an
approved permanent labor certification from DOL, the date the
application for labor certification is accepted by DOL for processing
is the employee's ``priority date.'' See 8 CFR 204.5(d). The priority
date sets an individual's place in the queue for the allocation of
employment-based immigrant visas.
After obtaining an approved permanent labor certification from DOL,
or if no such certification is required for the classification sought,
the U.S. employer files an immigrant visa petition with USCIS on behalf
of the worker (or ``beneficiary'').\7\ See INA section 204(a)(1)(F), 8
U.S.C. 1154(a)(1)(F). Such petition is known as an ``Immigrant Petition
for Alien Worker,'' or USCIS Form I-140. The purpose of the petition is
to demonstrate that the job offered and the beneficiary's
qualifications meet the requirements of the requested immigrant visa
classification under section 203(b) of the INA, 8 U.S.C. 1153(b), and
pertinent regulatory requirements, see 8 CFR 204.5. If no labor
certification was required, the employee's priority date (i.e., place
in the queue for an employment-based immigrant visa) is the date the
immigrant visa petition is properly filed with USCIS. See 8 CFR
204.5(d); see also 22 CFR 42.53(a).
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\7\ Individuals seeking immigrant visas through the EB-1
preference category as workers with extraordinary ability (rather
than as outstanding professors and researchers or multinational
executives and managers), or through the EB-2 preference category
with ``national interest waivers,'' may file immigrant visa
petitions on their own behalf and thus do not require sponsorship by
a U.S. employer. See INA sections 203(b)(1)(B), (b)(1)(C), and
(b)(2)(B)(i), 8 U.S.C. 1153(b)(1)(B), (b)(1)(C), and (b)(2)(B)(i).
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If the immigrant visa petition is approved, the beneficiary must
take additional steps to obtain LPR status, by either requesting an
immigrant visa to enter the United States from abroad or filing an
application for adjustment of status while in the United States. The
ability to take such steps, however, is limited by the number of
immigrant visas authorized for issuance and any superseding demand for
such visas. As mentioned above, the beneficiary's priority date
determines the duration of that beneficiary's wait for an immigrant
visa by positioning the beneficiary behind individuals with earlier
priority dates in the same employment-based preference category and
country of birth. In certain situations, the beneficiary of an approved
EB-1, EB-2, or EB-3 immigrant visa petition may retain the priority
date listed in the approved petition for use in a subsequent immigrant
visa petition. See 8 CFR 204.5(e).
The beneficiary of an approved immigrant visa petition may be able
to obtain LPR status in one of two ways. The beneficiary may apply at a
U.S. consular post abroad for an immigrant visa, which, once received,
would allow the beneficiary to apply for admission to the United States
as an LPR.\8\ Such a beneficiary must generally wait to receive visa
application instructions from the U.S. Department of State (DOS)
National Visa Center. After receiving these instructions, the
beneficiary collects required information and files the immigrant visa
application with DOS. Depending on the demand for immigrant visas in
the beneficiary's preference category and country of birth, the
beneficiary may be required to wait further for visa issuance. Once DOS
allocates visa numbers to be issued to applicants in the relevant
preference category and country of birth with the beneficiary's
priority date, DOS contacts the beneficiary for an immigrant visa
interview. If the beneficiary's application is ultimately approved, he
or she is issued an immigrant visa and, on the date of admission to the
United States, obtains LPR status. DOS publishes a monthly ``Visa
Bulletin'' that indicates when individuals may expect to receive their
visa application instructions, as well as whether they are currently
authorized to be issued immigrant visas by DOS consular offices abroad.
See INA sections 203(e) and (g), 245(a), 8 U.S.C. 1153(e) and (g),
1255(a); see also 8 CFR 245.1(g)(1) and
[[Page 81906]]
245.2(a)(2)(i)(B), 22 CFR 42.51 through 42.55.
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\8\ INA sections 203, 221 and 222; 8 U.S.C. 1153, 1201 and 1202.
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In the alternative, a beneficiary who is in the United States in
lawful nonimmigrant status, with limited exception, may seek LPR status
by filing with USCIS an application for adjustment of status to that of
a lawful permanent resident (``application for adjustment of status'')
in accordance with section 245 of the INA, 8 U.S.C. 1255. Before filing
such an application, however, the beneficiary must wait until an
immigrant visa is ``immediately available'' to him or her. See INA
section 245(a), 8 U.S.C. 1255(a); 8 CFR 245.2(a)(2)(i)(B) and (C). An
immigrant visa is considered ``immediately available'' to the
beneficiary if his or her priority date for the preference category is
earlier than the relevant cut-off date indicated in the monthly DOS
Visa Bulletin.\9\ See 8 CFR 245.1(g)(1) and 245.2(a)(2)(i)(B). These
dates allow individuals to determine--based on their priority dates,
countries of birth, and preference categories--whether they can file
applications for adjustment of status and when they may expect to have
their status adjusted to that of an LPR.
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\9\ The Visa Bulletin, which is issued monthly, is available at
http://travel.state.gov/visa/bulletin/bulletin_1360.html.
---------------------------------------------------------------------------
After the application for adjustment of status is filed, USCIS
commences its adjudication. It is possible, however, that while the
application is pending, higher than expected demand for immigrant visas
will cause DOS to determine that immigrant visas that previously were
available are no longer available to the applicant and cannot be
authorized for issuance to him or her. This is often referred to as
``visa retrogression.'' In such cases, USCIS may not approve the
application until an immigrant visa is again available and authorized
for issuance to the applicant under the Visa Bulletin. USCIS will place
these cases on ``hold'' in the interim. Similarly, retrogression may
cause a DOS consular post abroad to no longer be able to issue an
immigrant visa to an overseas applicant.
B. Nonimmigrant Visa Classifications
Prior to being sponsored for an immigrant visa by a U.S. employer,
many foreign national employees first come to the United States
pursuant to a nonimmigrant visa, such as an H-1B visa for ``specialty
occupation workers'' or an L-1 visa for ``intracompany transferees.''
These and other nonimmigrant visa classifications allow these
individuals to be employed in the United States for temporary periods.
Each classification has its own eligibility requirements, as well as
requirements related to duration of status, ability to renew status,
ability to change jobs or employers, minimum wages, and worker
protections.
1. The H-1B Nonimmigrant Visa Classification
A U.S. employer seeking to temporarily employ a foreign national in
the United States in a ``specialty occupation'' may file a petition to
obtain H-1B nonimmigrant classification on behalf of the
individual.\10\ See INA section 101(a)(15)(H)(i)(B), 8 U.S.C.
1101(a)(15)(H)(i)(B). A specialty occupation is defined as an
occupation that requires (1) ``theoretical and practical application of
a body of highly specialized knowledge'' and (2) ``the attainment of a
bachelor's or higher degree in the specific specialty (or its
equivalent) as a minimum qualification for entry into the occupation in
the United States.'' See INA section 214(i)(l), 8 U.S.C. 1184(i)(1).
Subject to certain exemptions, the total number of individuals who may
be issued H-1B visas or otherwise accorded H-1B status in a fiscal year
may not exceed 65,000. See INA section 214(g)(1)(A)(vii), 8 U.S.C.
1184(g)(1)(A)(vii). Employers eligible to file H-1B petitions include
the actual employer of the worker as well as certain agents that
satisfy DHS regulatory requirements. See 8 CFR 214.2(h)(2)(i)(A) and
(F).
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\10\ An H-1B petition can be filed for a foreign national to
perform services in a specialty occupation, services relating to a
Department of Defense (DOD) cooperative research and development
project or coproduction project, or services of distinguished merit
and ability in the field of fashion modeling. 8 CFR
214.2(h)(4)(i)(A).
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Before filing an H-1B petition, the U.S. employer (or
``petitioner'') generally must first file a Labor Condition Application
(LCA) with DOL that covers the proposed dates of H-1B employment.\11\
See INA sections 101(a)(15)(H)(i)(B) and 212(n), 8 U.S.C.
1101(a)(15)(H)(i)(B) and 1182(n). Among other things, the LCA requires
the petitioner to attest to the occupational classification in which
the worker will be employed, the wage to be paid to the worker, and the
location(s) where the employment will occur. See INA section 212(n), 8
U.S.C. 1182(n); see also 20 CFR 655.730(c)(4). If DOL certifies the
LCA, the petitioner may then file a Petition for a Nonimmigrant Worker
(Form I-129) with USCIS seeking approval of H-1B classification for the
worker (or ``beneficiary'').\12\ See INA section 214(c)(1), 8 U.S.C.
1184(c)(1); 8 CFR 214.2(h)(4)(i)(B)(1). If the H-1B position requires a
state or local license to fully perform the job duties, the H-1B
petition may not be approved unless the beneficiary possesses the
required license. See 8 CFR 214.2(h)(4)(v)(A).
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\11\ Petitions for H-1B visas relating to Department of Defense
cooperative research, development, and coproduction projects do not
require petitioners to file a Labor Condition Application. See 8 CFR
214.2(h)(4)(vi).
\12\ In such case, the worker would be considered the
beneficiary of the H-1B petition.
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If the H-1B petition is approved, H-1B classification may generally
be issued for a period of up to 3 years but may not exceed the validity
period of the LCA.\13\ See 8 CFR 214.2(h)(9)(iii)(A)(1). Subsequently,
the original petitioner or a different petitioner may petition USCIS to
authorize continued or new employment of the beneficiary as an H-1B
nonimmigrant worker. Such a renewal petition may, if the H-1B
nonimmigrant worker is in the United States and (with limited
exception) maintaining H-1B status at the time the petition is filed,
include a request to extend his or her stay in H-1B status. See 8 CFR
214.1(c)(1) and 214.2(h)(2)(i)(D), (h)(14) and (h)(15).
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\13\ H-1B visas relating to Department of Defense cooperative
research, development, and coproduction projects may be issued for
up to 5 years, and they may be renewed for a maximum H-1B period of
10 years. See Public Law 101-649, section 222(a)(2), 104 Stat. 4978
(Nov. 29, 1990); 8 CFR 214.2(h)(9)(iii)(A)(2).
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The maximum period of authorized admission of an individual in the
H-1B classification is generally limited to 6 years. See INA section
214(g)(4), 8 U.S.C. 1184(g)(4).\14\ Typically, an H-1B petition may not
be approved for a beneficiary who has stayed for the maximum allowable
amount of time in the United States as an H-1B (or L-1 \15\)
nonimmigrant worker, unless the beneficiary has resided and been
physically present outside the United States for the immediate prior
year. See 8 CFR 214.2(h)(13)(iii)(A). The INA defines the terms
``admission'' and ``admitted'' to mean ``the lawful entry of the
[foreign national] into the United States after inspection and
authorization by an immigration officer.'' See INA section 101(a)(13),
8 U.S.C. 1101(a)(13). Therefore, DHS calculates an H-1B nonimmigrant
worker's period of authorized admission by excluding time spent outside
the United States during the validity of an H-1B petition. Such
[[Page 81907]]
``remainder time'' is effectively added back to the period of stay
allowed the individual as an H-1B nonimmigrant worker. Reclaiming this
time is referred to as ``recapture'' of H-1B time (i.e., the time
allowed an individual to be employed in H-1B status within the 6-year
period of authorized admission).\16\
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\14\ The maximum period of authorized admission for Department
of Defense H-1B nonimmigrant workers is 10 years. As explained in
detail below, AC21, as amended, contains two provisions that allow
for USCIS to approve H-1B petitions for beneficiaries beyond the
otherwise applicable statutory 6-year maximum period of authorized
admission.
\15\ The L-1 nonimmigrant classification is described further
below.
\16\ See USCIS Memorandum from Michael Aytes, ``Procedures for
Calculating Maximum Period of Stay Regarding the Limitations on
Admission for H-1B and L-1 Nonimmigrants,'' (Oct. 21, 2005) (``Aytes
Memo Oct. 2005'').
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Spouses and minor, unmarried children of an H-1B nonimmigrant
worker are eligible for H-4 nonimmigrant status subject to the same
period of admission and limits as the H-1B nonimmigrant. See 8 CFR
214.2(h)(9)(iv). H-1B nonimmigrant workers and their H-4 nonimmigrant
dependents are currently afforded a grace period of up to 10 days to
remain in the United States after the end of the petition validity
period. See 8 CFR 214.2(h)(13)(i)(A). During any such grace period, the
H-1B nonimmigrant worker is considered ``admitted to the United
States,'' but not authorized to work. Id.
Generally, a request for an extension of H-1B stay may be filed
only if the individual's H-1B status has not expired. See 8 CFR
214.1(c)(4) and 214.2(h)(14). Under certain circumstances, failure to
file a request for an extension of H-1B stay before H-1B nonimmigrant
status has expired may be excused. Id. In such cases, the petitioner
must demonstrate that:
The delay was due to extraordinary circumstances beyond
the control of the foreign national or petitioner, and USCIS finds the
delay commensurate with the circumstances;
The foreign national has not otherwise violated his or her
nonimmigrant status;
The foreign national remains a bona fide nonimmigrant; and
The foreign national is not the subject of deportation
proceedings under section 242 of the INA, 8 U.S.C. 1252 (prior to April
1, 1997), or removal proceedings under section 240 of the INA, 8 U.S.C.
1229a.
Id. If such a request for an extension of H-1B stay is approved,
the extension may be granted from the date the previously authorized
stay expired. Id.
2. Other Relevant Nonimmigrant Visa Classifications
Foreign nationals may also work in the United States in other
temporary nonimmigrant statuses. The employment-based nonimmigrant
statuses that are relevant to this proposed rule are described below.
E-1 classification. The E-1 nonimmigrant classification allows
nationals of certain ``treaty countries'' to be admitted to the United
States solely to engage in international trade on his or her own
behalf. To qualify for E-1 classification, the ``treaty trader'' must:
(1) Be a national of a country with which the United States maintains a
qualifying treaty; and (2) carry on substantial trade, principally
between the United States and the treaty country that qualifies the
treaty trader for E-1 classification. See 8 CFR 214.2(e)(1). Certain
employees of such a person or of a qualifying organization may also be
eligible for this classification. A treaty trader or employee may only
engage in the trade activity or work in the employment for which he or
she was approved at the time the classification was granted. See 8 CFR
214.2(e)(8)(i). An E-1 employee, however, may also work for the treaty
organization's parent company or one of its subsidiaries in certain
circumstances. See 8 CFR 214.2(e)(8)(ii). Treaty traders may be
admitted in E-1 nonimmigrant status for a period of up to 2 years, and
such status may be renewed indefinitely so long as the individual
continues to meet the relevant qualifications. See 8 CFR 214.2(e)(19)
and (20).
E-2 classification. The E-2 nonimmigrant classification concerns
nationals of treaty countries who invest a substantial amount of
capital in a U.S. enterprise. To qualify for E-2 classification, the
``treaty investor'' must: (1) Be a national of a country with which the
United States maintains a qualifying treaty; (2) have invested, or be
actively in the process of investing, a substantial amount of capital
in a bona fide enterprise in the United States; and (3) be seeking to
enter the United States solely to develop and direct the enterprise.
Certain employees of such a person or of a qualifying organization may
also be eligible for this classification. A ``treaty investor'' or
employee in E-2 nonimmigrant status may only engage in the investment
activity or work in the employment for which he or she was approved at
the time the classification was granted. See 8 CFR 214.2(e)(8)(i). An
E-2 nonimmigrant employee, however, may also work for the treaty
organization's parent company or one of its subsidiaries in certain
circumstances. See 8 CFR 214.2(e)(8)(ii). Treaty investors may be
admitted in E-2 nonimmigrant status for a period of 2 years, and such
status may be renewed indefinitely so long as the individual continues
to meet the relevant qualifications. See 8 CFR 214.2(e)(19) and (20).
E-3 classification. The E-3 nonimmigrant visa classification
concerns specialty occupation workers who are nationals of the
Commonwealth of Australia. See INA section 101(a)(15)(E)(iii), 8 U.S.C.
1101(a)(15)(E)(iii). The definition of the term ``specialty
occupation'' is the same for E-3 classification as that for the H-1B
classification. See INA section 214(i)(1), 8 U.S.C. 1184(i)(1). To
qualify for E-3 classification, the applicant must present a Labor
Condition Application in accordance with section 212(t)(1) of the INA,
8 U.S.C. 1182(t)(1). The total number of Australian nationals who may
be accorded E-3 nonimmigrant status in a fiscal year is capped at
10,500. See INA section 214(g)(11)(B), 8 U.S.C. 1184(g)(11)(B). E-3
nonimmigrant workers may be admitted initially for a period not to
exceed the validity period of the accompanying LCA (granted for 2
years) and may be granted indefinite extensions of stay in increments
of up to 2 years. See 20 CFR 655.750(a)(2).\17\
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\17\ See Michael Aytes Memorandum: Processing Guidelines for E-3
Australian Specialty Occupation Workers and Employment Authorization
for E-3 Dependent Spouses (Dec. 15, 2005), available at http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2005/e3polgdnc_121505.pdf.
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H-1B1 classification. Similar to the H-1B and E-3 classifications,
the H-1B1 classification is for specialty occupation workers, but is
limited to temporary workers from Chile and Singapore. See INA sections
101(a)(15)(H)(i)(b)(1) and 214(i), 8 U.S.C. 1101(a)(15)(H)(i)(b)(1) and
1184(i). Consistent with Free Trade Agreements with Chile and
Singapore, up to 1,400 nationals from Chile and 5,400 nationals from
Singapore may enter the United States annually in the H-1B1
classification to perform specialty occupation work. See INA section
214(g)(8)(B), 8 U.S.C. 1184(g)(8)(B). Individuals admitted in such
status are counted against the overall H-1B annual numerical limitation
of 65,000. Id. The H-1B1 nonimmigrant classification requires the
filing of an LCA certified by DOL. See INA sections
101(a)(15)(H)(i)(B)(1) and 212(t), 8 U.S.C. 1101(a)(15)(H)(i)(B)(1) and
1182(t). H-1B1 nonimmigrants may be admitted for a period of up to 1
year, and may extend their period of stay in the United States in up to
1-year increments. See INA section 214(g)(8)(C), 8 U.S.C.
1184(g)(8)(C).
L-1 classification. The L-1 nonimmigrant visa classification
[[Page 81908]]
concerns ``intracompany transferees'' of multinational entities who are
executives, managers, or employees with specialized knowledge and who
are transferring from an office abroad to a qualifying office in the
United States. See INA section 101(a)(15)(L), 8 U.S.C. 1101(a)(15)(L).
Executive and managerial employees qualify for L-1A status and are
admitted for a maximum initial stay of 3 years, with extensions of stay
granted in increments of up to 2 years, until the employee has reached
the maximum limit of 7 years. See INA section 214(c)(1)(D)(i), 8 U.S.C.
1184(c)(1)(D)(i); see also 8 CFR 214.2(l)(12)(i) and (15)(ii).
Specialized knowledge employees qualify for L-1B status and are
admitted for a maximum initial stay of 3 years, with extensions of stay
granted in increments of up to 2 years, until the employee has reached
the maximum limit of 5 years. See INA section 214(c)(1)(D)(ii); see
also 8 CFR 214.2(l)(12)(i) and (15)(ii).
O-1 classification. The O-1 nonimmigrant visa classification
includes individuals who either: (1) Have ``extraordinary ability'' in
the sciences, arts, education, business or athletics, as demonstrated
by sustained national or international acclaim; or (2) have a
demonstrated record of extraordinary achievements in the motion picture
or television industry, as recognized in the field through extensive
documentation. See INA section 101(a)(15)(O), 8 U.S.C. 1101(a)(15)(O).
O-1 nonimmigrants must be coming temporarily to the United States to
continue work in the relevant area of extraordinary ability or
achievement. Id. O-1 nonimmigrants may be admitted to the United States
for up to 3 years, plus a period of up to 10 days before the validity
period begins and 10 days after the validity period ends. See 8 CFR
214.2(o)(6)(iii)(A) and (o)(10). Extensions of status may be authorized
in increments of up to 1 year, and such status may be renewed
indefinitely so long as the individual continues to meet the relevant
qualifications. See 8 CFR 214.2(o)(12)(ii).
TN Classification. The TN nonimmigrant classification, established
in the North American Free Trade Agreement,\18\ permits qualified
Canadian and Mexican citizens to seek temporary entry into the United
States to engage in business activities at a professional level. See
INA section 214(e), 8 U.S.C. 1184(e); see also 8 CFR 214.6(b). The TN
nonimmigrant worker may not intend to establish a business in the
United States or be self-employed in this country, and he or she must
be arriving pursuant to a prearranged agreement with a U.S. employer.
Id. The TN nonimmigrant worker must also demonstrate that he or she
possesses at least the minimum qualification prescribed for his or her
respective profession and that he or she intends to remain in the
United States temporarily. See 8 CFR 214.6(a), (d)(3)(ii). An eligible
alien seeking TN classification may be granted TN status for an initial
period not to exceed 3 years. See 8 CFR 214.6(e). Extensions of stay
may be granted for periods not to exceed 3 years at a time. See 8 CFR
214.6(h)(1)(iii). TN is a temporary nonimmigrant classification,
although there is no specific limit on the total period of time an
alien may remain in the United States in TN status as long as he or she
continues to be engaged in TN business activities for a U.S. employer
or entity at a professional level, and otherwise continues to properly
maintain TN status. See 8 CFR 214.6(h)(1)(iv).
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\18\ See 58 FR 69205 (Dec. 30, 1993); 58 FR 68526 (Dec. 28,
1993).
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C. ACWIA and AC21
1. The American Competitiveness and Workforce Improvement Act of 1998
ACWIA was enacted on October 21, 1998. Among other things, ACWIA
was intended to address shortages of workers in the U.S. high-
technology sector. To increase the number of such workers in the United
States, section 411 of ACWIA increased the annual numerical cap on H-1B
visas from 65,000 to 115,000 in each of fiscal years (FY) 1999 and
2000, and to 107,500 in FY 2001.\19\ See ACWIA section 411 (amending
INA section 214(g)(1), codified at 8 U.S.C. 1184(g)(1)). The
congressional statements accompanying ACWIA recognized that the
continued competitiveness of the U.S. high-technology sector is
``crucial for [U.S.] economic well-being as a nation, and for increased
economic opportunity for American workers.'' See 144 Cong. Rec.
S12,741, S12,749 (daily ed. Oct. 21, 1998) (statement of Sen. Spencer
Abraham); see also id. (``This issue is not only about shortages, it is
about opportunities for innovation and expansion, since people with
valuable skills, whatever their national origin, will always benefit
our nation by creating more jobs for everyone.'').\20\
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\19\ Section 102(a) of AC21 further amended INA section
214(g)(1) by increasing the annual numerical cap on H-1B visas to
195,000 for each of the fiscal years 2001, 2002, 2003.
\20\ Senator Abraham drafted and sponsored the original Senate
bill for ACWIA, then titled the American Competitiveness Act, S.
1723, 105th Cong. (1998), which passed the full Senate by a 78-20
margin on May 18, 1998. 144 Cong. Rec. as S12,748-49 (daily ed. Oct.
21, 1998). He negotiated with the House of Representatives on a
compromise ACWIA bill and was deputized to negotiate in talks
between Congress and the White House to finalize the bill.
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ACWIA also included several measures intended to improve
protections for U.S. and H-1B nonimmigrant workers. Section 413 of the
act provided enhanced penalties for employer violations of LCA
obligations, as well as willful misrepresentations by employers in
LCAs. See ACWIA section 413 (creating INA section 212(n)(2)(C),
codified at 8 U.S.C. 1182(n)(2)(C)). Such enhancements included
increased monetary penalties, as well as temporary prohibitions on the
approval of certain types of petitions, such as H-1B petitions and
employment-based immigrant visa petitions.\21\ Id. This prohibition
against petition approval is often referred to as ``debarment.'' The
severity of the penalty awarded to an employer depends upon the
seriousness of the employer's violation, as determined by DOL. See INA
section 212(n)(2)(C)(i)-(iii), 8 U.S.C. 1182(n)(2)(C)(i)-(iii). DOL is
required to notify USCIS of the entities determined to be subject to
debarment. See 20 CFR 655.855 and 656.31(f)(2).
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\21\ Legal Opinion: INS Procedure for Processing Debarment of
Employer Pursuant to Sec. 212(n)(2)(C)(ii) of the INA, Genco Op. No.
94-21, 1994 WL 1753125 (Apr. 12, 1994) (concluding that the
determination of whether a section 212(n)(2)(C)(ii) violation has
occurred rests solely with DOL, and that DHS must accept that
determination).
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Section 413 of ACWIA also made it a violation for an H-1B employer
to retaliate against an employee for providing information to the
employer or other persons, or for cooperating in an investigation,
related to an employer's violation of its LCA attestations and
obligations. Employers are prohibited from taking retaliatory action in
such situations, including any action ``to intimidate, threaten,
restrain, coerce, blacklist, discharge, or in any other manner
discriminate'' against an employee for ``disclos[ing] information to
the employer, or to any other person, that the employee reasonably
believes evidences [an LCA] violation, any rule or regulation
pertaining to the statutory LCA attestation requirements, or for
cooperating, or attempting to cooperate, in an investigation or
proceeding pertaining to the employer's LCA compliance.'' See INA
section 212(n)(2)(C)(iv), 8 U.S.C. 1182(n)(2)(C)(iv). Section 413
further required the development of a process to enable H-1B
nonimmigrant workers who file complaints with DOL regarding such
illegal retaliation, and are otherwise eligible to remain and work in
[[Page 81909]]
the United States, to seek other appropriate employment in the United
States. See INA section 212(n)(2)(C)(v), 8 U.S.C. 1182(n)(2)(C)(v).
Section 412 of ACWIA created additional requirements for U.S.
employers deemed to be ``H-1B dependent,'' see INA section
212(n)(3)(A), 8 U.S.C. 1182(n)(3)(A), and those that have willfully
failed to comply with their LCA obligations or who have misrepresented
material facts in an LCA, see INA section 212(n)(1)(E)-(G), 8 U.S.C.
1182(n)(1)(E)-(G). These U.S. employers are required to attest that
they will not displace U.S. workers to fill a prospective position with
an H-1B nonimmigrant worker, and that they took good faith steps to
recruit qualified U.S. workers for the prospective H-1B position. Id.
Employers are not subject to these additional non-displacement
requirements, however, with regard to petitions for H-1B nonimmigrant
workers who receive at least $60,000 in annual wages or have attained a
master's or higher degree in a specialty related to the relevant
employment. See ACWIA section 412 (creating INA section
212(n)(1)(E)(ii) and (n)(3)(B), codified at 8 U.S.C. 1182(n)(1)(E)(ii)
and (n)(3)(B)).
Section 414 of ACWIA imposed a temporary fee on certain H-1B
employers to fund, among other things, job training of U.S. workers and
scholarships in the science, technology, engineering, and mathematics
(STEM) fields. See ACWIA section 414 (creating INA section 214(c)(9),
codified at 8 U.S.C. 1184(c)(9)). The ACWIA fee was initially scheduled
to sunset on September 30, 2001. Public Law 106-311, however, increased
the fee from $500 to $1,000 and extended the sunset provision to
September 30, 2003. Public Law 106-311 also amended section
214(c)(9)(A) of the INA, 8 U.S.C. 1184(c)(9), by specifying additional
employers that are exempt from the ACWIA fee (i.e., employers in
addition to the exempt employers described in section 212(p)(1) of the
INA, 8 U.S.C. 1182(p)(1)). Exempt employers currently include
institutions of higher education, nonprofit entities related or
affiliated with such institutions, and nonprofit or governmental
research organizations, among others. See INA section 214(c)(9)(A), 8
U.S.C. 1184(c)(9)(A). Subsequently, the H-1B Visa Reform Act of 2004,
enacted as part of the Consolidated Appropriations Act, 2005, Public
Law 108-447, div. J, tit. IV, made the ACWIA fee permanent and raised
it from $1,000 to $1,500 per qualifying petition filed with USCIS after
December 8, 2004. This fee was also reduced to $750 for employers with
no more than 25 full-time equivalent employees employed in the United
States (including employees employed by any affiliate or subsidiary of
such employer).
2. The American Competitiveness in the Twenty-first Century Act of 2000
AC21 was enacted on October 17, 2000. It made numerous changes to
the INA designed, among other things, to improve the U.S. economy in
both the short and long term. First, AC21 sought to positively impact
economic growth and job creation by immediately increasing the United
States' access to high-skilled workers. See S. Rep. No. 260, at 10
(``[A]rtificially limiting companies' ability to hire skilled foreign
professionals will stymie our country's economic growth and thereby
partially atrophy its creation of new jobs. . . . American workers'
interests are advanced, rather than impeded, by raising the H-1B
cap''). Second, AC21 sought to improve the education and training of
U.S. workers in high-skilled sectors, and thereby produce a U.S.
workforce better equipped to fill the need in such sectors, through the
funding of scholarships and high-skilled training programs. See AC21
section 111. As noted by the accompanying Senate Report, foreign-born
high-skilled individuals have played an important role in U.S. economic
prosperity and the competitiveness of U.S. companies in numerous
fields. Id. AC21 sought to provide such benefits by making improvements
to both the employment-based immigrant visa process and the H-1B
specialty occupation worker program.
a. AC21 Provisions Relating to Employment-Based Immigrant Visas
To improve the immigrant visa process for certain workers, AC21
contained several provisions designed to improve access to employment-
based immigrant visas. Section 104 of AC21, for example, sought to
ameliorate the impact on intending immigrants of the per-country
limitations, which, as noted earlier, generally limit the number of
immigrant visas that may be issued to the nationals of any one country
to no more than 7 percent of the total number of such visas. See INA
section 202(a)(2), 8 U.S.C. 1152(a)(2). Sections 104(a) and (b) of AC21
amended the INA to excuse application of the per country limitations
when such application would result in immigrant visas going unused in
any quarter of the fiscal year. Specifically, these sections amended
the INA so that when the number of employment-based immigrant visas
authorized for issuance in a calendar quarter exceeds the number of
qualified immigrants who may otherwise be issued such visas, the visas
may be issued in the same quarter without regard to per-country
limitations. See AC21 sections 104(a) and (b) (amending INA section
202(a)(5), codified at 8 U.S.C. 1152(a)(5)); see also S. Rep. No. 260,
106th Cong., 2nd Sess. at 2. This provision recognized ``the
discriminatory effects of [the per-country limitations] on nationals
from certain Asian Pacific nations,'' specifically Chinese and Indian
nationals, which ``prevent[ed] an employer from hiring or sponsoring
someone permanently simply because he or she is Chinese or Indian, even
though the individual meets all other legal criteria.'' S. Rep. No.
260, at 22.
Section 104(c) of AC21 was designed to further ameliorate the
impact of the per-country limitations on H-1B nonimmigrant workers who
are the beneficiaries of approved EB-1, EB-2, or EB-3 immigrant visa
petitions. Specifically, section 104(c) authorized the extension of H-
1B status beyond the statutory 6-year maximum for such individuals if
immigrant visa numbers are not immediately available to them because
the relevant preference category is already over-subscribed for that
foreign national's country of birth. See AC21 section 104(c). In
support of this provision, Congress noted that ``these immigrants would
otherwise be forced to return home at the conclusion of their allotted
time in H-1B status, disrupting projects and American workers.'' See S.
Rep. No. 260, at 22. Section 104(c) ``enables these foreign nationals
to remain in H-1B status until they are able to receive an immigrant
visa and adjust their status within the United States, thus limiting
the disruption to American businesses.'' Id.
AC21 also sought to more generally ameliorate the impact of the
lack of employment-based immigrant visas on the high-skilled
beneficiaries of approved immigrant visa petitions. Sections 106(a) and
(b) of AC21, as amended by section 11030A of the 21st Century DOJ
Appropriations Act, Public Law 107-273(2002), authorized the extension
of H-1B status beyond the statutory 6-year maximum for H-1B
nonimmigrant workers who are being sponsored for LPR status by U.S.
employers and are subject to lengthy adjudication or processing delays.
Specifically, these provisions exempted H-1B nonimmigrant workers from
the 6-year limitation on H-1B status contained in INA section
214(g)(4), 8 U.S.C. 1184(g)(4), if 365 days or more have elapsed since
the filing of a labor certification application (if such
[[Page 81910]]
certification is required under INA section 212(a)(5), 8 U.S.C.
1182(a)(5)), or an immigrant visa petition under INA section 203(b), 8
U.S.C. 1153(b). These provisions were intended to allow such high-
skilled individuals to remain in the United States as H-1B nonimmigrant
workers, rather than being forced to leave the country and disrupt
their employers due to a long pending labor certification application
or immigrant visa petition. See S. Rep. No. 260, at 23.
Finally, to provide stability and flexibility to beneficiaries of
approved immigrant visa petitions subject to immigrant visa backlogs
and processing delays, AC21 also provided certain workers the improved
ability to change jobs or employers without losing their position in
the immigrant visa queue. Specifically, section 106(c) of AC21 provides
that certain immigrant visa petitions filed under the EB-1, EB-2, and
EB-3 preference categories will remain valid with respect to a new
qualifying job offer if the beneficiary changes jobs or employers,
provided an application for adjustment of status has been filed and
such application has been pending for 180 days or more. See AC21
section 106(c) (creating INA section 204(j), codified at 8 U.S.C.
1154(j)). In such cases, the new job offer must be in the same or a
similar occupational classification as the job for which the original
immigrant visa petition was filed. Id.
b. AC21 Provisions Seeking To Improve the H-1B Nonimmigrant Worker
Classification
As noted above, one of the principle purposes for the enactment of
AC21 was to improve the country's access to high-skilled workers. As
such, AC21 contains several additional provisions intended to expand
and strengthen the H-1B program.
i. Exemptions From the H-1B Numerical Cap
Section 103 of AC21 amended the INA to create an exemption from the
H-1B numerical cap for those H-1B nonimmigrant workers who are employed
or offered employment at an institution of higher education, a
nonprofit entity related or affiliated to such an institution, or a
nonprofit research or governmental research organization. See INA
section 214(g)(5)(A) and (B); 8 U.S.C. 1184(g)(5)(A) and (B).\22\
Congress deemed such employment advantageous to the United States.
Among other things, Congress recognized a short- and long-term need to
increase the number of workers in specialty occupation fields, and it
determined that increasing the number of high-skilled foreign nationals
working in specialty occupations at U.S. institutions of higher
education would increase the number of Americans who will be ready to
fill specialty occupation positions upon completion of their education.
See S. Rep. No. 260, at 21-22. Congress reasoned that ``by virtue of
what they are doing, people working in universities are necessarily
immediately contributing to educating Americans.'' Id. at 21. Congress
also recognized that U.S. institutions of higher education are on a
different hiring cycle from other U.S. employers, and in years of high
H-1B demand, these institutions would be unable to hire cap-subject H-
1B nonimmigrant workers. Id. at 22.
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\22\ See USCIS Memorandum from Michael Aytes, ``Guidance
Regarding Eligibility for Exemption from the H-1B Cap Based on Sec.
103 of the American Competitiveness in the Twenty-First Century Act
of 2000 (AC21) (Public Law 106-313) 2-4 (June 6, 2006)'' (``Aytes
Memo June 2006'').
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For purposes of this H-1B numerical cap exemption, the term
``institution of higher education'' is given the same meaning as that
set forth in section 101(a) of the Higher Education Act of 1965, Public
Law 89-329, 79 Stat. 1224 (1965), as amended (codified at 20 U.S.C.
1001(a) (``Higher Education Act'').\23\ See INA section 214(g)(5)(A); 8
U.S.C. 1184(g)(5)(A). The terms ``related or affiliated nonprofit
entity,'' and ``nonprofit research organization or governmental
research organization'' are defined at 8 CFR 214.2(h)(19)(iii)(B) and 8
CFR 214.2(h)(19)(iii)(C), respectively, and adopted as a matter of
interpretation in the cap exemption context.\24\
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\23\ Section 101(a) of the Higher Education Act of 1965, as
amended, defines ``institution of higher education'' as an
educational institution in any State that--
(1) admits as regular students only persons having a certificate
of graduation from a school providing secondary education, or the
recognized equivalent of such a certificate, or persons who meet the
requirements of [8 U.S.C. 1091(d)];
(2) is legally authorized within such State to provide a program
of education beyond secondary education;
(3) provides an educational program for which the institution
awards a bachelor's degree or provides not less than a 2-year
program that is acceptable for full credit toward such a degree, or
awards a degree that is acceptable for admission to a graduate or
professional degree program, subject to review and approval by the
Secretary [of Education];
(4) is a public or other nonprofit institution; and
(5) is accredited by a nationally recognized accrediting agency
or association, or if not so accredited, is an institution that has
been granted preaccreditation status by such an agency or
association that has been recognized by the Secretary [of Education]
for the granting of preaccreditation status, and the Secretary [of
Education] has determined that there is satisfactory assurance that
the institution will meet the accreditation standards of such an
agency or association within a reasonable time.
\24\ See Aytes Memo June 2006, at 4.
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ii. Application of the H-1B Numerical Cap to Persons Previously Counted
Section 103 of AC21 also amended the INA to ensure that H-1B
nonimmigrant workers can change jobs or employers without requiring
that they again count against the H-1B cap. Specifically, section 103
provides that an individual who has been counted against the H-1B
numerical cap within the 6 years prior to petition approval will not be
counted against the cap unless that individual would be eligible for a
new 6-year period of authorized H-1B admission. See INA section
214(g)(6); 8 U.S.C. 1184(g)(6). As noted above, an individual
previously in the United States on H-1B nonimmigrant status is eligible
for a full 6 years of authorized admission as an H-1B nonimmigrant
after residing and being physically present outside the United States
for the immediate prior year. See 8 CFR 214.2(h)(13)(iii)(A).
Section 103 of AC21 also amended the INA to address cases in which
an H-1B nonimmigrant worker seeks to change employment from a cap-
exempt entity to a ``cap-subject'' entity. Specifically, section 103
provides that once employment ceases with respect to a cap-exempt
entity, the H-1B nonimmigrant worker will be subject to the cap if not
previously counted and no other exemptions from the cap apply. See INA
section 214(g)(6), 8 U.S.C. 1184(g)(6).
iii. H-1B Portability
Section 105 of AC21 further improved the H-1B program by increasing
job portability for H-1B nonimmigrant workers. Specifically, section
105 allows an H-1B nonimmigrant worker to begin concurrent or new H-1B
employment upon the filing of a timely, non-frivolous H-1B petition.
See INA section 214(n), 8 U.S.C. 1184(n). The H-1B nonimmigrant worker
must have been lawfully admitted to the United States, must not have
worked without authorization subsequent to such lawful admission, and
must be in a period of stay authorized by the Secretary.\25\ Employment
authorization based on the pending petition continues until
adjudication. See INA section 214(n)(1), 8 U.S.C. 1184(n)(1). If the H-
1B petition is denied, the employment
[[Page 81911]]
authorization provided under this provision ceases. Id. Congress
created such H-1B portability to ``allow an H-1B visa holder to change
employers at the time a new employer files the initial paperwork,
rather than having to wait for the new H-1B petition to be approved.
This responds to concerns raised about the potential for exploitation
of H-1B visa holders as a result of a specific U.S. employer's control
over the employee's legal status.'' See S. Rep. No. 260, at 22-23.
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\25\ See USCIS Memorandum from Donald Neufeld, ``Consolidation
of Guidance Concerning Unlawful Presence for Purposes of Sections
212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act'' (May 6, 2009)
(``Neufeld Memo May 2009'') (describing various ``periods of
authorized stay'').
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D. The Processing of Applications for Employment Authorization
Documents
The Secretary of Homeland Security has broad authority to extend
employment authorization to noncitizens in the United States. See,
e.g., section 274A(h)(3)(B) of the INA, 8 U.S.C. 1324a(h)(3)(B). DHS
regulations at 8 CFR 274a.12(a), (b), and (c) describe three broad
categories of foreign nationals authorized to work in the United
States. Individuals in the first class, described at 8 CFR 274a.12(a),
are authorized to work in the United States incident to their
immigration status, without restriction on the location of their
employment or the type of employment they may accept. Such individuals
who travel to the United States by air and sea may electronically
access an Arrival-Departure Record (Form I-94) indicating their
nonimmigrant status and attendant employment authorization; such
individuals who are admitted at land border port of entry may receive a
paper Form I-94. Those individuals seeking to obtain an EAD (Form I-
766) containing both evidence of employment authorization and a
photograph typically must file a separate application with USCIS. See 8
CFR 274a.13(a).
Individuals in the second class, described at 8 CFR 274a.12(b), are
also employment authorized incident to their nonimmigrant status, but
such employment authorization is valid only with a specific employer.
Individuals in this second group are not issued an EAD; instead these
individuals obtain an Arrival-Departure Record (Form I-94) indicating
their nonimmigrant status and attendant employment authorization and do
not file separate requests for evidence of employment authorization.
Individuals in the third class, described at 8 CFR 274a.12(c), are
required to apply for employment authorization and may begin working
only if USCIS approves their application. Such employment authorization
is subject to the restrictions described in the regulations for his or
her respective employment eligibility category. With respect to
individuals described in the first and third categories, USCIS has the
discretion to establish a specific validity period for the EAD.
Individuals requesting an EAD must file an Application for
Employment Authorization (Form I-765) with USCIS in accordance with the
form instructions. See 8 CFR 274a.13. Under current regulations, if
USCIS does not adjudicate an Application for Employment Authorization
within 90 days from the date USCIS receives the application, an
applicant will be granted an interim document evidencing employment
authorization with a validity period not to exceed 240 days. See 8 CFR
274a.13(d). Generally, the approval of an Application for Employment
Authorization by an individual described in 8 CFR 274a.12(c) is within
the discretion of USCIS.\26\ And there is no right to appeal the denial
of an Application for Employment Authorization. See 8 CFR 274a.13(c).
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\26\ Approval of an application for employment authorization
based on a pending asylum application is not discretionary. See 8
CFR 274a.13(a)(1).
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E. The Increasing Damage Caused by Immigrant Visa Backlogs
This proposed rule is intended, in part, to address some of the
challenges that flow from the statutory limits on immigrant visas,
consistent with existing DHS authorities. As noted above, the number of
employment-based immigrant visas allocated per year has remained
unchanged since the passage of the Immigration Act of 1990. In the
intervening 25 years, the country's economy has expanded dramatically.
The U.S. economy, as measured by U.S. gross domestic product (GDP), has
increased by 78 percent from $8.955 trillion in 1990 to $15.961
trillion in 2014.\27\ The per capita share of GDP has also increased by
almost 40 percent from $35,794 in 1990 to $50,010 in 2014.\28\ And the
number of entities doing business in the United States increased at
least 24 percent during the same period.\29\ Over the same period,
employer demand for immigrant visas has increasingly outpaced supply,
resulting in growing waits for sponsored employees to obtain their LPR
status. Such delays have resulted in substantial inequalities and other
hardships flowing from limits on a sponsored worker's ability to seek
employment to enhance his or her skills and on the ability of employers
to promote them or otherwise change their positions.
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\27\ U.S. Department of Commerce, Bureau of Economic Analysis,
Table 1.1.6 Real Gross Domestic Product, Chained (2009) Dollars,
https://www.bea.gov/iTable/index_nipa.cfm.
\28\ U.S. Department of Commerce, Bureau of Economic Analysis,
Table 7.1 Selected Per Capita Product and Income Series and Chained
(2009) Dollars, https://www.bea.gov/iTable/index_nipa.cfm.
\29\ Compare U.S. Census data collected in 1992 identifying over
4.61 million firms doing business in the United States, available at
http://www.census.gov/prod/www/economic_census.html, with U.S.
Census data collected in 2012 identifying over 5.72 million firms
doing business, available at http://www.census.gov/econ/susb/.
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Since AC21 was enacted in October of 2000, workers seeking LPR
status in the United States--particularly within the EB-2 and EB-3
preference categories--have faced increasing challenges as a
consequence of the escalating wait times for immigrant visas. It often
takes many years before an immigrant visa number becomes available. For
some, the delays can last more than a decade. The combination of
numerical limitations in the various employment-based preference
categories with the per-country limitations that further limit visa
availability to certain workers, has produced significant
oversubscription in the EB-2 and EB-3 categories, particularly for
Indian and Chinese nationals. For instance, the current approximate
backlog for an EB-3 immigrant visa for workers from most countries is
only a few months. For nationals of certain countries applying in the
EB-3 category, delays have extended more than a decade.\30\
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\30\ According to the DOS Visa Bulletin for November 2015,
immigrant visas are currently issuable to all persons qualifying
under the EB-1 preference category. The EB-2 category Application
Final Action date is current for all countries except for China and
India, with cut-off dates for nationals of those countries currently
set between 2006 and 2012 (a wait of 3 to 9 years). The Application
Final Action cut-off dates for nationals of most countries under the
EB-3 preference category are set at August 15, 2015 (a wait of less
than one month). But for Indian nationals, the Application Final
Action cut-off dates are set at April 1, 2004 (a wait of over 10
years). See DOS Visa Bulletin for November 2015, http://www.travel.state.gov/content/visas/en/law-and-policy/bulletin/2016/visa-bulletin-for-november-2015.html.
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Given the long and growing delays for many beneficiaries of
employment-based immigrant visa petitions, the challenges facing such
workers and the U.S. economy, while similar to those recognized by
AC21, are substantially greater than those that existed at the time
AC21 passed. Although DHS has worked diligently to improve processing
times during the intervening period, visa backlogs due to statutory
numerical limits for many individuals seeking EB-2 and EB-3
classification have grown significantly.\31\ DHS recognizes the
[[Page 81912]]
resulting realities confronting individuals seeking employment-based
permanent residence who, due to immigrant visa unavailability, are
required to wait many years for visa numbers to become available before
they can file applications for adjustment of status or seek immigrant
visas abroad and become LPRs. In many instances, these individuals are
in the United States in a nonimmigrant, employer-specific temporary
worker category (e.g., H-1B or L-1 visa classification) and may be
unable to accept promotions or otherwise change jobs or employers
without abandoning their existing efforts--including great investments
of time and money--to become permanent residents. Their employment
opportunities may be limited to their original job duties with the U.S.
employer that sponsored their temporary admission to the United States,
despite the fact that they may have gained professional experience that
would otherwise have allowed them to progress substantially in their
careers.
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\31\ According to the DOS Visa Bulletin for October 2000 (the
month AC21 was enacted), visa availability was current for all
persons qualifying under the EB-1 preference category. The EB-2
category was current for all countries except for China and India.
The EB-2 cut-off dates were March 8, 1999 for persons chargeable to
China (a wait of 19 months) and November 1, 1999 for persons
chargeable to India (a wait of 11 months). The EB-3 category
likewise was current for all countries except for China and India,
with a cut-off date of March 15, 1998 for individuals charged to
China (a wait of 31 months) and February 8, 1997 for individuals
charged to India (a wait of 44 months). See http://dosfan.lib.uic.edu/ERC/visa_bulletin/2000-10bulletin.html.
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Indeed, many individuals subject to the immigrant visa backlogs
confront the choice between remaining employed in a specific job under
the same terms and conditions originally offered to them or abandoning
either their place in the immigrant visa queue or the pursuit of LPR
status altogether. When such a worker changes employers or jobs--
including a change to an identical job with a different employer or to
a related job for the same employer--the worker is typically subject to
uncertainty as well as expensive additional immigration processes,
greatly discouraging any such changes. Indeed, under current
regulations, some changes in employment could result in the loss of
nonimmigrant status, loss of the ability to change to another
nonimmigrant status, loss of the ability to obtain an immigrant visa or
adjust to LPR status, and the need for the affected worker and his or
her family to immediately depart the United States. As a result, these
employees often suffer through many years of effective career
stagnation, as they are largely dependent on current employers for
immigration status and are substantially restricted in their ability to
change employers or even accept promotions from, or make lateral
movements within, their current employers.
Simply put, many workers in the immigrant visa process are not free
to consider all available employment and career development
opportunities. This effectively prevents U.S. employers from treating
them like the high-potential individuals the employer hired them to be,
thus restricting productivity and the promise they offer to our
nation's economy and undermining the very purpose of the employment-
based immigrant visa system that prioritizes such workers for LPR
status. The lack of predictability and flexibility for such workers may
also prevent them from otherwise investing in and contributing to the
local, regional, and national economy or fully assimilating into
American society.
IV. Proposed Regulatory Changes
DHS is proposing to amend its regulations related to certain
employment-based immigrant and nonimmigrant visa programs. The proposed
amendments are intended to benefit U.S. employers and workers
participating in these programs, including by: Streamlining the
processes for employer sponsorship of individuals for permanent
residence; ameliorating some of the effects of immigrant visa backlogs
by increasing job portability and otherwise providing stability and
flexibility for such workers; and providing additional transparency and
consistency in the application of agency policies and procedures
related to these programs. These changes are primarily aimed at
improving the ability of U.S. employers to employ and retain workers
who are beneficiaries of approved immigrant visa petitions and are
waiting for LPR status, while increasing the ability of such workers to
further their careers by accepting promotions, making lateral changes
within current employers, changing employers, and pursuing other
employment opportunities.
The improvements proposed in this rulemaking would help DHS fulfill
its responsibility to assist U.S. employers, U.S. workers, and foreign
national workers, while strengthening and protecting the U.S. economy.
The immigrant and nonimmigrant visa programs at issue in this proposed
rule were designed to improve the ability of U.S. employers to hire and
retain critical foreign workers, while creating job opportunities for
and protecting U.S. workers. Consistent with these provisions, the
proposed rule would enhance the Department's ability to administer the
INA in a manner that better accounts for fluctuating economic
conditions and that provides additional stability and flexibility to
regulated persons and entities.
A. Proposed Implementation of AC21 and ACWIA
DHS proposes to clarify and improve longstanding agency policies
and procedures established in response to certain sections of AC21 and
ACWIA. These sections were intended, among other things, to provide
greater flexibility and job portability to certain workers,
particularly those who have been sponsored for LPR status by their
employers, while protecting U.S. workers, enhancing opportunities for
innovation and expansion, and maintaining U.S. competitiveness. The
proposed rule would further clarify and improve agency policies and
procedures in this area--policies and procedures that have long been
set through a series of policy memoranda and a precedent decision of
the USCIS Administrative Appeals Office. By establishing such policies
in regulation, DHS would provide greater transparency and certainty to
affected employers and workers and increase consistency among agency
adjudications. In addition, the proposed rule would clarify several
interpretive questions raised by AC21 and ACWIA.
As noted above, except where improvements on current practices are
noted in the following sections, DHS intends the following proposals to
effectively capture the longstanding policies and procedures that have
developed since enactment of AC21 and ACWIA. The Department welcomes
all comments on these proposals, including those that identify any such
proposals that commenters believe are inconsistent with current
practices (and not identified as such in the preamble), so that any
such inconsistencies can be resolved in the final rule.
1. Extending H-1B Nonimmigrant Status for Certain Individuals Who Are
Being Sponsored for Lawful Permanent Residence
DHS proposes to codify in regulation and improve longstanding
agency policies and practices related to two provisions in AC21 that
allow for certain individuals who are being sponsored by employers for
permanent residence to obtain H-1B status beyond the general 6-year
maximum period of stay. The first provision provides an exemption to
certain beneficiaries of approved employment-based immigrant
[[Page 81913]]
visa petitions who are subject to per-country limitations on immigrant
visas that prevent the filing and adjudication of applications for
adjustment of status. The second provision provides an exemption to
certain H-1B nonimmigrant workers who are being sponsored for permanent
residence by U.S. employers and are subject to certain lengthy
adjudication delays.
a. H-1B Extensions for Individuals Affected by the Per-Country
Limitations
First, the proposed rule would clarify and improve DHS'
implementation of section 104(c) of AC21. See proposed 8 CFR
214.2(h)(13)(iii)(E). This section authorizes approval of H-1B status
beyond the general 6-year maximum period for certain beneficiaries of
approved EB-1, EB-2, and EB-3 immigrant visa petitions. See AC21
section 104(c). Specifically, section 104(c) authorizes such an
exemption from the 6-year limit when the H-1B petitioner can
demonstrate that an immigrant visa is not available to the beneficiary
at the time the H-1B petition is filed because the immigrant visa
classification sought is already over-subscribed for that beneficiary's
country of birth (i.e., is subject to the per-country limitations on
immigrant visas). Id.
Consistent with current practice, DHS proposes that such exemptions
be granted in 3-year increments until USCIS adjudicates the
beneficiary's adjustment of status application. See proposed 8 CFR
214.2(h)(13)(iii)(E)(1). Although the heading for section 104(c)
describes a ``one-time protection,'' the statutory text makes clear
that the exemption remains available until the beneficiary has an EB-1,
EB-2, or EB-3 immigrant visa number immediately available to him or
her. See AC21 section 104(c) (authorizing H-1B extensions under this
exemption ``until the alien's application for adjustment of status has
been processed and a decision made thereon''). As such, the proposed
rule ``enables these individuals to remain in H-1B status until they
are able to receive an immigrant visa and adjust their status within
the United States, thus limiting the disruption to American
businesses.'' See S. Rep. No. 260, at 22. Moreover, this proposal would
allow DHS to review the continued eligibility of the H-1B nonimmigrant
worker in 3-year intervals, which is consistent with the duration of H-
1B status awarded under general H-1B provisions. See 8 CFR
214.2(h)(9)(iii)(A)(1) and (h)(15)(ii)(B)(1). An H-1B petition filed
under this provision may include any time remaining within the normal
6-year period of authorized H-1B stay \32\ in addition to the exemption
request, but in no case may the approval period exceed 3 years or the
validity period of the LCA. See proposed 8 CFR 214.2(h)(13)(iii)(E)(5).
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\32\ Where applicable, the time remaining within the normal 6-
year period (``remainder time'') may include periods in which the
beneficiary was outside the United States during qualifying H-1B or
L-1 visa petition validity that the petitioner seeks to recapture
for the beneficiary. As noted previously, USCIS counts any time
spent in H-1B or L-1 status towards the limitation for either
classification. See 8 CFR 214.2(h)(13)(i)(B) and 214.2(l)(12)(i).
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DHS also proposes, consistent with current policy guidance, to make
this exemption available to individuals who remain eligible for an
additional period of admission in H-1B status, whether or not such
individuals are physically in the United States on H-1B status at the
time the H-1B petition is filed.\33\ See proposed 8 CFR
214.2(h)(13)(iii)(E)(3). Section 104(c) of AC21 does not specifically
limit the granting of H-1B status under its provisions to only those
individuals currently in H-1B status within the United States. Rather,
as is stated in current policy guidance, DHS interprets the provision
to require only that the individual have previously held H-1B status
and be otherwise eligible for an H-1B approval, including through an
extension of current H-1B status, a change to H-1B status, or
notification to a U.S. consulate or port of entry (if visa exempt).\34\
The petitioner bears the burden of proving the individual's eligibility
under this provision.
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\33\ Aytes Memo Dec. 2006 supra note 11 at 3-4.
\34\ Id.
---------------------------------------------------------------------------
Consistent with current practice, DHS proposes to allow any
qualified H-1B petitioner to file for an exemption under section 104(c)
with respect to any qualified beneficiary of an approved EB-1, EB-2, or
EB-3 immigrant visa petition. See proposed 8 CFR
214.2(h)(13)(iii)(E)(4). There is no requirement that the H-1B
petitioner be the same employer as that listed on the qualifying
immigrant visa petition, which by definition contemplates an offer of
future employment upon a grant of permanent residence.\35\ Similarly,
the H-1B nonimmigrant worker can rely on any currently approved and
qualifying immigrant visa petition, even if the H-1B nonimmigrant
worker had previously been granted an exemption under section 104(c)
based on a different petition.
---------------------------------------------------------------------------
\35\ See, e.g., Matter of Rajah, 25 I&N Dec. 127, 132-133 (BIA
2009).
---------------------------------------------------------------------------
As discussed later in this proposed rule, however, DHS is
effectively proposing to improve access to exemptions under section
104(c) by proposing amendments to DHS regulations promulgated under
section 205 of the INA, 8 U.S.C. 1155, that govern when approvals of
immigrant visa petitions are automatically revoked. See Section IV.B.
Pursuant to these amendments, employment-based immigrant visa petitions
that have been approved for 180 days or more would no longer have such
approval automatically revoked based only on withdrawal by the
petitioner or termination of the petitioner's business. See proposed 8
CFR 205.1(a)(3)(iii)(C) and (D). As long as such an approval has not
been revoked for fraud, material misrepresentation, the invalidation or
revocation of a labor certification, or USCIS error, the petition will
generally continue to be valid with regard to the beneficiary for
various job portability and status extension purposes under the
immigration laws. Id. As further described below, this change would
effectively improve the ability of H-1B nonimmigrants with approved EB-
1, EB-2, or EB-3 immigrant visa petitions to rely on such petitions for
obtaining exemptions under section 104(c) of AC21.
Finally, the proposed rule, as per current practice, would allow
exemptions authorized under section 104(c) of AC21 only with respect to
the principal beneficiaries of employment-based immigrant visa
petitions, and not any derivative beneficiaries named in such petitions
who may also be in H-1B status. See proposed 8 CFR
214.2(h)(13)(iii)(E)(6). Section 104(c) expressly allows H-1B
nonimmigrant status beyond the six-year general limitation for ``the
beneficiary of a petition filed under section 204(a) of [the INA] for a
preference status under paragraph (1), (2), or (3) of section 203(b)
[of the INA].'' AC21 section 104(c). Section 203(b), in turn, applies
to principal beneficiaries of immigrant visa petitions, but not
derivative beneficiaries who are separately addressed in section 203(d)
of the INA. Compare INA section 203(b), 8 U.S.C 1153(b), with INA
section 203(d), 8 U.S.C 1153(d). The reference to a single beneficiary
(i.e., ``the beneficiary'') in section 104(c) of AC21 further supports
the interpretation that the provision applies only to the principal
beneficiary of the immigrant visa petition. As noted above, however,
the spouse or dependent children of H-1B nonimmigrant workers are
eligible for H-4 status and are subject to the same period of
authorized stay as the principal H-1B nonimmigrant worker. Therefore,
eligible H-4 spouses and
[[Page 81914]]
dependent children may be granted H-4 status during the period the H-1B
nonimmigrant spouse or parent maintains H-1B status under this
exemption.
Thus, if both spouses are H-1B nonimmigrant workers, to extend
their H-1B authorized admission period under section 104(c) of AC21,
each spouse would individually have to be the beneficiary of an
approved EB-1, EB-2, or EB-3 immigrant visa petition. If only one
spouse is eligible for the exemption as an H-1B nonimmigrant, the
spouse who is not eligible could seek a change of status to H-4 status
and, if otherwise eligible, may remain in H-4 status, as described
above. While such a spouse may no longer be eligible to be employed as
an H-1B nonimmigrant, certain H-4 spouses may be eligible to apply for
and obtain work authorization pursuant to 8 CFR 214.2(h)(9)(iv),
including, among others, those whose H-1B nonimmigrant spouse is the
beneficiary of an approved EB-1, EB-2, or EB-3 immigrant visa petition.
DHS invites the public to comment on all aspects of this proposal.
b. H-1B Extensions for Individuals Affected by Lengthy Adjudication
Delays
Second, the proposed rule would clarify and improve DHS'
implementation of sections 106(a) and (b) of AC21, as amended by the
21st Century DOJ Appropriations Act. See proposed 8 CFR
214.2(h)(13)(iii)(D). These provisions authorize approval of H-1B
status beyond the general 6-year maximum period for certain H-1B
nonimmigrant workers who are being sponsored by their employers for
permanent residence and are subject to lengthy adjudication delays. See
AC21 section 106(a) and (b). Specifically, section 106(b) provides
extensions of H-1B status in 1-year increments for H-1B nonimmigrant
workers seeking LPR status through employment if 365 days or more have
passed since the filing by a U.S. employer of a labor certification
application or an employment-based immigrant visa petition on the
nonimmigrant's behalf. Id. These 1-year extensions would generally
remain available until a final decision is made to grant or deny the
pertinent labor certification application or immigrant visa petition,
or to grant or deny the beneficiary's application for adjustment of
status or for an immigrant visa. Id.
Consistent with existing policy, DHS proposes to make H-1B
extensions under section 106(b) available to workers who remain
eligible for additional periods of H-1B status, whether or not such
individuals are in H-1B status or in the United States at the time the
H-1B petition is filed. See proposed 8 CFR 214.2(h)(13)(iii)(D)(1). DHS
also proposes to allow the H-1B petitioner to file for an extension
under section 106(b) with respect to any qualifying labor certification
application or employment-based immigrant visa petition, pursuant to
section 106(a) of AC21, as amended. See proposed 8 CFR
214.2(h)(13)(iii)(D)(6).
As with section 104(c), section 106 of AC21 does not limit its
application only to those individuals currently in H-1B status within
the United States. DHS interprets the provision to require only that
the individuals have previously been issued H-1B status, meet the
requirements of section 106(a), and are otherwise eligible for an H-1B
approval.\36\ Also like section 104(c), section 106 contains no
requirement that the H-1B petitioner be the same employer as that
listed on the labor certification application or immigrant visa
petition in order to seek an exemption from the six-year period of
authorized admission. The H-1B nonimmigrant worker can thus rely on any
qualifying labor certification application or immigrant visa petition,
even if the nonimmigrant had previously been granted an extension under
section 106(b) based on a different application or petition. The
petitioner bears the burden of proving the individual's eligibility
under these provisions.
---------------------------------------------------------------------------
\36\ Aytes Memo Dec. 2006, at 3.
---------------------------------------------------------------------------
DHS also proposes to conform its regulations with existing policy
in this area by requiring the prospective H-1B employer to file an H-1B
petition demonstrating that the beneficiary has previously held H-1B
status and that 365 days has elapsed or will have elapsed between: (1)
The filing of an application for labor certification or an employment-
based immigrant visa petition on behalf of the individual; and (2) the
date on which the individual reached or will reach the 6-year
limitation on H-1B admission. See proposed 8 CFR
214.2(h)(13)(iii)(D)(1) and (2). DHS further proposes, consistent with
current policy, to grant H-1B approvals in 1-year increments for such
individuals until either the application for labor certification
expires or a final decision is made to: (1) Deny the labor
certification application; (2) revoke or invalidate approval of the
labor certification application; (3) deny the immigrant visa petition;
(4) revoke approval of the immigrant visa petition; (5) grant or deny
the individual's application for adjustment of status or for an
immigrant visa; or (6) administratively close the application for
permanent labor certification, immigrant visa petition, or application
for adjustment of status. See proposed 8 CFR
214.2(h)(13)(iii)(D)(2).\37\ DHS notes that in cases involving denials,
invalidations, or revocations of labor certification applications and
denials of immigrant visa petitions, the petitioner may
administratively appeal those determinations with DOL and USCIS,
respectively. Under this proposed rule, a denial or revocation would
not be considered final by USCIS during the period authorized to file
such an administrative appeal, or during the period in which any such
appeal is pending. See proposed 8 CFR 214.2(h)(13)(iii)(D)(3). During
any such period, as with current practice, the petition or labor
certification application that is the subject of the appeal may be used
for purposes of seeking an extension of H-1B status under this
section.\38\
---------------------------------------------------------------------------
\37\ See Aytes Memo Dec. 2005, at 6.
\38\ See Aytes Memo Dec. 2005, at 6.
---------------------------------------------------------------------------
Also consistent with existing policy, DHS proposes not to grant an
extension of H-1B status under section 106(b) if, at the time the
extension request is filed, the labor certification is deemed expired
under DOL regulations. See proposed 8 CFR 214.2(h)(13)(iii)(D)(2).
Under current DOL regulations, ``[a]n approved permanent labor
certification granted on or after July 16, 2007 expires if not filed in
support of a Form I-140 [employment-based immigrant visa] petition with
[DHS] within 180 calendar days of the date [DOL] granted the
certification.'' 20 CFR 656.30(b)(1). DHS treats a labor certification
that has expired similarly to one that has been denied or revoked.
Indeed, DHS automatically rejects or denies immigrant visa petitions
related to expired labor certifications, effectively barring the
granting of extensions under section 106(b) in such cases.\39\
---------------------------------------------------------------------------
\39\ DHS also proposes to conform its regulations to current
policy regarding the substitution of beneficiaries in labor
certification applications. See proposed 8 CFR
214.2(h)(13)(iii)(D)(4). In 2007, DOL changed its regulations to
effectively prohibit the substitution of labor certification
beneficiaries, except for substitution requests submitted on or
before July 16, 2007. See 20 CFR 656.11(a). With respect to
substitutions occurring before July 16, 2007, DHS policy now
provides that for purposes of section 106(b) of AC21, the labor
certification application may only be used for the most recently
substituted individual. See Neufeld Memo May 2008, at 5 n.4. DHS
proposes to conform its regulations accordingly, which will prevent
multiple individuals from using the same labor certification to
obtain H-1B extensions under this proposed rule.
---------------------------------------------------------------------------
DHS also proposes to conform its regulations with current policy by
[[Page 81915]]
allowing petitioners to file H-1B petitions under sections 106(a) and
(b) as early as 6 months prior to the requested H-1B start date. See
proposed 8 CFR 214.2(h)(13)(iii)(D)(5). The petitioner would generally
be required to demonstrate that the individual will meet the
requirements of sections 106(a) and (b) as of the date he or she will
reach the end of the 6-year period of H-1B admission. This request may
include any time remaining within the general 6-year period, including,
for example, periods of time spent outside the United States during H-
1B petition validity, for which ``recapture'' of H-1B remainder time is
sought, as well as any H-1B ``remainder'' periods available to the
foreign national.\40\ But in no case may the approval period exceed 3
years or the validity period of the LCA. See proposed 8 CFR
214.2(h)(13)(iii)(D)(5); see also 8 CFR 214.2(h)(9)(iii)(A)(1) and
(h)(15)(ii)(B).
---------------------------------------------------------------------------
\40\ See Aytes Memo Dec. 2006, at 4. (``The `remainder' period
of the initial six-year admission period refers to the full six-year
period of admission minus the period of time that the individual
previously spent in the United States in valid H-1B status.'') USCIS
policy relating to such ``recapture'' is discussed in greater detail
below at section IV.C.(2), ``Calculating the 6-Year H-1B Authorized
Admission Period.'' The ``remainder'' period is discussed at
IV.C.(2), ``Recapture of H-1B Remainder Period.''
---------------------------------------------------------------------------
Moreover, each approval granted under sections 106(a) and (b) will
provide the beneficiary with a new date upon which the limitation on H-
1B admission will be reached. Employers filing an H-1B petition seeking
a second or subsequent extension of H-1B status for a beneficiary under
sections 106(a) and (b) must demonstrate that a qualifying labor
certification or immigrant visa petition was filed at least 365 days
prior to the new H-1B expiration date authorized under that
section.\41\ See proposed 8 CFR 214.2(h)(13)(iii)(D)(7). However, only
one labor certification application or immigrant visa petition may be
used to establish eligibility in support of any single H-1B petition
filed under sections 106(a) and (b). A petitioner may not aggregate the
days on which multiple labor certification applications or immigrant
visa petitions are on file in order to satisfy the 365-day requirement.
See proposed 8 CFR 214.2(h)(13)(iii)(D)(8).
---------------------------------------------------------------------------
\41\ As noted above, the H-1B petitioner need not be the same
employer that filed the labor certification or immigrant visa
petition.
---------------------------------------------------------------------------
DHS proposes, consistent with current practice, to allow
applications for extensions under section 106(b) to be filed only by
principal beneficiaries seeking to obtain status under section 203(b)
of the INA, and not by derivative beneficiaries described in section
203(d) of the INA. See proposed 8 CFR 214.2(h)(13)(iii)(D)(9). Section
106(a) expressly limits eligibility to individuals who have been
accorded H-1B status and who have had a labor certification application
or employment-based immigrant visa petition filed on their behalf. See
AC21 section 106(a), as amended. H-4 dependents do not meet these
statutory criteria. As noted previously, however, dependents in H-4
status are subject to the same period of authorized stay as the
principal H-1B nonimmigrant worker. Therefore, eligible H-4 spouses and
dependent children may be granted H-4 status during the period the H-1B
nonimmigrant spouse or parent maintains H-1B status under section 106.
Finally, DHS proposes to restrict extensions of H-1B status under
sections 106(a) and (b) for beneficiaries who have not taken certain
steps in furtherance of obtaining LPR status. As noted above, these
sections were intended to allow individuals to remain in the United
States as H-1B nonimmigrant workers while pursuing permanent residence.
See S. Rep. No. 260, at 23. Accordingly, the proposed rule would
generally require that to remain eligible for extensions of H-1B status
under sections 106(a) and (b), the individual must file an application
for adjustment of status or submit an application for an immigrant visa
within 1 year of an immigrant visa becoming immediately available. See
proposed 8 CFR 214.2(h)(13)(iii)(D)(10). This requirement would be
effectively tolled, however, during any period in which an application
for adjustment of status could not be filed due to the unavailability
of immigrant visas. Id. Moreover, if the accrual of the 1-year period
is interrupted by the retrogression of previously available immigrant
visas, the individual would be permitted a full new 1-year period to
seek LPR status when immigrant visas become available again. Id. In
addition, failure to file within such year could be excused at the
discretion of DHS if the individual establishes that the failure to
apply was due to circumstances beyond his or her control. Id.
DHS invites the public to comment on all aspects of this proposal.
2. Job Portability Under AC21 for Certain Applicants for Adjustment of
Status
DHS is proposing to clarify and improve policies and procedures
related to the job portability protections provided by section 106(c)
of AC21. See proposed 8 CFR 245.25. That section amended the INA by
adding section 204(j), codified at 8 U.S.C. 1154(j), to enhance the
ability of certain workers to change jobs or employers if they have
been sponsored for permanent residence by U.S. employers and have
pending applications for adjustment of status. See AC21 section 106(c).
Specifically, section 204(j) of the INA provides that an employment-
based immigrant visa petition filed for EB-1 (other than for ``aliens
of extraordinary ability''), EB-2, or EB-3 classification will remain
valid with respect to a new qualifying job offer when the worker
changes jobs or employers if an application for adjustment of status
has been filed and remains pending for 180 days or more. See INA
section 204(j), 8 U.S.C. 1154(j); see also INA sections 204(a)(1)(F)
and 212(a)(5)(A)(iv), 8 U.S.C. 1154(a)(1)(F) and 1182(a)(5)(A)(iv).
Section 204(j) allows such portability when the new job offer is for a
job which is in the same or a similar occupational classification as
the job for which the original immigrant visa petition was filed. Id.
To provide greater clarity to the regulated community and enhance
consistency across agency determinations under section 204(j) of the
INA, DHS proposes to update and conform its regulations governing
adjustment of status consistent with longstanding agency policy. For
purposes of approving an application for adjustment of status, the
proposed rule would clarify that an immigrant visa petition for EB-1
(other than for ``aliens of extraordinary ability''), EB-2, or EB-3
classification filed under section 204(a)(1)(F) of the INA, 8 U.S.C.
1154(a)(1)(F), remains valid if the petition is approved and either:
(1) The employment offer from the petitioning employer is
continuing and remains bona fide; or
(2) pursuant to section 204(j), the beneficiary has a new offer of
employment in the same or a similar occupational classification as the
employment offer listed in the approved petition, the application for
adjustment of status based on this petition has been pending for 180
days or more, and the approval of the petition has not been revoked.
See proposed 8 CFR 245.25(a). Under the second option, the new
offer of employment may be from the petitioning employer, from a
different U.S. employer, or based on self-employment. Id. Under either
option, the individual and his or her U.S. employer must intend that
the individual will be employed under the continuing or new employment
offer (including self-employment), as
[[Page 81916]]
applicable, upon the individual's grant of LPR status. Id.
Although the individual need not have been employed at any time by
the employer that filed the immigrant visa petition--or, in a case
involving section 204(j) portability, the employer presenting the new
offer of employment--DHS will in all cases determine whether a relevant
offer of employment is bona fide. In cases involving 204(j)
portability, DHS considers whether the employer that filed the
immigrant visa petition had the intent, at the time the petition was
approved, to employ the beneficiary upon approval of the application
for adjustment of status.\42\ With respect to the new employer, DHS
considers whether the employer intends to employ the beneficiary in the
offered position, and whether the beneficiary intends to work in that
position, upon approval of the application for adjustment of
status.\43\
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\42\ See USCIS Adjudicator's Field Manual, Chapter 20.2(c).
\43\ See Aytes Memo Dec. 2005, at 4; Matter of Cardoso, 13 I. &
N. Dec. 228, 230-31 (BIA 1969).
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As noted above, DHS is proposing to amend its regulations governing
applications for adjustment of status to prohibit approval of such an
application when the approval of the immigrant visa petition on which
the application is based has been revoked. See proposed 8 CFR
245.25(a). DHS is also proposing, however, as discussed in section
IV.B., to amend its regulations governing revocation of petition
approval so that employment-based immigrant visa petitions that have
been approved for 180 days or more would no longer have such approval
automatically revoked based only on withdrawal by the petitioner or
termination of the petitioner's business. See proposed 8 CFR
205.1(a)(3)(iii)(C) and (D). As long as such an approval has not been
revoked for fraud, material misrepresentation, the invalidation or
revocation of a labor certification, or USCIS error, the petition would
generally continue to be valid for purposes of section 204(j) job
portability and certain status extension purposes under the immigration
laws. Id. Such a petition, however, cannot on its own serve as the
basis for obtaining an immigrant visa or adjustment of status as there
is no longer a bona fide employment offer related to the petition. Id.
In such cases, the beneficiary will need a new immigrant visa petition
approved on his or her behalf, or a new offer of employment in section
204(j) portability cases, in order to obtain an immigrant visa or
adjust status. Id.
Taken together, these regulatory changes are generally consistent
with current policy concerning adjustment of status. The regulatory
amendments, for example, do not change existing policy with respect to
applications for adjustment of status filed by beneficiaries of
immigrant visa petitions who seek to adjust status based on a
continuing offer of employment from the petitioning employer. In such
cases, if the petitioning employer withdraws or goes out of business,
there would be no continuing offer of employment on which the
beneficiary may rely. Thus, even in a case where such a petition has
been approved for at least 180 days and would no longer be subject to
automatic revocation based upon withdrawal of the petition or
termination of the employer's business, the beneficiary would remain
ineligible to file for adjustment of status based solely on that
petition. See proposed 8 CFR 204.5(a)(3)(iii)(C) and (D); see also
proposed 8 CFR 245.25(a). Under this proposed rule, the beneficiary
would require a new immigrant visa petition filed on his or her behalf
in order to file for or receive adjustment of status. Id.
With respect to beneficiaries who have applications for adjustment
of status that have been pending for at least 180 days and seek to
adjust status pursuant to section 204(j), the proposed regulations are
also consistent with current policy, except in one respect. Under
current policy, withdrawal by the petitioner in such cases does not
require the beneficiary to be named in a new immigrant visa petition;
rather, the beneficiary would only be required to demonstrate, pursuant
to section 204(j) of the INA, that he or she has a new offer of
employment in a same or similar occupational classification.\44\ This
would continue to be the case under this proposed rule. See proposed 8
CFR 204.5(a)(3)(iii)(C); see also proposed 8 CFR 245.25(a). The
proposed rule would, however, expand such treatment to cover cases in
which the petitioner's business terminates after the application for
adjustment of status has been pending for at least 180 days. Under
current policy, termination of the employer's business in such cases
would require the beneficiary to be named in a new employment-based
immigrant visa petition in order to adjust status. Under the proposed
rule, the beneficiary would not be required to have a new immigrant
visa petition filed on his or her behalf, and instead would be required
to demonstrate that he or she has a new offer of employment in a same
or similar occupational classification, consistent with section 204(j)
of the INA. Id. DHS believes that such an extension of section 204(j)
portability is consistent with congressional intent to allow long-
delayed applicants for adjustment of status to change employers with
reasonable assurance that they will not be disadvantaged by so
doing.\45\
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\44\ See Aytes Memo Dec. 2005, at 4-5.
\45\ DHS also proposes conforming changes to 8 CFR 204.5 to
ensure the retention of priority dates related to certain
employment-based immigrant visa petitions that are approved for less
than 180 days when a petitioner withdraws the petition or the
petitioner goes out of business. In such cases, the priority date
listed in the petition may still be used for section 204(j)
portability purposes. This regulatory amendment codifies current
agency policy and practice. See proposed 8 CFR 204.5(e)(5).
---------------------------------------------------------------------------
DHS is further proposing a new supplementary form to the
application for adjustment of status to assist the Department in the
adjudicative process. In general cases, the supplementary form will
assist DHS in confirming that a job offer described in an employment-
based immigrant visa petition is still available at the time an
individual files an application for adjustment of status. In cases
involving section 204(j) portability requests, the form will assist DHS
in determining, among other things, whether a new offer of employment
is in the same or a similar occupational classification as the job
offer listed in the immigrant visa petition. In section 204(j) cases,
an individual may submit the supplement affirmatively or when required
at the request of USCIS to establish eligibility under the proposed
regulatory requirements. Currently, DHS is not proposing an extra fee
for submission of this new supplement, but may consider implementing a
fee in the future.
DHS contemplates that applicants for adjustment of status seeking
approval based on a new offer of employment will submit various pieces
of evidence, along with the supplementary form, demonstrating
compliance with section 204(j) and the proposed regulations. Unless
instructed otherwise, including by the form or form instructions, an
applicant will be able to submit: (1) A written attestation signed by
the applicant and employer describing the new employment offer,
including a description of the position and its requirements; (2) an
explanation demonstrating that the new employment offer is in the same
or a similar occupational classification as the original employment
offer listed in the approved petition; and (3) a copy of the Notice of
Action (Form I-797C) issued by USCIS (or, if unavailable, secondary
evidence) showing that the individual's application for adjustment of
status has
[[Page 81917]]
been pending with USCIS for 180 days or more. See proposed 8 CFR
245.25(b)(2).
Because the statute does not define the terms ``same'' or
``similar,'' DHS proposes definitions for those terms based on their
common dictionary definitions, as well as the agency's practice and
experience in this context.\46\ The proposed regulatory provision
accordingly defines ``same occupational classification'' as an
occupation that resembles in every relevant respect \47\ the occupation
for which the underlying employment-based immigrant visa petition was
approved.\48\ See proposed 8 CFR 245.25(c). The term ``similar
occupational classification'' is defined as an occupation that shares
essential qualities or has a marked resemblance or likeness with the
occupation for which the underlying employment-based immigrant visa
petition was approved.\49\ Id.
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\46\ See Taniguchi v. Kan Pacific Saipan, Ltd., 132 S. Ct. 1997,
2002-03 (2012) (when a term goes undefined in a statute, an agency
ordinarily should ``give the term its ordinary meaning'').
\47\ For these purposes, USCIS adjudicators may consider, among
other factors, the job duties of the respective jobs, and the
skills, experience, education, training, licenses or certifications
specifically required to perform each of the jobs.
\48\ See, e.g., Same Definition, Merriam-Webster.com, http://www.merriam-webster.com/dictionary/same (last visited May 20, 2015)
(defining ``same'' as ``identical'' or ``resembling in every
relevant respect''); Same Definition, OED.com, http://www.oed.com/view/Entry/170362?redirectedFrom=same#eid (last visited Jan. 2,
2015) (defining ``same'' as ``identical'').
\49\ See, e.g., Similar Definition, Merriam-Webster.com, http://www.merriam-webster.com/dictionary/similar (last visited May 20,
2015) (defining ``similar'' as ``alike in substance or
essentials''); Similar Definition, Oed.com, http://www.oed.com/view/Entry/179873?redirectedFrom=similar#eid (last visited May 20, 2015)
(defining ``similar'' as ``having a marked resemblance or
likeness'').
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DHS invites the public to comment on all aspects of this proposal,
including the new proposed supplementary form to the application for
adjustment of status (and form instructions) and the possibility of
charging a supplemental fee in the future related to such form.
3. Job Portability for H-1B Nonimmigrant Workers
DHS proposes to conform its regulations to its policies and
practices under section 105(a) of AC21, which amended the INA by adding
the H-1B job portability provision at section 214(n), 8 U.S.C. 1184(n).
This section enhances the ability of H-1B nonimmigrant workers to
change jobs or employers by authorizing them to accept new or
concurrent employment upon the filing of a non-frivolous H-1B petition
(``H-1B portability petition''). See INA section 214(n), 8 U.S.C.
1184(n). The H-1B nonimmigrant worker must have been lawfully admitted
into the United States, must not have worked without authorization
subsequent to such lawful admission, and must be in a period of stay
authorized by the Secretary of Homeland Security.\50\ Employment
authorization under the pending H-1B portability petition continues
until its adjudication. Id.
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\50\ Neufeld Memo May 2009 (describing various ``periods of
authorized stay'').
---------------------------------------------------------------------------
In harmony with the statutory provision, the proposed rule would
provide that H-1B nonimmigrant workers who are beneficiaries of new H-
1B petitions seeking an amendment or extension of their stay in H-1B
status are eligible to commence new or concurrent employment upon the
filing of a non-frivolous H-1B petition by that employer. See proposed
8 CFR 214.2(h)(2)(i)(H). If the H-1B nonimmigrant worker meets the
requirements of section 214(n), he or she is authorized to commence new
employment while adjudication of the new H-1B petition is pending. Id.
If the petition is approved, the H-1B nonimmigrant worker's employment
authorization continues under the approved petition. Id. If the
petition is denied, employment authorization under section 214(n)
generally ceases upon the date of denial.\51\ Id.
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\51\ If the petition is denied after the H-1B nonimmigrant
worker's Arrival-Departure Record (Form I-94) or successor form) has
expired, and while the H-1B nonimmigrant worker is in an authorized
period of stay consistent with 8 CFR 274a.12(b)(20) and proposed
revisions to 8 CFR 274a.12(b)(9), DHS intends to interpret section
214(g)(4) of the INA, 8 U.S.C. 1184(g)(4), to count the time spent
in the United States based on a timely filed H-1B extension of stay
petition towards the 6 year H-1B period of authorized admission.
---------------------------------------------------------------------------
DHS proposes, consistent with current policy, to make the H-1B
portability provision discussed in this section available only to H-1B
beneficiaries who are in the United States in H-1B status.\52\ This
interpretation is consistent with the language of section 214(n), which
requires in part that the H-1B nonimmigrant worker have been lawfully
admitted into the United States at the time the new H-1B petition is
filed. See INA section 214(n), 8 U.S.C. 1184(n). This interpretation is
also in harmony with congressional intent behind the creation of the
provision. As noted in the Senate Report accompanying the bill, the H-
1B portability provision was intended to ``respond[ ] to concerns
raised about the potential for exploitation of H-1B visa holders as a
result of a specific employer's control over the employee's legal
status.'' See S. Rep. No. 260, at 22-23.
---------------------------------------------------------------------------
\52\ Aytes Memo Dec. 2005, at 7.
---------------------------------------------------------------------------
DHS also proposes to conform its regulations to current policy
regarding the ability of H-1B employers to file successive H-1B
portability petitions (often referred to as ``bridge petitions'') on
behalf of H-1B nonimmigrant workers. Under current policy, an H-1B
nonimmigrant worker who has changed employment based on an H-1B
portability petition filed on his or her behalf may again change
employment based on the filing of a new H-1B portability petition, even
if the former H-1B portability petition remains pending.\53\ Approval
of any subsequent H-1B portability petition, however, would effectively
be dependent on the approval of any prior H-1B portability petition if
the individual's Arrival-Departure Record (Form I-94) has expired and
the prior portability petitions remain pending at the time that the
subsequent portability petition is filed. In such a case, where the
request for an extension of stay was denied in a preceding H-1B
portability petition, a request for an extension of stay in any
successive H-1B portability petition(s) must also be denied. See
proposed 8 CFR 214.2(h)(2)(i)(H)(3). DHS proposes to maintain this
policy in order to best achieve the ameliorative purpose of section
212(n) to enhance the job flexibility of H-1B nonimmigrant workers and
minimize their potential exploitation by employers.
---------------------------------------------------------------------------
\53\ Aytes Memo Dec. 2005, at 7.
---------------------------------------------------------------------------
DHS is also proposing conforming changes to its employment
authorization regulations to recognize the employment authorization of
H-1B nonimmigrant workers who are employed pursuant to an H-1B
portability petition filed under section 214(n) of the INA. See
proposed 8 CFR 274a.12(b)(9). Specifically, the proposed rule would add
this class of H-1B nonimmigrant workers to the description of H
nonimmigrants authorized for employment incident to status with a
specific employer. Id.
DHS invites the public to comment on all aspects of this proposal.
4. Calculating the H-1B Admission Period
DHS proposes to clarify in regulation its current policy with
respect to calculating and ``recapturing'' what is known as ``remainder
time'' for H-1B nonimmigrant workers. See proposed 8 CFR
214.2(h)(13)(iii)(C). Currently, with respect to an H-1B nonimmigrant
worker's maximum period of authorized admission in H-1B status, DHS
does not count against this period any days he or
[[Page 81918]]
she spent outside of the United States during the validity period of
the H-1B petition.\54\ Any such period outside the United States may
still be used, or ``recaptured,'' by an H-1B petitioner on behalf of
the H-1B nonimmigrant worker.\55\ An H-1B petitioner seeking to
recapture such time must establish, through objective, documentary
evidence--such as passport stamps, Arrival-Departure Records (Forms I-
94), or airline ticket stubs--that the H-1B nonimmigrant worker was in
fact physically outside of the United States during the day(s) for
which recapture is sought.\56\
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\54\ See Aytes Memo Oct. 2005.
\55\ Id.
\56\ To assist in the adjudication process, a petitioner may
also provide complementary evidence explaining any such time to be
recaptured, such as a chart indicating the dates spent outside of
the United States and referencing the relevant objective documentary
evidence supporting the chart.
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DHS proposes to codify this policy through this rulemaking. Under
this proposed rule, time spent outside the United States by an
individual during the validity of an H-1B petition that was approved on
his or her behalf could be added back to or ``recaptured'' for his or
her maximum period of authorized admission as an H-1B nonimmigrant
worker. See proposed 8 CFR 214.2(h)(13)(iii)(C); see also INA section
214(g)(4), 8 U.S.C. 1184(g)(4) (generally establishing a 6-year limit
on the period of stay of an H-1B nonimmigrant worker). Consistent with
current practice, if an H-1B nonimmigrant worker had counted against
the H-1B numerical cap with respect to the 6-year maximum period of H-
1B admission from which recapture is sought, then the H-1B petition
seeking recapture of such time (``H-1B recapture petition'') would not
subject the H-1B nonimmigrant worker again to the cap.\57\ See proposed
8 CFR 214.2(h)(13)(iii)(C)(2). If the H-1B nonimmigrant worker had not
counted against the H-1B cap in such a case, the recapture petition
would be cap-subject (i.e., require that the H-1B nonimmigrant worker
count against the cap), unless the H-1B nonimmigrant worker is eligible
for another exemption from the cap.
---------------------------------------------------------------------------
\57\ This analysis would also be applied to cases in which the
worker has been outside the United States for a full year and would
thus be eligible for a new period of admission under section
214(g)(4) of the INA, 8 U.S.C. 1184(g)(4). In such cases, the H-1B
petitioner may file a recapture petition or a petition seeking a new
period of H-1B admission. If the petitioner does not include a
recapture request in the H-1B petition, DHS generally would treat
the petition as a request for a new 6-year maximum H-1B admission
period under section 214(g)(4) of the INA, 8 U.S.C. 1184(g)(4). The
worker in such a case would be subject to the numerical cap unless
an exemption applies.
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In accordance with current policy, the H-1B petitioner would bear
the burden of demonstrating ``recapture'' eligibility. Along with
documentary evidence, the petitioner may provide complementary,
explanatory evidence (as described above) to assist USCIS adjudicators
in the adjudication process. See proposed 8 CFR
214.2(h)(13)(iii)(C)(1). Moreover, as with current practice, an H-1B
petitioner filing a recapture petition would not need to demonstrate
that the time spent outside the United States by the H-1B nonimmigrant
worker was meaningfully interruptive of the H-1B period in which
recapture is sought. The reason for the absence is irrelevant to the
recapture determination, but such reason may be relevant to the
determination of the individual's admissibility. Any trip of at least
one continuous 24-hour period (``day'') outside the United States for
any purpose may be recaptured.
DHS invites public comment on all aspects of this proposal.
5. Exemptions from the H-1B Numerical Cap Under AC21 and ACWIA
a. Employers Not Subject to H-1B Numerical Limitations
DHS proposes to clarify and improve its regulations and policies
identifying which employers are cap-exempt under the H-1B program. As
discussed above in section III.C.2.b.i., AC21 amended section 214(g)(5)
of the INA to allow certain employers to employ H-1B nonimmigrant
workers without application of the numerical cap on H-1B visas. See
AC21 section 103 (adding paragraphs (5), (6), and (7) to INA section
214(g), 8 U.S.C. 1184(g)). As amended by AC21, section 214(g)(5) of the
INA specifically exempts from the H-1B cap those H-1B nonimmigrant
workers who are employed (1) ``at an institution of higher education .
. . , or a related or affiliated nonprofit entity,'' or (2) ``at a
nonprofit research organization or a governmental research
organization.'' INA section 214(g)(5), 8 U.S.C. 1184(g)(5). DHS is now
proposing to codify its long-standing policy interpretations regarding
this exemption from the cap. See proposed 8 CFR 214.2(h)(8)(ii)(F).
DHS has interpreted this provision to exempt H-1B nonimmigrant
workers in two types of circumstances. First, H-1B nonimmigrant workers
are currently exempt from the cap if they are employed directly by an
employer described in section 214(g)(5) of the INA, 8 U.S.C.
1184(g)(5). Thus, any H-1B nonimmigrant worker would be exempt if
employed directly by: (1) An institution of higher education, (2) a
nonprofit entity related to or affiliated with such an institution, (3)
a nonprofit research organization, or (4) a governmental research
organization. See proposed 8 CFR 214.2(h)(8)(ii)(F)(1)-(3). Second,
because section 214(g)(5) exempts workers who are employed ``at'' such
qualifying institutions, organizations, or entities, H-1B nonimmigrant
workers may also be exempt from the cap in certain circumstances even
when they are not directly employed by them.\58\ See proposed 8 CFR
214.2(h)(8)(ii)(F)(4). Under current policy, such H-1B nonimmigrant
workers may only be treated as cap exempt when: (1) The employment is
located at a qualifying institution, organization, or entity; and (2)
the H-1B nonimmigrant worker will perform job duties that directly and
predominately further the normal, primary, or essential purpose,
mission, objectives or function of the qualifying institution,
organization, or entity.\59\
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\58\ In contrast to the ``employed at'' terminology used in
section 214(g)(5) of the INA, 8 U.S.C. 1184(g)(5), other provisions
governing the H-1B program use terminology limited to a direct
employer-employee relationship with a qualifying employer. Section
212(p)(1) of the INA, 8 U.S.C. 1182(p)(1), for example, provides for
special prevailing wage computations where an H-1B nonimmigrant is
to be an ``employee of'' a qualifying institution, organization, or
entity. Similarly, section 214(c)(9)(A) of the INA, 8 U.S.C.
1184(c)(9)(A), exempts only qualifying employers from certain H-1B
petition fees enacted under ACWIA. Unlike section 214(g)(5), these
provisions clearly apply only when the H-1B petitioner is itself a
qualifying employer.
\59\ Aytes Memo June 2006, at 2-3 and note 2.
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DHS is now proposing to amend its regulations, in part, to provide
additional clarity with respect to the ``employed at'' statutory
language. See proposed 8 CFR 214.2(h)(8)(ii)(F)(4). Under the proposed
rule, an H-1B petitioner that is not itself a qualifying institution,
organization or entity may claim an exemption from the cap for an H-1B
nonimmigrant worker employed at such organization or entity if: (1) The
majority of the worker's duties will be performed at a qualifying
institution, organization, or entity; and (2) such job duties directly
and predominately further the essential purpose, mission, objectives or
functions of the qualifying institution, organization or entity (e.g.,
higher education, or nonprofit or governmental research). Id. In such
cases, the burden is on the petitioner to establish by a preponderance
of the evidence that there is a nexus between the work performed by the
H-1B nonimmigrant worker and the essential purpose, mission, objectives
or
[[Page 81919]]
functions of the qualifying institution, organization, or entity.
DHS also proposes to conform its regulations to current policy with
respect to the definitions of several terms in section 214(g)(5) and
the applicability of these terms to both: (1) ACWIA provisions that
require the payment of fees by certain H-1B employers; and (2) AC21
provisions that exempt certain employers from the H-1B numerical caps.
First, the proposed rule would expressly adopt for the purpose of cap
exemption the definition of the term ``institution of higher
education'' provided by section 101(a) of the Higher Education Act.\60\
See proposed 8 CFR 214.2(h)(8)(ii)(F)(1). Notably, this definition does
not include for-profit institutions of higher education, which would
continue to be subject to the H-1B cap. The proposed rule would also
adopt definitions for the terms ``nonprofit research organization'' and
``governmental research organization'' as currently set forth in DHS
regulations at 8 CFR 214.2(h)(19)(iii). See proposed 8 CFR
214.2(h)(8)(ii)(F)(3). The proposed rule additionally clarifies that an
entity would be considered a ``nonprofit entity'' for purpose of
proposed 8 CFR 214.2(h)(8)(ii)(F) if it meets the definition of that
term at 8 CFR 214.2(h)(19)(iv).
---------------------------------------------------------------------------
\60\ See id, note 1.
---------------------------------------------------------------------------
Furthermore, consistent with current DHS regulations, see 8 CFR
214.2(h)(19)(iii)(B), the term ``related or affiliated nonprofit
entity'' would be defined, both for ACWIA fee and cap exemption
purposes, to continue to include nonprofit entities that are: (1)
Connected or associated with an institution of higher education through
shared ownership or control by the same board or federation; (2)
operated by an institution of higher education; or (3) attached to an
institution of higher education as a member, branch, cooperative, or
subsidiary. See proposed 8 CFR 214.2(h)(8)(ii)(F)(2). DHS intends to
improve upon current policy, however, by proposing additional means by
which nonprofit entities may establish a sufficient relation or
affiliation with an institution of higher education. This change would
better reflect current operational realities for institutions of higher
education and how they interact with, and sometimes rely on, nonprofit
entities. See proposed 8 CFR 214.2(h)(8)(ii)(F)(2)(iv) and
(h)(19)(iii)(B).
In particular, based on its experience in this area, DHS believes
that the current definition for ``affiliated or related nonprofit
entities'' does not sufficiently account for the nature and scope of
common, bona fide affiliations between nonprofit entities and
institutions of higher education. To better account for such
relationships, DHS proposes to expand on the current definition by
including nonprofit entities that have entered into formal written
affiliation agreements with institutions of higher education and are
able to meet two additional criteria. First, such entities must
establish an active working relationship with the institution of higher
education for the purposes of research or education. Second, they must
establish that one of their primary purposes is to directly contribute
to the research or education mission of the institution of higher
education. See proposed 8 CFR 214.2(h)(8)(ii)(F)(2)(iv) and
(h)(19)(iii)(B)(4).
This proposed definition provides much needed flexibility in this
area, allowing DHS to better account for the full range of nonprofit
entities that are ``related or affiliated'' with institutions of higher
education and thus better ensure that such entities are not subject to
the H-1B cap or the ACWIA fee as Congress intended. For example, under
federal statute, Veterans Affairs (VA) hospitals are considered
affiliated with a medical school or institution of higher learning
based on ``a contract or agreement . . . for the training or education
of health personnel.'' 38 U.S.C. 7423(d)(1). But such agreements may be
inadequate under the current regulatory definition to establish the
requisite affiliation or relation for purposes of the H-1B cap or ACWIA
fee exemptions. Such bona fide affiliation contracts or agreements are
common in the private sector as well. DHS believes the proposed
definition better captures these and other valid types of relationships
with institutions of higher education that are contemplated under AC21
and ACWIA.
DHS welcomes public comment on all aspects of this proposal.
b. Counting Previously Exempt H-1B Nonimmigrant Workers
DHS also proposes to conform its regulations to existing policy for
determining when a change in employment requires a previously exempt H-
1B nonimmigrant worker to be counted against the H-1B cap. See proposed
8 CFR 214.2(h)(8)(ii)(F)(5). As discussed above, an H-1B nonimmigrant
worker is exempt from the H-1B cap if he or she is employed at an
institution of higher education, a nonprofit entity related or
affiliated to such an institution, a nonprofit research organization,
or a governmental research organization.\61\ See INA section 214(g)(5),
8 U.S.C. 1184(g)(5). Under section 214(g)(6) of the INA, 8 U.S.C.
1184(g)(6), once cap-exempt employment ceases, the H-1B nonimmigrant
worker will be subject to the cap if he or she was not previously
counted against it and exemptions from the cap no longer apply. Section
214(g)(6) expressly refers to cap-exempt H-1B nonimmigrant workers who
cease to be employed by employers described under subparagraph (A) of
section 214(g)(5), 8 U.S.C. 1184(g)(5)(A), which lists only
institutions of higher education and related or affiliated nonprofit
entities. DHS, however, has long maintained the same policy with regard
to cessation of employment with employers described under subparagraph
(B) of section 214(g)(5), 8 U.S.C. 1184(g)(5)(B), which lists nonprofit
research organizations and governmental research organizations.\62\ DHS
now proposes to incorporate this interpretation into its H-1B
regulations. See proposed 8 CFR 214.2(h)(8)(ii)(F)(5). DHS believes
this reading is a reasonable interpretation and best implements the
congressional intent behind the H-1B cap exemption provisions, which
expressly exempt workers employed at those entities described in
sections 214(g)(5)(A) and (B). It reasonably follows that termination
of such employment should result in the cessation of the cap-exemption.
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\61\ Such cap-exempt H-1B nonimmigrant workers may also
undertake concurrent, non-exempt H-1B employment without being
subjected to the cap. See INA section 214(g)(5), 8 U.S.C.
1184(g)(5).
\62\ Neufeld Memo May 2008, at 7-8.
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Consistent with this interpretation, the proposed rule would
require a reassessment of an H-1B nonimmigrant worker's cap-exempt
status when he or she ceases employment at an institution of higher
education, a nonprofit entity related to or affiliated with such an
institution, a nonprofit research organization, or a governmental
research organization. See proposed 8 CFR 214.2(h)(8)(ii)(F)(5) and
(6). If such an H-1B nonimmigrant worker was not previously counted
against the H-1B numerical cap within the 6-year period of authorized
admission to which the cap-exempt employment applied, he or she would
now be subject to the cap if no other exemptions from the cap apply.
Id. Accordingly, USCIS will deny any subsequent cap-subject H-1B
petition \63\ filed for the H-1B nonimmigrant worker if no cap numbers
are available, and
[[Page 81920]]
may revoke the approval of a petition for concurrent employment of the
H-1B nonimmigrant worker at a cap-subject employer. Id.
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\63\ The subsequent petition may be, for example, a cap-subject
petition by a new employer or a petition by the same cap-subject
employer for an extension of the beneficiary's stay.
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DHS welcomes public comment on this proposal.
6. Whistleblower Protections in the H-1B Program
DHS proposes to conform its regulations governing the H-1B program
to certain policies and practices that have developed since ACWIA
amended the INA to provide additional protections to H-1B nonimmigrant
workers and other workers. See proposed 8 CFR 214.2(h)(20). As noted
previously, section 413 of ACWIA amended the INA by adding new section
212(n)(2)(C), which is codified at 8 U.S.C. 1182(n)(2)(C). Among other
things, section 212(n)(2)(C) makes it a violation for an H-1B employer
to retaliate against an employee for providing information to the
employer or any other person, or for cooperating in an investigation,
with respect to an employer's violation of its LCA attestations. See
INA section 212(n)(2)(C)(iv), 8 U.S.C. 1182(n)(2)(C)(iv). Employers are
prohibited from taking retaliatory action against such an employee,
including any action to intimidate, threaten, restrain, coerce,
blacklist, discharge, or in any other manner discriminate against an
employee for disclosing information to the employer, or to any other
person, that the employee reasonably believes evidences an LCA
violation, any rule or regulation pertaining to the statutory LCA
attestation requirements, or for cooperating, or attempting to
cooperate, in an investigation or proceeding pertaining to the
employer's LCA compliance. Id.
Section 212(n)(2)(C) also requires DHS to establish a process under
which an H-1B nonimmigrant worker who files a complaint with DOL
regarding such illegal retaliation, and is otherwise eligible to remain
and work in the United States, ``may be allowed to seek other
appropriate employment in the United States for a period not to exceed
the maximum period of stay authorized for such nonimmigrant
classification.'' INA section 212(n)(2)(C)(v), 8 U.S.C.
1182(n)(2)(C)(v). Under current policy, if credible documentary
evidence is provided in support of an H-1B petition demonstrating that
the H-1B nonimmigrant worker faced retaliatory action from his or her
employer based on a report regarding a violation of the employer's LCA
obligations, DHS may consider any related loss of H-1B status by the
worker as an ``extraordinary circumstance'' under 8 CFR 214.1(c)(4) and
248.1(b) justifying an extension of H-1B status or change of status for
the worker.\64\ Accordingly, the H-1B nonimmigrant worker is afforded
time to acquire new H-1B employment or employment under another
nonimmigrant classification notwithstanding a termination of employment
or other retaliatory action by his or her employer. Credible
documentary evidence may include a copy of the complaint filed by the
individual, along with corroborative documentation that such a
complaint has resulted in retaliatory action against the individual as
described in 20 CFR 655.801.\65\
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\64\ See Neufeld Memo May 2008, at 8.
\65\ Id.
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The proposed rule would codify in regulation DHS' current policy
regarding these protections. See proposed 8 CFR 214.2(h)(20). Under the
proposed rule, a qualifying employer seeking an extension of stay for
an H-1B nonimmigrant worker, or a change of status from H-1B status to
another nonimmigrant classification, would be able to submit
documentary evidence indicating that the beneficiary faced retaliatory
action from his or her employer (or former employer) based on a report
regarding a violation of the employer's LCA obligations. Id. If DHS
determines such documentary evidence to be credible, DHS may consider
any loss or failure to maintain H-1B status by the beneficiary related
to such violation as an ``extraordinary circumstance'' under 8 CFR
214.1(c)(4) and 248.1(b). Those regulations, in turn, authorize DHS to
grant a discretionary extension of H-1B stay or a change of status to
another nonimmigrant classification. See 8 CFR 214.1(c)(4) and
248.1(b). As with current policy, credible documentary evidence should
include a copy of the complaint filed by the individual, along with
corroborative documentation that such a complaint has resulted in the
retaliatory action against the individual as described in 20 CFR
655.801. All evidence submitted will be considered to determine whether
``extraordinary circumstances'' have been met.
DHS invites the public to comment on all aspects of this proposal.
B. Additional Changes To Further Improve Stability and Job Flexibility
for Certain Workers
DHS further proposes to amend its regulations, consistent with AC21
and DHS authorities, related to certain employment-based immigrant and
nonimmigrant visa programs to provide additional stability and
flexibility to employers and workers in those programs. The proposals
are primarily intended to improve job portability for certain
beneficiaries of approved employment-based immigrant visa petitions,
including by limiting the grounds for automatic revocation of petition
approval and increasing the ability of such workers to retain their
priority dates for use with subsequently approved employment-based
immigrant visa petitions.
The proposed rule would also: Improve or establish grace periods
for certain nonimmigrant workers so that they may more easily seek and
accept new employment opportunities; further assist applicants for
adjustment of status and certain other employment-eligible individuals
by automatically extending EADs for an interim period upon the timely
filing of a renewal application; and provide additional stability and
flexibility to high-skilled workers in certain nonimmigrant statuses to
apply for employment authorization for a limited period if they meet
certain criteria, including demonstrating that they are beneficiaries
of approved employment-based immigrant visa petitions, are subject to
immigrant visa backlogs, and demonstrate compelling circumstances.
These and other proposed changes would provide much needed flexibility
to a limited group of beneficiaries of employment-based immigrant visa
petitions, as well as the U.S. employers who employ and sponsor them
for permanent residence.
1. Revocation of Approved Employment-Based Immigrant Visa Petitions
As referenced above, DHS is proposing to amend its regulations
governing revocation of petition approval to provide greater stability
and flexibility to certain workers who have approved EB-1, EB-2, or EB-
3 immigrant visa petitions and are on the path to obtaining LPR status
in the United States. The INA provides that any immigrant visa
petition, once approved, may have such approval revoked by the
Secretary of Homeland Security ``for what he deems to be good and
sufficient cause.'' INA section 205, 8 U.S.C. 1155. Pursuant to this
statutory authority, current DHS regulations provide grounds for
automatic revocation and revocation on notice to the petitioner. See 8
CFR 205.1 and 205.2.\66\ With respect to employment-
[[Page 81921]]
based immigrant visa petitions, the current regulatory grounds for
automatic revocation include: (1) Invalidation of the labor
certification supporting the petition; (2) death of the petitioner or
beneficiary; (3) withdrawal by the petitioning employer; and (4)
termination of the petitioning employer's business. See 8 CFR 205.1.
The regulatory provisions governing revocation on notice to the
petitioner allow for revocation to be pursued on any other ground
``when the necessity for the revocation comes to the attention of
[DHS].'' 8 CFR 205.2(a). Such revocation may be used, for example, for
petitions involving fraud, material misrepresentation, or erroneous
approval.\67\
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\66\ The Department of Justice (DOJ) Executive Office for
Immigration Review (EOIR) has corresponding revocation regulations.
See 8 CFR part 1205. DHS and DOJ, however, are not proposing to
amend those regulations. The EOIR regulations do not permit EOIR to
revoke under section 205 of the INA, 8 U.S.C. 1155, employment-based
immigrant visa petitions approved under section 204 of the INA, 8
U.S.C. 1154. Subsequent to enactment of the Homeland Security Act,
DOJ promulgated regulations transferring or duplicating certain
parts of regulations codified in 8 CFR chapter I, including the
automatic revocation regulations, to a new chapter pertaining to
EOIR at 8 CFR chapter V. See Aliens and Nationality; Homeland
Security; Reorganization of Regulations, 68 FR 9824 (Feb. 28, 2003).
Thereafter, on December 17, 2004, Congress vested authority for
revocations under section 205 of the INA solely in the Secretary of
Homeland Security, rather than the Attorney General. See
Intelligence Reform and Terrorism Prevention Act of 2004, Public Law
108-458, sec. 5304(c), 118 Stat. 3638 (striking ``Attorney General''
and inserting ``Secretary of Homeland Security''). Moreover, EOIR's
Board of Immigration Appeals has held that immigration judges are
not authorized to revoke employment-based immigrant visa petitions
approved under section 204 of the INA, and that the Board lacks
jurisdiction to review DHS decisions to revoke such petitions. See,
e.g., Matter of Marcal-Neto, 25 I&N Dec. 169, 174 (BIA 2010)
(immigration judges lack authority to decide whether visa petitions
should be revoked); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA
1987) (the Board lacks jurisdiction over matters involving the
automatic revocation of a visa petition) (citing Matter of Zaidan,
19 I&N Dec. 297 (BIA 1985)). Accordingly, EOIR regulations at 8 CFR
part 1205 need not be revised to conform with the proposed revisions
in this rule.
\67\ See Adjudicator's Field Manual, Chapter 22: Employment-
Based Petitions, Entrepreneurs, and Special Immigrants Sec.
22.2(d)(1) Employment-based Immigrant Visa Petitions (Form I-140);
Determining the Priority Date, available at http://www.uscis.gov/iframe/ilink/docView/AFM/HTML/AFM/0-0-0-1.html.
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The proposed rule would amend these regulations so that EB-1, EB-2,
and EB-3 immigrant visa petitions that have been approved for 180 days
or more would no longer have such approval automatically revoked based
only on withdrawal by the petitioner or termination of the petitioner's
business. See proposed 8 CFR 205.1(a)(3)(iii)(C) and (D). As long as
such an approval has not been revoked for fraud, material
misrepresentation, the invalidation or revocation of a labor
certification, or USCIS error, the petition will generally continue to
be valid for various purposes under the immigration laws. Id. Such
purposes include: (1) The retention of priority dates; (2) job
portability under section 204(j) of the INA, 8 U.S.C. 1154(j); and (3)
extensions of status for certain H-1B nonimmigrant workers under
sections 104(c) and 106(a) and (b) of AC21. Id. An employment-based
immigrant visa petition that is subject to withdrawal or business
termination, however, cannot on its own serve as the basis for
obtaining an immigrant visa or applying for adjustment of status as
there is no longer a bona fide employment offer related to the
petition. See id. In such cases, the beneficiary will need a new
immigrant visa petition filed on his or her behalf, or a new offer of
employment in section 204(j) portability cases, in order to obtain an
immigrant visa or adjust status. Id.
DHS believes these regulatory changes are critical to fully
implementing the job portability provisions of AC21. The current
regulations concerning revocation of employment-based petition approval
were last amended in 1996,\68\ when wait times for employment-based
immigrant visas were relatively short and the immigration laws seemed
to contemplate that sponsored employees would remain with their
petitioning employers during the short time it took to obtain LPR
status. The passage of time, and AC21, changed this landscape. In the
intervening period, wait times for immigrant visas increased
substantially, particularly for workers from India and China. See
section III.D. And in recognition of these and other delays, Congress
enacted AC21 in 2000 to provide additional flexibility to workers who
were subject to lengthy delays in the immigrant visa process. Since
AC21, wait times for immigrant visas have grown dramatically, so that
for many workers the period between the approval of an employment-based
immigrant visa petition \69\ and the worker's ability to obtain
permanent residence is now counted in years, if not decades. Id. This
has placed increased emphasis on and further necessitates the benefits
Congress sought to provide through AC21.
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\68\ See 61 FR 13061 (1996). In 2006, the Department of Homeland
Security and the Department of Justice amended the revocation
regulations pertaining to immediate relatives and family-sponsored
beneficiaries. See 71 FR 35749.
\69\ The period of time necessary for USCIS to approve an
employment-based immigrant visa petition requiring a labor
certification from DOL does not account for the time that is
required for DOL adjudication of the labor certification
application. A worker's priority date in such cases, which is
established as of the date DOL accepts the labor certification
application for processing, see 8 CFR 204.5(e), typically will be
more than one year before the date of petition approval under
current processing times.
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Importantly, Congress enacted AC21 with the specific purpose of
providing increased job flexibility to certain workers who are being
sponsored for permanent residence by a particular employer, but who as
a result of long delays are forced to wait inordinate periods of time
for such permanent residence. Section 106(c) of AC21, for example,
created section 204(j) of the INA to allow certain workers with
approved immigrant visa petitions and pending applications for
adjustment of status to change jobs or employers without invalidating
their approved immigrant visa petitions. See Section III.A. This
statutory change supports the regulatory change proposed in this
section. In cases involving section 204(j) portability, allowing a
withdrawal by the petitioning employer, or termination of its business,
to automatically cause revocation of the immigrant visa petition's
approval would substantially undermine the protections Congress
intended to provide the beneficiaries of such petitions through section
204(j).
The same is true with respect to the various provisions of AC21
that were intended to provide certainty and flexibility to H-1B
nonimmigrant workers. AC21 provided various ways in which such workers
could extend their H-1B status beyond the general 6-year limitation if
they had been sponsored for permanent residence by an employer. See
Section III.C. (discussing AC21 sections 104(c) and 106(a) and (b)). At
the same time, AC21 enhanced the ability of H-1B nonimmigrant workers
to change jobs or employers, including by authorizing such workers to
immediately commence new employment upon the filing of a non-frivolous
H-1B petition. Id. (discussing AC21 section 105(a)). These extension
and portability provisions are far less meaningful if, after the H-1B
nonimmigrant worker changes jobs, the approval of his or her qualifying
immigrant visa petition can be automatically revoked solely due to
withdrawal by the petitioning employer or termination of its business.
Accordingly, this proposed rule would amend DHS regulations
governing revocation with respect to employment-based immigrant visa
petitions to better reflect and enhance the job portability eligibility
authorized by AC21. As noted above, DHS proposes that an employment-
based immigrant visa petition that has been approved for 180 days or
more would no longer have such approval automatically revoked based
only on withdrawal by the
[[Page 81922]]
petitioner or termination of the petitioner's business. See proposed 8
CFR 205.1(a)(3)(iii)(C) and (D). This change would effectively improve
the ability of certain workers with approved EB-1, EB-2, or EB-3
immigrant visa petitions to rely on such petitions for various job
portability and status extension provisions in the immigration laws.
Among other things, qualifying workers would be able to take advantage
of these provisions without fear that certain circumstances outside of
their control will automatically cause the revocation of the approval
of their immigrant visa petitions, eliminate access to status extension
and portability provisions intended to assist them, and potentially
force them to leave their homes in the United States at a moment's
notice.
While enhancing these protections, the regulatory changes in this
proposed rule would remain consistent with current policy concerning
these workers' ability to obtain adjustment of status or an immigrant
visa. The proposed rule, for example, would continue to require a valid
and qualifying offer of employment (unless the requirement for such an
offer is exempted by law) at the time a worker seeks to apply for or
receive adjustment of status. As discussed in Section IV.B.1. of this
proposed rule, beneficiaries of employment-based immigrant visa
petitions who seek to adjust status based on continuing offers of
employment from petitioning employers would be unaffected by this rule.
If the petitioning employer of such a beneficiary withdraws or goes out
of business, the beneficiary must have a new offer of employment and a
new immigrant visa petition filed on his or her behalf in order to file
for or obtain adjustment of status, consistent with current policy. See
proposed 8 CFR 245.25(a)(2) and 205.1(a)(3)(iii)(C).
The analysis is similar for beneficiaries of immigrant visa
petitions who seek to adjust status based in part on the portability
protection of section 204(j) of the INA. Where the petitioner withdraws
or goes out of business 180 days or more after the adjustment of status
application is filed, the beneficiary would continue to be required to
demonstrate that he or she has a new and valid offer of employment in a
same or similar occupational classification, consistent with section
204(j). See proposed 8 CFR 245.25(b)(2) and 205.1(a)(3)(iii)(D). Thus,
in all instances of petition withdrawal or business termination where
an offer of employment is necessary, the beneficiary either will need a
new immigrant visa petition filed on his or her behalf, or a new offer
of employment consistent with section 204(j), in order to file for or
obtain adjustment of status. Id.
Accordingly, DHS believes that the proposed changes provide
important stability and flexibility to workers who have been sponsored
for permanent residence while also protecting against fraud and misuse.
First, as just discussed, beneficiaries of approved employment-based
immigrant visa petitions will continue to be unable to rely on such
petitions for the purposes of adjusting status or obtaining an
immigrant visa in cases where the petitioning employer has withdrawn or
gone out of business, unless eligible for section 204(j) portability.
Second, DHS is proposing to restrict revocation based on petitioner
withdrawal or business termination only for petitions that have been
approved for 180 days or more. See proposed 8 CFR 205.1(a)(3)(iii)(C)
and (D). In addition to the period that it typically takes for a
petitioning employer to obtain a labor certification from DOL and
approval of an immigrant visa petition from DHS, the 180-day
requirement would provide additional assurance that the petition was
bona fide when filed. Finally, the proposed amendments do not in any
way restrict DHS' current ability to revoke the approval of any
immigrant visa petition for fraud, material misrepresentation, the
invalidation or revocation of a labor certification, error, or any
other circumstance that DHS believes is good cause for revocation. See
8 CFR 205.1(a)(3)(iii)(A) and 205.2; see also 8 CFR 205.1(a)(3)(iii)(C)
and (D).
DHS welcomes public comment on all aspects of this proposed change.
2. Retention of Priority Dates
DHS also proposes to amend its regulations to enhance the ability
of beneficiaries with approved EB-1, EB-2 or EB-3 immigrant visa
petitions to retain the priority dates associated with those petitions
and rely on them when seeking to obtain an immigrant visa or adjust
status.
First, the proposed rule would update DHS regulations to provide
clarity to all beneficiaries of employment-based immigrant visa
petitions regarding the establishment of priority dates and to
eliminate obsolete references in this area. See proposed 8 CFR
204.5(d). DHS regulations currently provide how priority dates are
determined for employment-based immigrant visa petitions that: (1) Are
accompanied by labor certifications; (2) are accompanied by
applications for Schedule A designation; or (3) are filed on behalf of
special immigrants described in section 203(b)(4) of the INA. See 8 CFR
204.5(d). The regulations, however, do not specify how priority dates
are established for other employment-based immigrant visa petitions
that do not require labor certifications--such as petitions filed under
the EB-1 or EB-5 preference categories. DHS thus proposes to revise its
regulations to clarify that the priority date of any properly filed
employment-based immigrant visa petition that does not require a labor
certification (including EB-1 petitions, EB-2 petitions involving
national interest waivers, EB-5 petitions, and petitions filed on or
after October 1, 1991 on behalf of special immigrants) will be the date
the completed, signed petition is properly filed with DHS. See proposed
8 CFR 204.5(d). The proposed rule would also delete a reference to
``evidence that the alien's occupation is a shortage occupation within
the Department of Labor's Labor Market Information Pilot Program,'' as
that reference is now obsolete. Id.
Second, the proposed rule would clarify and expand the ability of
beneficiaries of approved EB-1, EB-2, and EB-3 immigrant visa petitions
to retain their priority dates for use with subsequently filed EB-1,
EB-2, and EB-3 petitions. See proposed 8 CFR 204.5(e). Current
regulations generally allow such retention, but not where DHS denies
the petition or revokes its approval under section 204(e) or 205 of the
INA, 8 U.S.C. 1154(e) or 1155. See 8 CFR 204.5(e). DHS proposes to
revise these regulations so that the priority dates of EB-1, EB-2, and
EB-3 petitions may be used for subsequently filed EB-1, EB-2 and EB-3
petitions, unless USCIS denies the petition (or otherwise fails to
approve it) or revokes the petition's approval due to: (1) Fraud or a
willful misrepresentation of a material fact; (2) a determination that
the petition was approved in error; or (3) revocation or invalidation
of the labor certification associated with the petition. See proposed 8
CFR 204.5(e). The priority date of a petition that has its approval
revoked on these grounds would not be retained, regardless of whether
the petition's approval was previously revoked on other grounds.
This change, in combination with the proposed changes to the
automatic revocation provisions discussed above, would effectively
expand beneficiaries' ability to retain the priority dates of their
approved EB-1, EB-2, and EB-3 petitions, particularly those that are
later withdrawn or that involve petitioning employers that go out of
business. Notably, the ability to retain priority dates under this
amendment
[[Page 81923]]
would begin immediately upon petition approval even if the petition's
approval is thereafter revoked based on petition withdrawal or business
termination less than 180 days after approval. This change would
provide greater certainty and stability for beneficiaries in their
pursuit of permanent residence in the United States. The change would
also continue to allow DHS to restrict retention of priority dates in
cases that merit such restriction, including in cases where the
petition does not satisfy the pertinent legal requirements, cases where
the underlying labor certification has been invalidated or revoked,
cases involving fraud or willful misrepresentation, and cases involving
DHS error.
DHS welcomes public comment on all aspects of this proposed change.
3. Nonimmigrant Grace Periods
To further improve stability and flexibility for high-skilled
nonimmigrant workers, DHS proposes to authorize and improve grace
periods in certain nonimmigrant visa classifications. As further
described below, DHS is effectively proposing to extend the current
grace periods for H-1B nonimmigrant workers--which authorize admission
up to 10 days before and after the relevant validity period--to certain
other high-skilled nonimmigrant classifications (E-1, E-2, E-3, L-1,
and TN classifications). DHS further proposes to make a grace period
available in these classifications, as well as the H-1B and H-1B1
nonimmigrant classifications, for up to 60 days during the period of
petition validity (or other authorized validity period).
a. Extending 10-Day Grace Periods to Certain Nonimmigrant
Classifications
First, DHS proposes to provide grace periods similar to those
currently available to H-1B nonimmigrant workers to other high-skilled
nonimmigrant workers. See proposed 8 CFR 214.1(l)(i). DHS regulations
currently allow H-1B nonimmigrant workers to receive grace periods of
up to 10 days before the validity periods of their H-1B petitions begin
and 10 days after such validity periods end. See 8 CFR
214.2(h)(13)(i)(A). During any such grace period, an H-1B nonimmigrant
worker is considered ``admitted to the United States'' but not
authorized to work. See 8 CFR 214.2(h)(13)(i)(A). The initial 10-day
grace period allows H-1B nonimmigrant workers to make necessary
preparations for their employment in the United States. The 10-day
grace period at the end of the validity period provides a short window
in which H-1B nonimmigrant workers may either (1) find new qualifying
H-1B employment and extend their H-1B status or (2) get their affairs
in order before departing the United States. See id.
The proposed rule would extend similar 10-day grace periods to
individuals in certain other employment-authorized nonimmigrant visa
classifications, namely the E-1, E-2, E-3, L-1, and TN classifications.
Providing grace periods in such classifications--which, like the H-1B
classification, are generally available to high-skilled individuals and
authorize stays of multiple years--reflects goals similar to those
underlying AC21 and serves the national interest by promoting stability
and flexibility for such workers. A 10-day grace period before the
petition or authorized validity period begins allows these
nonimmigrants a reasonable amount of time to enter the United States
and prepare for their employment in the country. A 10-day grace period
after their petition or authorized validity period ends provides a
reasonable amount of time to depart the United States or take other
actions to extend, change, or otherwise maintain lawful status after
their period of authorized employment ends.
Consistent with the current grace periods in the H-1B
classification, the proposed rule would not allow eligible
nonimmigrants to be employed during either of the 10-day grace periods.
See proposed 8 CFR 214.1(l). Such periods are provided merely for
eligible nonimmigrants to prepare for employment, seek new employment
in order to extend or change status, or prepare for departure from the
United States. Further, the proposed rule would extend grace periods to
dependents of eligible principal nonimmigrant workers. Id. If a
principal nonimmigrant worker is eligible to extend his or her stay
under a grace period provided by this proposed rule, his or her
dependent would also be eligible. Id. Finally, DHS also proposes to
amend the existing grace period provision in current regulation with
respect to the H-1B classification to align such provisions with the
proposed cross-classification provision described above. See proposed 8
CFR 214.2(h)(13)(i)(A).
DHS welcomes public comment on all aspects of this proposed change.
b. Providing a 60-Day Grace Period to Certain Nonimmigrant
Classifications
Second, the proposed rule would authorize a grace period in the E-
1, E-2, E-3, H-1B1, L-1, and TN classifications, as well as the H-1B
classification, during the period of petition validity (or other
authorized validity period). To enhance job portability for these high-
skilled nonimmigrants, DHS proposes to generally establish a one-time
grace period during an authorized nonimmigrant validity period of up to
60 days or until the existing validity period ends, whichever is
shorter, whenever employment ends for these individuals. See proposed 8
CFR 214.1(l)(ii). DHS currently provides flexibility in other
nonimmigrant classifications, such as those for F-1 nonimmigrant
students and J-1 nonimmigrant exchange visitors.\70\ DHS believes that
adding this one-time interim grace period of up to 60 days upon
cessation of employment for additional classifications of nonimmigrants
would allow nonimmigrants in the affected classifications sufficient
time to respond to sudden or unexpected changes related to their
employment. Such time may be used to seek new employment, seek a change
of status to a different nonimmigrant classification, or make
preparations for departure from the United States.
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\70\ DHS regulations currently provide 60- and 30-day grace
periods to F-1 nonimmigrant students and J-1 nonimmigrant exchange
visitors, respectively. See 8 CFR 214.2(f)(5)(iv) and (j)(1)(ii). F-
1 students who have completed their course of study and any
subsequently authorized practical training are granted an additional
60-day period to prepare for departure or transfer to another
school. See 8 CFR 214.2(f)(5)(iv). The 30-day grace period for J-1
nonimmigrant exchange visitors is available to them during the
validity period of their J-1 duration of status, which includes the
duration of their J-1 exchange program and a 30-day departure
preparation period. See 8 CFR 214.2(j)(1)(ii).
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Under current policy, for example, an H-1B nonimmigrant worker
whose employment ends--whether voluntarily or upon being laid off or
terminated by the H-1B employer--is generally considered to be in
violation of his or her status and must depart the United States
immediately. Under the proposed rule, however, H-1B nonimmigrant
workers would be afforded up to 60 days upon the end of employment to
seek new H-1B employment and thus extend their H-1B status without
having to immediately depart the country. Accordingly, this interim
grace period would further support the enhanced job portability
protections provided to H-1B nonimmigrant workers by AC21, which
authorizes them to change jobs or employers upon the filing of a non-
frivolous H-1B petition, if otherwise eligible. The proposed change
described in this section would provide H-1B and certain other
nonimmigrant workers a small degree of stability and flexibility
[[Page 81924]]
when faced with sudden changes to their employment.
As with the 10-day grace periods discussed in the preceding
section, eligible nonimmigrants would not be authorized for employment
during an interim grace period of up to 60 days proposed by this
rule.\71\ See proposed 8 CFR 214.1(l). Also consistent with the 10-day
grace periods, the proposed rule would extend the interim grace periods
to dependents of eligible principal nonimmigrant workers. Id. During
any interim period in which a principal nonimmigrant worker is eligible
to extend his or her stay under this proposed change, his or her
dependent would also be eligible.
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\71\ If a qualifying H-1B petition is properly filed on the H-1B
nonimmigrant worker's behalf during this 60-day grace period, DHS
would consider the individual to no longer be in the 60-day grace
period as they would be employment authorized under section 214(n)
of the INA, 8 U.S.C. 1184(n).
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DHS welcomes public comment on all aspects of this proposal,
including on the appropriate length of the grace period and on the
nonimmigrant classifications that should be afforded eligibility for
such grace periods.
4. Eligibility for Employment Authorization in Compelling Circumstances
DHS proposes to further enhance stability and flexibility for high-
skilled nonimmigrant workers who are the beneficiaries of approved
immigrant visa petitions filed by sponsoring U.S. employers and who
face compelling circumstances while they wait for their immigrant visas
to become available. As discussed in Section III.E., the continually
expanding backlogs for employment-based immigrant visas can place
sponsored workers and their sponsoring employers in untenable
positions.
Currently, sponsoring employers and sponsored workers cannot
deviate from the specific job offer described in a labor certification
and approved employment-based immigrant visa petition until the worker:
(1) Has an immigrant visa immediately available to him or her; (2) has
filed an application for adjustment of status; and (3) has such
application pending for at least 180 days.\72\ See INA section 204(j),
8 U.S.C. 1154(j). Before all three of these conditions are met, an
employer generally cannot promote the sponsored worker, move the worker
to another position, or transfer the worker to the same or a similar
position in a different geographic area without jeopardizing the
immigrant visa petition approved on the worker's behalf, regardless of
the circumstances. Neither can a sponsored worker accept employment
with an employer other than the sponsoring employer without creating
the same risk. Whether the worker and his or her family are facing a
medical or other emergency is currently immaterial. Neither is it
relevant that the worker may have faced retaliation from the employer
for engaging in protected conduct, or that the lack of flexibility may
result in significant business or economic harm to the employer or
worker.
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\72\ Over 75 percent of principal beneficiaries of employment-
based immigrant visa petitions, sponsored for LPR status by
employers based on their skills and contributions to the U.S.
economy, are seeking classification as EB-2 and EB-3 immigrants and
thus, with limited exception, are subject to a labor market test
requiring a labor certification from the Department of Labor. See
DHS Yearbook of Immigration Statistics, Table 7 http://www.dhs.gov/yearbook-immigration-statistics-2013-lawful-permanent-residents.
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To provide flexibility in the face of such compelling
circumstances, DHS proposes to extend employment authorization to a
discrete subset of high-skilled workers who are the beneficiaries of
approved employment-based immigrant visa petitions and are in the
United States in certain nonimmigrant statuses. Specifically, the
proposed rule would provide the ability for individuals to apply for
employment authorization for 1 year when they meet all of the following
criteria: (1) The individual is currently in the United States and
maintaining E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status; (2) the
individual is the beneficiary of an approved immigrant visa petition
under the EB-1, EB-2 or EB-3 classification; (3) the individual does
not have an immigrant visa immediately available; and (4) the
individual can demonstrate to the satisfaction of DHS compelling
circumstances that justify an independent grant of employment
authorization. See proposed 8 CFR 204.5(p)(1). DHS is proposing this
change to provide qualified nonimmigrants who are beneficiaries of
approved employment-based immigrant visa petitions, but are awaiting an
immigrant visa, a stopgap measure for retaining employment
authorization for a limited period when compelling circumstances arise.
DHS anticipates that use of this proposal, if finalized, would be
limited for various reasons. First, DHS believes that the other changes
proposed in this rule to enhance flexibility for employers and
nonimmigrant workers, if finalized, would significantly decrease
instances where this proposal will be needed. Second, nonimmigrant
workers will have significant incentive to choose other options, as the
proposal discussed in this section would require the worker to
relinquish his or her nonimmigrant status, thus restricting his or her
ability to change nonimmigrant status or adjust status to that of a
lawful permanent resident. Accepting the employment authorization under
this proposal, for example, would generally require the worker to
forego adjusting status in the United States and instead seek an
immigrant visa abroad through consular processing. Finally, DHS
anticipates that a limited number of nonimmigrant workers with approved
EB-1, EB-2, or EB-3 immigrant visa petitions will be able to
demonstrate compelling circumstances justifying an independent grant of
employment authorization. Employment authorization based on compelling
circumstances will not be available to a nonimmigrant worker solely
because his or her statutory maximum time period for nonimmigrant
status is approaching or has been reached. Likewise, employment
authorization generally would not be available to a nonimmigrant if the
tendered compelling circumstance is within his or her control.
DHS is not proposing to define the term ``compelling
circumstances'' at this time, as the Department seeks to retain
flexibility as to the types of compelling circumstances that clearly
warrant the Secretary's exercise of discretion in granting employment
authorization. DHS, however, has currently identified four
circumstances in which it may consider granting employment
authorization under the proposed change:
Serious Illnesses and Disabilities. The nonimmigrant
worker can demonstrate that he or she, or his or her dependent, is
facing a serious illness or disability that entails the worker moving
to a different geographic area for treatment or otherwise substantially
changing his or her employment circumstances.
Employer Retaliation. The nonimmigrant worker can
demonstrate that he or she is involved in a dispute regarding the
employer's illegal or dishonest activity as evidenced by, for example,
a complaint filed with a relevant government agency or court, and the
employer has taken retaliatory action that justifies granting separate
employment authorization to the worker on a discretionary basis.
Other Substantial Harm to the Applicant. The nonimmigrant
worker can demonstrate that due to compelling circumstances, he or she
will be unable to timely extend or otherwise maintain status, or obtain
another nonimmigrant status, and absent continued employment
authorization under this proposal the applicant and his or her family
would suffer substantial harm.
[[Page 81925]]
Such circumstances, for example, may involve an H-1B nonimmigrant
worker who has been applying an industry-specific skillset in a high-
technology sector for years with a U.S. entity that is unexpectedly
terminating its business, where the worker is able to establish: (1)
That the same or a similar industry (e.g., nuclear energy, aeronautics,
or artificial intelligence) does not materially exist in the home
country, and (2) that the resulting inability to find productive
employment would cause significant hardship to the worker and his or
her family if required to return home. In such circumstances, the
employment authorization proposal would provide the individual with an
opportunity to find another employer to sponsor him or her for
immigrant or nonimmigrant status and thereby protect the worker and his
or her family members from the substantial harm they would suffer if
required to depart the United States.
Significant Disruption to the Employer. The nonimmigrant
worker can show that due to compelling circumstances, he or she is
unexpectedly unable to timely extend or change status, there are no
other possible avenues for the immediate employment of such worker with
that employer, and the worker's departure would cause the petitioning
employer substantial disruption to a project for which the worker is a
critical employee. Such circumstances, for example, may include the
following:
[cir] An L-1B nonimmigrant worker is sponsored for permanent
residence by an employer that subsequently undergoes corporate
restructuring (e.g., a sale, split, or spin off) such that the worker's
new employer is no longer a multinational company eligible to employ L-
1B workers, there are no available avenues to promptly obtain another
work-authorized nonimmigrant status for the worker, and the employer
would suffer substantial disruption due to the critical nature of the
worker's services. In such cases, the employment authorization proposal
would provide the employer and worker a temporary bridge allowing for
continued employment while they continue in their efforts to obtain a
new nonimmigrant or immigrant status.
[cir] An H-1B nonimmigrant worker is providing critical work on
biomedical research for an entity affiliated with an institution of
higher education, thus making the entity exempt from the H-1B cap, when
the funding for the research unexpectedly changes and now comes through
a for-profit entity, thus causing the entity to lose its cap-exempt
status. In cases where the worker is unable to quickly obtain H-1B
status based on a cap-subject H-1B petition or another work-authorized
nonimmigrant status, the employment authorization proposal would
provide a temporary bridge for continued employment of the worker when
his or her departure would create substantial disruption to the
employer's biomedical research.
In each of these examples of situations where USCIS may find
compelling circumstances, the proposed provision would provide
individuals with the ability to retain employment authorization and the
opportunity to find a new sponsoring employer or explore options with
the current sponsoring employer. DHS invites public comment on these
examples of compelling circumstances or other types of compelling
circumstances that may warrant a discretionary grant of separate
employment authorization. DHS also welcomes public comment on the
manner in which applicants should be expected to document such
compelling circumstances.
As noted above, DHS is proposing this employment authorization only
for certain workers who are the beneficiaries of approved employment-
based immigrant visa petitions and who are in the United States in E-3,
H-1B, H-1B1, O-1, or L-1 nonimmigrant status. See proposed 8 CFR
204.5(p)(1)(i). The requirement that the individual must be the
beneficiary of an approved employment-based immigrant visa petition is
intended to limit employment authorization to those workers who are
seeking employment-based permanent residence in the United States and
are merely awaiting an immigrant visa and either: (1) Are the subject
of an approved labor certification indicating that their employment
would not harm U.S. workers or (2) are in a classification that
Congress has chosen to prioritize by exempting them from the labor
certification requirement. DHS is further limiting eligibility to the
listed nonimmigrant classifications as they represent the vast majority
of high-skilled nonimmigrant workers who are sponsored for permanent
residence by U.S. employers.\73\ DHS invites public comment on the
listed nonimmigrant classifications and whether other nonimmigrant
classifications should be considered. DHS also invites public comment
on the requirement that applicants be the beneficiaries of approved EB-
1, EB-2, or EB-3 immigrant visa petitions.
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\73\ Based on USCIS analysis of approved employment-based
immigrant visa petitions with the ``beneficiary's current
nonimmigrant status'' field completed, approximately 97 percent held
H-1B or H-1B1 status, and approximately 2.9 percent held L-1
nonimmigrant status. Approximately 10.5 percent of approved
petitions had missing information for that field.
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DHS is further proposing that workers who have been granted 1 year
of employment authorization under the proposed rule would not be able
to extend such employment authorization at the end of the 1-year period
unless certain criteria are met. DHS is proposing to limit renewal of
such employment authorization to those workers who can show that they
continue to be the principal beneficiary of an approved EB-1, EB-2 or
EB-3 immigrant visa petition and either: (1) The worker continues to
face compelling circumstances; or (2) the worker has a priority date
that is less than 1 year from the current cut-off date for the relevant
employment-based category and country of nationality in the most recent
visa bulletin published by the Department of State. See proposed 8 CFR
204.5(p)(3)(i).
DHS further proposes that individuals would be ineligible to obtain
employment authorization under this rule, whether initial or renewal,
if at the time of the filing of the EAD application the alien's
priority date is more than 1 year beyond the date on which immigrant
visa numbers were authorized to be issued to individuals with the same
priority date for the relevant employment-based category and country of
nationality. DHS believes this outer limit would discourage individuals
from relying on the proposed employment authorization in lieu of
completing the employment-based immigrant visa process. See proposed 8
CFR 204.5(p)(5).
DHS also proposes to generally require these applicants to appear
in person at a USCIS Application Support Center (ASC) to submit
biometric information and pay a biometric fee as prescribed in 8 CFR
103.7(b)(1)(i)(C). See proposed 8 CFR 204.5(p)(4). This requirement
would allow DHS to better assess the applicant's potential risk to
public safety and national security, and to enable DHS to make a more
informed decision when exercising discretion to approve or deny such
application for employment authorization. See 8 CFR 274a.13(a)(1). DHS
also is proposing that, in all cases, an individual would be ineligible
for employment authorization under this provision if convicted of any
felony or two or more misdemeanors. See proposed 8 CFR 204.5(p)(5)(i).
DHS welcomes public comment on these additional requirements.
With regard to dependents of qualifying principal nonimmigrants,
[[Page 81926]]
DHS proposes to extend employment authorization eligibility to those
dependent spouses and children who are also present in the United
States in nonimmigrant status, but only if the principal spouse or
parent is granted employment authorization under this rule and such
authorization has not been terminated or revoked. See proposed 8 CFR
204.5(p)(2). The validity period of the family member's employment
authorization may not extend beyond the period authorized for the
principal spouse or parent. Id. Dependent family members seeking
renewals of employment authorization would be subject to these same
limitations. See proposed 8 CFR 204.5(p)(3)(ii).
DHS further proposes conforming amendments to 8 CFR 274a.12(c),
which lists classes of individuals who must apply for employment
authorization. These amendments would add two new categories of
individuals eligible for employment authorization, one for the
principal beneficiaries described above and one for their dependent
spouses and children. See proposed 8 CFR 274a.12(c)(35) and (36). Under
these regulations, qualifying individuals would not be permitted to
engage in employment until USCIS approves, as a matter of discretion,
the employment authorization application and issues an EAD (Form I-766,
or successor form). See 8 CFR 274a.12(c) and 8 CFR 274a.13(a)(1).
DHS welcomes public comment on all aspects of this proposal,
including the appropriate validity period for grants of employment
authorization and the nonimmigrant visa classifications that should be
eligible to request such employment authorization.
5. H-1B Licensing Requirements
DHS proposes to amend its regulations consistent with current
policy for determining when H-1B status may be granted notwithstanding
the H-1B beneficiary's inability to obtain a required license. See
proposed 8 CFR 214.2(h)(4)(v)(C)(2). Generally, if the beneficiary of
an H-1B petition requires a state or local license to fully perform the
duties of the occupation described in the petition, the petition may
not be approved unless the beneficiary possesses the license. See 8 CFR
214.2(h)(4)(v)(A). However, this sometimes results in a ``Catch-22''
situation, as the state or local licensing authority may not issue
licenses to individuals who do not have social security numbers or
cannot otherwise prove employment authorization (such as with an
approved H-1B petition). Under current policy, DHS may approve an H-1B
petition in such cases for a 1-year period, provided that the only
obstacle to obtaining licensure is the lack of a social security number
or employment authorization.\74\
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\74\ USCIS Memorandum from Donald Neufeld, ``Adjudicator's Field
Manual Update: Chapter 31: Accepting and Adjudicating H-1B Petitions
When a Required License is not Available due to State Licensing
Requirements Mandating Possession of a Valid Immigration Document as
Evidence of Employment Authorization.'' (March 21, 2008) (``Neufeld
Memo March 2008''), INS Memorandum from Thomas Cook, ``Social
Security Cards and the Adjudication of H-1B Petitions'' (Nov. 20,
2001) (``Cook Memo Nov. 2001'').
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DHS is now proposing to formalize this policy in its H-1B
regulations. Under the proposed rule, DHS may approve an H-1B petition
for a 1-year validity period if a state or local license to engage in
the relevant occupation is required and the appropriate licensing
authority will not grant such license absent evidence that the
beneficiary has been issued a social security number or granted
employment authorization. See proposed 8 CFR 214.2(h)(4)(v)(C)(2)(i).
Petitioners filing H-1B petitions on behalf of such beneficiaries would
be required to submit evidence from the relevant licensing board
indicating that the only obstacle to the beneficiary's licensure is the
lack of a social security number or employment authorization. Id. In
addition, the petitioner must establish that the beneficiary satisfies
all other regulatory and statutory requirements for engaging in the
occupation. In other words, the petitioner would need to demonstrate
that at the time of the petition's filing, the beneficiary meets the
educational, training, experience, or other substantive requirements
for obtaining the relevant license (other than acquiring a social
security number or being employment authorized).
Moreover, the petitioner would generally be required to demonstrate
that at the time of the petition's filing, the beneficiary has already
filed an application for the relevant license in accordance with state
or local licensing procedures. See proposed 8 CFR
214.2(h)(4)(v)(C)(2)(ii). In the alternative, the petitioner would be
required to demonstrate that the beneficiary cannot file such an
application due to the lack of a social security number or employment
authorization.\75\ Id. The proposed rule would also make clear that a
beneficiary who has been approved for a 1-year validity period may not
obtain an extension of H-1B status without proof of licensure. Any
subsequent H-1B petition filed on behalf of such a beneficiary with
respect to the same occupation must contain proof that the beneficiary
has obtained the required license. See proposed 8 CFR
214.2(h)(4)(v)(C)(3).
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\75\ For example, as of 2014, the State of California requires
provision of a social security account number when applying for an
acupuncture license. According to its Web site, California will not
process an application on which the applicant does not provide a
social security account number. See www.acupuncture.ca.gov/pubs_forms/license_app.pdf. In such cases under the proposed rule,
the petitioner would be allowed to obtain a 1-year approval for the
unlicensed H-1B beneficiary.
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The proposed rule would also clarify that an individual without an
occupational license may obtain H-1B status if he or she will be
employed in a state that allows such an unlicensed individual to fully
practice the occupation under the supervision of licensed senior or
supervisory personnel. In such cases, DHS will examine the nature of
the H-1B nonimmigrant worker's proposed duties and the level at which
they will be performed, as well as evidence provided by the petitioner
as to the identity, physical location, and credentials of the
individual(s) who will supervise the H-1B nonimmigrant worker. See
proposed 8 CFR 214.2(h)(4)(v)(C)(1). If the facts demonstrate that the
H-1B nonimmigrant worker will fully perform the duties of the
occupation under the supervision of licensed senior or supervisory
personnel in that occupation, H-1B classification may be granted. Id.
DHS invites public comment on all aspects of this proposal.
C. Processing of Applications for Employment Authorization Documents
DHS is also proposing to update its regulations governing the
processing of Applications for Employment Authorization (Forms I-765).
First, to help prevent gaps in employment authorization, DHS proposes
to automatically extend the validity of expiring EADs for up to 180
days from such document's and such employment authorization's
expiration date in certain circumstances upon the timely filing of an
application to renew such documents. Such automatic renewal would be
available to individuals with pending applications for adjustment of
status and other employment-authorized individuals who: (1) Are seeking
renewal of an EAD (and, if applicable, employment authorization) based
on the same employment authorization category under which it was
granted (or the renewal application is for an individual approved for
Temporary Protected Status (TPS) whose EAD was issued pursuant to 8 CFR
274a.12(c)(19)); and (2) either continue to be employment authorized
incident to status beyond the expiration of the
[[Page 81927]]
EAD or are applying for renewal under a category that does not first
require adjudication of an underlying application, petition, or
request. Second, to address national security and fraud concerns, DHS
is proposing to eliminate the current regulatory provisions that
require adjudication of EAD applications within 90 days of filing and
that authorize interim EADs in cases where such adjudications are not
conducted within the 90-day timeframe. Taken together, these updates
would provide additional stability and certainty to employment-
authorized individuals and their U.S. employers, while reducing
opportunities for fraud and better accommodating increased security
measures, including technological advances that utilize centralized
production of tamper-free documents.
1. Automatic Extensions of EADs in Certain Circumstances
First, DHS proposes to amend its regulations to help prevent gaps
in employment authorization for certain employment-authorized
individuals who are seeking to renew expiring EADs. Under the proposed
rule, such individuals who fall within certain classes of individuals
eligible for employment authorization may have the validity of their
EADs (and, if necessary, their employment authorization as well)
extended for up to 180 days from such document's and such employment
authorization's expiration date upon the timely filing of an
application to renew such EAD (or the renewal application is for an
individual approved for TPS whose EAD was issued pursuant to 8 CFR
274a.12(c)(19)). See proposed 8 CFR 274a.13(d)(1). Specifically, the
rule would authorize automatic extensions of their EADs--and, for those
qualifying individuals who are not employment authorized incident to
status, extensions of their employment authorization \76\--so long as
all of the following conditions are met:
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\76\ For classes of employment-eligible individuals listed at 8
CFR 274a.12(c), employment authorization is based on the
adjudication of the Application for Employment Authorization and is
not incident to their underlying immigration status. For such
individuals who are covered by this rule, DHS is proposing to extend
both their underlying employment authorization as well as their
EADs.
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(1) The individual files a request for renewal of his or her EAD
(currently through an Application for Employment Authorization, Form I-
765) prior to its expiration date.
(2) The individual is requesting renewal based on the same
employment authorization category under which the expiring EAD was
granted (as indicated on the face of the EAD), or the individual has
been approved for TPS and his or her EAD was issued pursuant to 8 CFR
274a.12(c)(19).
(3) The individual either continues to be employment authorized
incident to status beyond the expiration of the EAD or is applying for
renewal under a category that does not first require adjudication of an
underlying application, petition, or request.
Id. An expiring EAD that has its validity automatically extended
under this proposal would continue to be subject to any limitations and
conditions that applied before the extension. See proposed 8 CFR
274a.13(d)(2). Moreover, although the validity of such an EAD would be
extended for up to 180 days, such validity is automatically terminated
upon issuance of notification of a decision denying the individual's
renewal application. See proposed 8 CFR 274a.13(d)(3). The automatic
extension could also be terminated before a decision is made on the
renewal application through written notice to the applicant, notice
published in the Federal Register, or any other applicable authority.
Moreover, DHS is proposing that the expired EAD, in combination
with a Notice of Action (Form I-797C) indicating timely filing of the
application to renew the EAD (provided it lists the same employment
authorization category as that listed on the expiring or expired EAD),
would be considered an unexpired EAD for purposes of complying with
Employment Eligibility Verification (Form I-9) requirements. See
proposed 8 CFR 274a.13(d)(4). Thus, when the expiration date on the
face of the EAD is reached, an individual who is continuing in his or
her employment with the same employer may, along with the employer,
update the previously completed Form I-9 to reflect the extended
expiration date based on the automatic extension while the renewal is
pending. Reverification of employment authorization, however, would not
be triggered until after the expiration of the additional period of
validity granted through the automatic extension provisions discussed
above. See proposed 8 CFR 274a.2(b)(1)(vii).
These provisions would significantly mitigate the risk of gaps in
employment authorization and required documentation for eligible
individuals, thereby benefitting them and their employers. For
compliance with Form I-9 documentation requirements, however,
individuals would need to file their renewal applications far enough in
advance to receive the Notice of Action (Form I-797C), which is
necessary to document that filing for their employers, prior to the
expiration of their EADs. The Form I-797C generation and issuance
process is currently automated such that it is able to issue forms
within a few days after receiving an Application for Employment
Authorization. DHS expects that applicants would generally receive the
Form I-797C within 2 weeks of the date of filing.\77\
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\77\ Depending on any significant surges in filings, however,
there may be periods in which USCIS takes longer than 2 weeks to
issue Notices of Action (Forms I-797C).
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As discussed, DHS is proposing an automatic extension period of up
to 180 days past the expiration date noted on the face of the EAD for
qualifying individuals. DHS believes that this time period is
reasonable and provides more than ample time for USCIS to complete the
adjudication process based on USCIS's current 3-month average
processing time for Applications for Employment Authorization.\78\
Additionally, this 180-day automatic extension period is similar to
that used in other contexts and would thus provide consistency for
employers that are responsible for verifying employment authorization.
For example, DHS has a long-standing policy of providing 180-day
automatic extensions of EADs to re-registering beneficiaries of
Temporary Protected Status (TPS) when the re-registration period does
not provide sufficient time to renew EADs.\79\ DHS regulations also
provide certain F-1 nonimmigrants seeking extensions of Optional
Practical Training (OPT) with automatic extensions of their employment
authorization for up to 180 days. See 8 CFR 274a.12(b)(6)(iv).
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\78\ See current USCIS processing timeframes at https://egov.uscis.gov/cris/processTimesDisplayInit.do.
\79\ See, e.g., 80 FR 51582 (Aug. 25, 2015) (Notice auto-
extending EADs of Haitian TPS beneficiaries for 6 months).
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As noted above, DHS is proposing two conditions to ensure that only
eligible aliens receive automatic extensions of their EADs and thus to
protect the employment authorization program from abuse. First, DHS is
proposing to require that the renewal application be based on the same
employment authorization category as that indicated on the expiring
EAD, including renewal applications based on TPS re-registration filed
by applicants who still hold EADs that were initially issued under 8
CFR 274a.12(c)(19). See proposed 8 CFR 274a.13(d)(1)(ii). Because the
resulting Notice of Action (Form I-797C) would indicate the
[[Page 81928]]
employment authorization category cited in the application,\80\ this
requirement would help to ensure, both to DHS and to employers, that
such a notice was issued in response to a timely filed renewal
application. Second, DHS is proposing to limit eligibility for
automatic extensions to individuals who continue to be employment
authorized incident to status beyond the expiration of the EAD or who
are seeking to renew employment authorization in a category in which
eligibility for such renewal is not contingent on a USCIS adjudication
of a separate, underlying application, petition, or request. See
proposed 8 CFR 274a.13(d)(1)(iii). This limitation would similarly help
to ensure that only individuals eligible for employment authorization
are able to extend their employment authorization under this proposal.
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\80\ The Notice of Action that TPS beneficiaries will receive
may not necessarily be based on the filing of a Form I-765, but
instead on their TPS re-registration application filed on Form I-
821, Application for Temporary Protected Status. In such cases, the
employment authorization category would not be listed. USCIS intends
to revise the Notices of Action issued to TPS beneficiaries to
indicate the auto-extension provided by this rule.
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Based on the above parameters, DHS has identified 15 employment
authorization categories where renewal applicants would be able to
receive automatic extensions under this proposed rule. Among these are
applicants for adjustment of status. So long as their applications for
adjustment of status remain pending or USCIS determines, upon written
notice to the applicant or notice published in the Federal Register,
that it must terminate the auto-extension by category, these applicants
are eligible for employment authorization under current regulation. See
8 CFR 274a.12(c)(9). Because such eligibility is not contingent on the
adjudication of a separate application, petition, or request, DHS
believes it is reasonable to make automatic extensions available to
such individuals. The 15 categories of employment authorization that
would allow for automatic extensions under this rule are:
Aliens admitted as refugees. See 8 CFR 274a.12(a)(3).
Aliens granted asylum. See 8 CFR 274a.12(a)(5).
Aliens admitted as parents or dependent children of aliens
granted permanent residence under section 101(a)(27)(I) of the INA, 8
U.S.C. 1101(a)(27)(I). See 8 CFR 274a.12(a)(7).
Aliens admitted to the United States as citizens of the
Federated States of Micronesia or the Marshall Islands pursuant to
agreements between the United States and the former trust territories.
See 8 CFR 274a.12(a)(8).
Aliens granted withholding of deportation or removal. See
8 CFR 274a.12(a)(10).
Aliens granted Temporary Protected Status (TPS)
(regardless of the employment authorization category on their current
EADs).\81\ See 8 CFR 274a.12(a)(12) and (c)(19).
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\81\ DHS is further proposing to specifically identify TPS
beneficiaries as eligible for automatic extensions under this
proposed rule. See proposed 8 CFR 274a.13(d)(1)(iii). This will
include TPS beneficiaries who have existing EADs issued originally
under 8 CFR 274a.12(a)(12) or (c)(19).
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Aliens who have properly filed applications for TPS and
who have been deemed prima facie eligible for TPS under 8 CFR 244.10(a)
and have received an EAD as a ``temporary treatment benefit'' under 8
CFR 244.10(e) and 274a.12(c)(19).
Aliens who have properly filed applications for asylum or
withholding of deportation or removal. See 8 CFR 274a.12(c)(8).
Aliens who have filed applications for adjustment of
status under section 245 of the INA, 8 U.S.C. 1255. See 8 CFR
274a.12(c)(9).
Aliens who have filed applications for suspension of
deportation under section 244 of the INA (as it existed prior to April
1, 1997), cancellation of removal pursuant to section 240A of the INA,
or special rule cancellation of removal under section 309(f)(1) of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
See 8 CFR 274a.12(c)(10).
Aliens who have filed applications for creation of record
of lawful admission for permanent residence. See 8 CFR 274a.12(c)(16).
Aliens who have properly filed legalization applications
pursuant to section 210 of the INA, 8 U.S.C. 1160. See 8 CFR
274a.12(c)(20).
Aliens who have properly filed legalization applications
pursuant to section 245A of the INA, 8 U.S.C. 1255a. See 8 CFR
274a.12(c)(22).
Aliens who have filed applications for adjustment pursuant
to section 1104 of the LIFE Act. See 8 CFR 274a.12(c)(24).
Aliens who are the principal beneficiaries or qualified
children of approved VAWA self-petitioners, under the employment
authorization category ``(c)(31)'' in the form instructions to the
Application for Employment Authorization (Form I-765).
As noted above, each of these categories describes individuals who
are eligible to apply for employment authorization after their EADs
have expired and are thus candidates for automatic extensions of EADs
under this proposed rule. To provide maximum clarity to the regulated
public, DHS proposes to list these categories as eligible for automatic
extensions on USCIS' Web site.
DHS is not currently proposing to make automatic extensions of EADs
(or attendant employment authorization) available to other classes of
employment-authorized individuals. For example, DHS considered making
automatic extensions available to certain H-4 nonimmigrants (i.e.,
spouses of H-1B nonimmigrant workers) who are eligible for employment
authorization and EADs. See 8 CFR 274a.12(c)(26). Such H-4
nonimmigrants are generally eligible to renew their EADs, but only so
long as they can extend their H-4 status, which is itself dependent on
their spouses remaining in H-1B status. Thus, whether an H-4
nonimmigrant's eligibility for employment authorization continues
beyond the expiration date of his or her EAD is typically contingent
upon adjudication of an underlying application to extend his or her
stay in H-4 status and, in most instances, an underlying petition to
extend the stay of the H-1B nonimmigrant worker. In such cases, DHS
cannot be reasonably assured that the individual will continue to be
eligible to apply for employment authorization without first reviewing
the underlying application, petition, or request. DHS thus does not
propose to make automatic extensions of employment authorization
available to this category, or to other categories in which employment
authorization is contingent on adjudication of another application,
petition, or request.
DHS welcomes public comment on all aspects of this proposal.
2. Elimination of 90-Day Processing Timeframe and Interim EADs
Second, due to fraud and national security concerns, and in light
of technological and process advances with respect to document
production, DHS is proposing to eliminate certain existing regulations
concerning the processing of Applications for Employment Authorization
(Forms I-765). Specifically, DHS would eliminate the provision at 8 CFR
247a.13(d) that currently requires, with certain limited exceptions,
the adjudication of Applications for Employment Authorization within 90
days of receipt.\82\ DHS would also eliminate the
[[Page 81929]]
provision in that regulation that requires the issuance of interim EADs
with validity periods of up to 240 days when such an application is not
adjudicated within the 90-day period. In addition to the automatic
extension provisions for renewal applications proposed in this rule,
DHS would instead address processing timeframes through operational
policy guidance that reinforces the Department's continued commitment
to a 90-day processing timeframe and provides recourse to individuals
whose case is nearing the 90-day mark, including the ability to contact
USCIS to request prioritized processing.
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\82\ Excepted from the 90-day processing requirement are the
following classes of aliens: Applicants for asylum described in 8
CFR 274a.12(c)(8); certain H-4 spouses of H-1B nonimmigrants; and
applicants for adjustment applying under the Haitian Refugee
Immigrant Fairness Act of 1998 (HRIFA). Application processing for
asylum applicants are governed by current 8 CFR 274a.13(a)(2) and do
not include provisions for interim employment authorization
documentation. The provision at 8 CFR 274a.13(d) also exempts
adjustment applicants described in 8 CFR 245.13(j). In 2011, 8 CFR
245.13 was removed from DHS regulations. See 76 FR 53764, 53793
(Aug. 29, 2011). However, the cross-reference to 8 CFR 245.13(j) in
current 8 CFR 274a.13(d) was inadvertently retained. Prior to its
removal in 2011, 8 CFR 245.13 provided for adjustment of status for
certain nationals of Nicaragua and Cuba pursuant to section 202 of
the Nicaragua Adjustment and Central American Relief Act, Public Law
105-100, 111 Stat. 2160, 2193 (Nov. 19, 1997). The application
period for benefits under this provision ended April 1, 2000. USCIS
removed 8 CFR 245.13 from DHS regulations in 2011 as it no longer
has pending applications pursuant to this provision. See 76 FR at
53793.
---------------------------------------------------------------------------
DHS believes that the 90-day timeframe and interim EAD provisions
are outdated and no longer reflect the operational realities of the
Department, including its adoption of improved processes and
technological advances in document production to reduce fraud and
address threats to national security. The 90-day timeframe at 8 CFR
274a.13(d), for example, was established more than 20 years ago when
Applications for Employment Authorization were adjudicated at local
offices of legacy INS and corresponding documents were also produced by
such offices. See 52 FR 16216, 16228 (May 1, 1987) (setting
adjudication timeframe at 60 days); see also 56 FR 41767, 41787 (Aug.
23. 1991) (increasing adjudication timeframe to 90 days). At the time,
EADs (then known as Forms I-688B) were produced by local offices that
were equipped with stand-alone machines for such purposes. While
decentralized card production resulted in immediate and customized
customer service for the public, the cards that were produced did not
contain state-of-the art security features and were thus susceptible to
tampering and counterfeiting. Such deficiencies became increasingly
apparent as the United States faced new and increasing threats to
national security and public safety that did not exist when the current
regulations were promulgated.
In response to these concerns, the former INS and DHS made
considerable efforts to upgrade application procedures and leverage
technology to enhance integrity, security, and efficiency in all
aspects of the immigration process. For example, to combat the document
security problem discussed above, the former INS took steps to
centralize application filing locations and card production. By 2006,
DHS fully implemented these centralization efforts.\83\ DHS now
requires that Applications for Employment Authorization be filed at
remote processing centers.\84\ Some classes of employment-eligible
aliens are also required to appear at an Application Support Center
(ASC) for collection of their biometric information before DHS can
complete adjudication of such applications.\85\ If DHS ultimately
approves such an application, a card order is sent to a card production
facility. The card facility produces a tamper-proof card reflecting the
specific employment authorized category and mails that card to the
applicant.
---------------------------------------------------------------------------
\83\ See USCIS Memorandum from Michael Aytes, ``Elimination of
Form I-688B, Employment Authorization Card'' (Aug. 18, 2006). In
January 1997, the former INS began issuing new, more secure EADs
from a centralized location and gave it a new form number (I-766) to
distinguish it from the less secure, locally produced EADs (Forms I-
688B). DHS stopped issuing Form I-688B EADs from local offices
altogether in 2006.
\84\ Asylum applicants, however, make their request for
employment authorization directly on the Application for Asylum and
Withholding of Removal, Form I-589, and need not file a separate
Application for Employment Authorization (Form I-765) following a
grant of asylum. If they are requesting employment authorization
based on their pending asylum application, they must file a separate
request for employment authorization on Form I-765.
\85\ For example, many individuals who concurrently file their
Application for Employment Authorization with another application or
petition, such as TPS applicants, must appear at an ASC for
submission of their biometric information before DHS completes
adjudication of their applications.
---------------------------------------------------------------------------
While the 90-day timeframe and interim EAD provisions at 8 CFR
274a.13(d) may have made sense when applications were processed and
cards were produced at the local level, DHS believes that the
intervening changes discussed above now require that such provisions be
eliminated. DHS, for example, may be unable to meet the 90-day
processing timeframe for applicants who are required to submit
biometric information at an ASC but who do not provide such information
in a timely manner. DHS may also be unable to meet the 90-day timeframe
in a given case where security checks remain pending. Given the fraud
and national security concerns discussed above, DHS believes it is not
prudent to issue interim EADs in such cases. Moreover, the 90-day
timeframe constrains DHS' ability to maintain necessary levels of
security when application receipt volumes suddenly increase, as well as
the ability to implement security improvements if those improvements
may further extend the adjudication of applications in certain cases.
Given these considerations, DHS believes that the 90-day timeframe
and interim EAD provisions at 8 CFR 274a.13(d) do not provide
sufficient flexibility to reconcile with DHS' core missions to enforce
and administer our immigration laws and enhance security. Moreover, DHS
notes that under current processing timelines, elimination of these
provisions would not have any noticeable effect on the vast majority of
applicants.\86\ DHS remains committed to the current 90-day processing
goal, as well as the current policy of prioritizing application
processing where applications are pending for at least 75 days.
Consistent with current protocols, applicants whose initial or renewal
EAD applications have been pending for 75 days or more may continue
calling the National Customer Service Center (NCSC) to request priority
processing. In practice, as noted above, these policies result in the
adjudication of the vast majority of Applications for Employment
Authorization within 90 days of filing. DHS anticipates that it will be
unable to adjudicate applications within 90 days in only a small
percentage of cases, including those involving delays in security
processes.
---------------------------------------------------------------------------
\86\ See USCIS current processing times at https://egov.uscis.gov/cris/processTimesDisplayInit.do.
---------------------------------------------------------------------------
DHS welcomes public comment on all aspects of this proposal,
including alternate suggestions for regulatory amendments to the 90-day
processing timeframe and interim employment authorization provisions
not already discussed that address customer service, national security,
and identity verification considerations that USCIS must fulfill as
part of its core mission within DHS.
3. Conforming and Technical Amendments
Finally, DHS proposes to make conforming and technical amendments
to its regulations in light of the changes described above. The
proposed rule first
[[Page 81930]]
would amend DHS regulations concerning individuals applying for
adjustment of status under the Haitian Refugee Immigrant Fairness Act
of 1998 (HRIFA), Public Law 105-277, div. A, title IX, sections 901-
904, 112 Stat. 2681-538 to 542 (codified as amended at 8 U.S.C. 1255
note (2006)). These regulations currently provide that interim
employment authorization is accorded upon expiration of a 180-day
waiting period or 90 days from the date the Application for Employment
Authorization is filed, whichever comes later. See 8 CFR 245.15(n)(2).
Consistent with the proposed changes to 8 CFR 274a.13(d) discussed
above, DHS is proposing to delete from the regulatory text at 8 CFR
245.15(n)(2) both: (1) The cross-reference to 8 CFR 274a.13(d), and (2)
the term ``interim'' modifying employment authorization. See proposed 8
CFR 245.15(n)(2). Pursuant to these changes, DHS would be required to
issue an EAD, rather than an interim EAD, within the timeframes
currently provided in 8 CFR 245.15(n)(2). DHS also proposes making
technical amendments to 8 CFR 245.15(n)(2) by replacing specific
references to the ``Director of the Nebraska Service Center'' and
``Service'' with broader references to USCIS and DHS. DHS believes
these changes would not have wide impact, as the Department receives
very few applications for adjustment of status based on HRIFA.\87\
Additionally, HRIFA-based applicants for adjustment of status would be
eligible for the automatic 180-day extension of expiring EADs proposed
in this rule, provided they file a timely request for renewal.
---------------------------------------------------------------------------
\87\ See 2013 Yearbook of Immigration Statistics at p 18
(available at http://www.dhs.gov/publication/yearbook-2013) showing
a decrease in HRIFA adjustments from 2,451 in 2004 to 62 in 2013.
During fiscal year 2015, USCIS adjudicated 8 HRIFA adjustment
applications.
---------------------------------------------------------------------------
Similarly, the proposed rule would amend DHS regulations at 8 CFR
214.2(h)(9)(iv) concerning H-4 nonimmigrant spouses of H-1B
nonimmigrant workers. This regulation currently allows H-4 spouses to
file their applications for employment authorization concurrently with
their underlying requests for nonimmigrant status, but tolls the 90-day
processing timeframe at 8 CFR 274a.13(d) until the underlying benefit
requests are approved. See 8 CFR 214.2(h)(9)(iv); see also 80 FR 10284,
10297 (Feb. 25, 2015). Consistent with the changes described above, DHS
is proposing to delete the sentence in 8 CFR 214.2(h)(9)(iv) containing
the cross-reference to 8 CFR 274a.13(d), regarding the applicability of
the 90-day period to the processing of EADs for certain H-4 dependent
spouses. See proposed 8 CFR 214.2(h)(9)(iv). DHS is also proposing to
move the regulatory text authorizing the concurrent filing of
applications for employment authorization to 8 CFR 274a.13(a), and to
apply that language to any class of employment-eligible aliens to the
extent permitted by the application form instructions. This amendment
to the regulations would codify current DHS policy applicable to
several classes of foreign nationals, and provide clear authority to
expand it to additional classes of foreign nationals.
This rule also proposes a technical amendment that would merge the
current text at paragraph (a) of 8 CFR 274a.13, with similar,
repetitive text at paragraph (a)(1) of that section. The text at
paragraph (a) currently describes the application requirement with
respect to individuals authorized for employment incident to status
listed in 8 CFR 274a.12(a)(3), (4), (6) through (8), (10) through (15),
and (20). Text describing the application requirement is essentially
repeated at paragraph (a)(1), but with respect to aliens listed in 8
CFR 274a.12(c) (except asylum applicants at 8 CFR 274a.12(c)(8), which
are covered by 8 CFR 274a.13(a)(2)). DHS has determined that listing
the application requirements at both 8 CFR 274a.13(a) and (a)(1) is
unnecessarily repetitive and potentially confusing. DHS proposes to
describe the application requirement once in the introductory text at 8
CFR 274a.13(a), which would apply to classes of individuals described
at both 8 CFR 274a.12(a) and (c). The proposed text also would clarify
that the same application requirement would apply to both individuals
requesting only an EAD \88\ and those requesting both employment
authorization and an EAD.\89\ Additionally, the proposed text would
identify the employment authorization document that USCIS will issue
based on a grant of such application, which is Form I-766.
---------------------------------------------------------------------------
\88\ Individuals who would file an application for an EAD alone
are those aliens in 8 CFR 274a.12(a) who are authorized for
employment incident to status.
\89\ Individuals who would file an application for both
employment authorization and an EAD are those aliens listed in 8 CFR
274a.12(c).
---------------------------------------------------------------------------
V. Statutory and Regulatory Requirements.
A. Executive Orders 12866 and 13563 (Regulatory Planning and Review)
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available alternatives, and if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety
effects, distributive impacts, and equity). Executive Order 13563
emphasizes the importance of quantifying both costs and benefits, of
reducing costs, of harmonizing rules, and of promoting flexibility.
This rule has been designated a ``significant regulatory action'' that
is economically significant, under section 3(f)(1) of Executive Order
12866. Accordingly, the rule has been reviewed by the Office of
Management and Budget.
DHS is proposing to amend its regulations relating to certain
employment-based immigrant and nonimmigrant visa programs. The proposed
amendments interpret existing law as well as propose regulatory changes
in order to provide various benefits to participants in those programs,
including: Improved processes for U.S. employers seeking to sponsor and
retain immigrant and nonimmigrant workers, greater stability and job
flexibility for such workers, and increased transparency and
consistency in the application of agency policy related to affected
classifications. Many of these changes are primarily aimed at improving
the ability of U.S. employers to retain high-skilled workers who are
beneficiaries of approved employment-based immigrant visa petitions and
are waiting to become lawful permanent residents (LPRs), while
increasing the ability of such workers to seek promotions, accept
lateral positions with current employers, change employers, or pursue
other employment options.
First, DHS proposes to amend its regulations consistent with
certain worker portability and other provisions in the American
Competitiveness in the Twenty-first Century Act of 2000 (AC21), as
amended, as well as the American Competitiveness and Workforce
Improvement Act of 1998 (ACWIA). These proposed amendments would
clarify and improve longstanding agency policies and procedures,
previously articulated in agency memoranda and precedent decisions.
These proposed amendments would also implement sections of AC21 and
ACWIA relating to certain foreign workers, specifically sections on
workers who have been sponsored for LPR status by their employers. In
so doing, the proposed rule would provide a primary repository of
governing rules for the regulated community and enhance consistency
among agency adjudicators. In addition, the proposed rule would clarify
several interpretive questions raised by AC21 and ACWIA.
[[Page 81931]]
Second, and consistent with existing DHS authorities and the goals
of AC21 and ACWIA, DHS proposes to amend its regulations governing
certain employment-based immigrant and nonimmigrant visa programs to
provide additional stability and flexibility to employers and workers
in those programs. The proposed rule would, among other things: Improve
portability for certain beneficiaries of approved employment-based
immigrant visa petitions by limiting the grounds for automatic
revocation of petition approval; enhance job portability for such
beneficiaries by improving their ability to retain their priority dates
for use with subsequently approved employment-based immigrant visa
petitions; establish or extend grace periods for certain high-skilled
nonimmigrant workers so that they may more easily maintain their
nonimmigrant status when changing employment opportunities or preparing
for departure; and provide additional stability and flexibility to
certain high-skilled workers by allowing those who are working in the
United States in certain nonimmigrant statuses, are the beneficiaries
of approved employment-based immigrant visa petitions, are subject to
immigrant visa backlogs, and demonstrate compelling circumstances to
effectively apply for independent employment authorization for a
limited period. These and other proposed changes would provide much
needed flexibility to the beneficiaries of employment-based immigrant
visa petitions, as well as the U.S. employers who employ and sponsor
them for permanent residence. In addition, these changes will provide
greater stability and predictability for U.S. employers and avoid
potential disruptions to ongoing business operations in the United
States.
Finally, consistent with providing additional certainty and
stability to certain employment-authorized individuals and their U.S.
employers, DHS is also proposing changes to its regulations governing
the processing of applications for employment authorization to minimize
the risk of any gaps in such authorization. These changes would provide
for the automatic extension of the validity of certain Employment
Authorization Documents (EADs or Form I-766) for an interim period upon
the timely filing of an application to renew such documents. At the
same time, in light of national security and fraud concerns, DHS is
proposing to remove regulations that provide a 90-day processing
timeline for EAD applications and that require the issuance of interim
EADs if processing extends beyond the 90-day mark.
Table 1, below, provides a more detailed summary of the proposed
provisions and their impacts.
Table 1--Summary of Provisions and Impacts
------------------------------------------------------------------------
Expected impact of
Provisions Purpose proposed rule
------------------------------------------------------------------------
Priority Date............... Clarifies priority Quantitative:
date when a labor None.
certification is
not required by INA
203(b).
Qualitative:
Removes
ambiguity and sets
consistent priority
dates for affected
petitioners and
beneficiaries.
Priority Date Retention..... Revises regulation Quantitative:
so that the None.
priority date
attached to an
employment-based
immigrant visa
petition is only
lost when: USCIS
revokes approval of
the petition for
error, fraud or
willful
misrepresentation
of a material fact,
or upon revocation
or invalidation of
the labor
certification
accompanying the
petition.
Qualitative:
Results in
administrative
efficiency and
predictability by
explicitly listing
when priority dates
are lost as these
revoked petition
approvals cannot be
used as a basis for
an immigrant visa.
Employment-Based Immigrant Incorporates Quantitative:
Visa Petition Portability statutory Petitioners--
Under 204(j). portability Opportunity
provisions into costs to
regulation. petitioners for 1
year range from
$128,126 to
$4,678,956.
DHS/USCIS--
Neutral
because the
proposed
supplementary form
to the application
for adjustment of
status to permanent
residence will
formalize the
process for USCIS
requests for
evidence of
compliance with
section 204(j)
porting.
Qualitative:
Applicants/
Petitioners--
Provides
stability and job
flexibility to
certain individuals
with approved
employment-based
immigrant visas;
Clarifies
the definition of
``same or similar
occupational
classifications``;
Allows
certain foreign
workers to advance
and progress in
their careers;
Potential
increased employee
replacement costs
for employers.
DHS/USCIS--
Administrative
efficiency;
Standardized and
streamlined
process.
[[Page 81932]]
Employment Authorization for Proposes provisions Quantitative: Total
Certain Nonimmigrants Based allowing certain costs over 10-year
on Compelling Circumstances. nonimmigrant period to
principal applicants are:
beneficiaries, and $553.2
their dependent million for
spouses and undiscounted costs.
children, to apply $489.5
for unrestricted million at a 3%
employment discounted rate.
authorization if $423.2
the principal million at a 7%
beneficiary has an discounted rate.
approved EB-1, EB-
2, or EB-3
immigrant visa
petition while
waiting for his/her
immigrant visa to
become available.
Applicants must
demonstrate
compelling
circumstances
justifying an
independent grant
of employment
authorization.
Qualitative:
Applicants--
Provides
ability for
nonimmigrants who
have been sponsored
for LPR status to
change jobs or
employers when
compelling
circumstances
arise;
Incentivizes such
skilled
nonimmigrant
workers
contributing to the
economy to continue
seeking LPR status;
Nonimmigrant
principal workers
who take advantage
of the unrestricted
EAD would abandon
their current
nonimmigrant status
and not be able to
adjust to LPR
status in the
United States.
Consular processing
imposes potentially
significant costs,
risk and
uncertainty for
individuals and
their families as
well.
Dependents--
Allows them
to enter labor
market earlier and
can contribute to
household income.
90-Day Processing Time for Eliminates Quantitative:
Employment Authorization regulatory None.
Applications. requirement for 90-
day adjudication
timeframe and
issuance of interim-
EADs. Proposes an
automatic extension
of EADs for up to
180 days for
certain workers
filing renewal
requests.
Qualitative:
Applicants--
Removing a
regulatory
timeframe and
moving to one
governed by
processing goals
could potentially
lead to longer
processing times
whenever the agency
is faced with
higher than
expected filing
volumes. If such a
situation were to
occur, this could
lead to potential
delays in work
employment start
dates for first-
time EAD applicants
until approval is
obtained. However,
USCIS believes such
scenarios would be
rare and mitigated
by the auto
extension provision
for renewal
applications which
would allow the
movement of
resources in such
situations;
Providing
the automatic
continuing
authorization for
up to 180 days for
certain renewal
applicants could
lead to less
turnover costs for
U.S. employers.
DHS/USCIS--
Streamlines
the application and
card issuance
processes;
Enhances
the ability to
ensure all national
security
verification checks
are completed;
Reduces
agency duplication
efforts;
Reduces
opportunities for
fraud and better
accommodates
increased security
measures.
Automatic Revocation With Revises regulations Quantitative:
Respect to Approved so that a petition None.
Employment-Based Immigrant may continue to
Visa Petitions. remain valid,
despite withdrawal
by the employer or
termination of the
employer's business
after 180 days or
more of approval.
Qualitative:
Beneficiary
retains priority
date, has porting
ability under INA
204(j), or AC21
sections 104 (c)
and (b), and may be
eligible for the
new unrestricted
compelling
circumstances EAD.
Period of Admission for Nonimmigrants in Quantitative:
Certain Nonimmigrant certain high- None.
Classifications. skilled,
nonimmigrant
classifications
would be granted a
grace period of up
to 10 days before
and after their
validity period and
a one-time grace
period, upon
cessation of
employment, of up
to 60 days or until
the end of their
authorized validity
period, whichever
is shorter.
[[Page 81933]]
Qualitative:
Nonimmigrant Visa
Holders--
Assists the
beneficiary in
getting
sufficiently
settled such that
they are
immediately able to
begin working upon
the start of their
petition validity
period;
Provides
time necessary to
wrap up affairs to
depart the country;
Would not
have to enter into
non-status period
or take other
actions to extend,
change, or
otherwise maintain
lawful status after
the period of
authorized
employment ends in
order to wrap up
affairs to respond
to sudden or
unexpected changes
related to their
employment, or to
seek a change of
status to different
nonimmigrant
classification.
Portability of H-1B Status H- Updates, improves, Quantitative:
1B Licensing Requirements and clarifies DHS None.
Calculating the H-1B regulations
Admission Period Exemptions consistent with
Due to Lengthy Adjudication policy guidance.
Delays Per Country
Limitation Exemptions
Employer Debarment and H-1B
Whistleblower Provisions.
Qualitative:
Formalizes
existing DHS policy
in the regulations,
which will give the
public access to
existing policy in
one location.
Exemptions to the H-1B Codifies definition Quantitative:
Numerical Cap and Revised of institution of None.
Definition of ``Related and higher education
Affiliated Nonprofit and adds a broader
Entity'' in the ACWIA Fee definition of
Context. related or
affiliated
nonprofit entity.
Also, revises the
definition of
related or
affiliated
nonprofit entity
for purposes of the
ACWIA fee to
conform to the new
proposed definition
of the same term
for H-1B numerical
cap exemption.
Qualitative:
Expands the
numbers of
petitioners that
are cap exempt and
thus allows greater
access by certain
employers to H-1B
workers.
------------------------------------------------------------------------
As required by OMB Circular A-4,\90\ Table 2 also presents the
prepared accounting statement showing the expenditures associated with
the provisions of these regulations. The main benefits of this proposed
regulation are to improve processes for U.S. employers seeking to
sponsor and retain immigrant and nonimmigrant workers, provide greater
stability and job flexibility for such workers, and increase
transparency and consistency in the application of agency policy
related to affected classifications.
---------------------------------------------------------------------------
\90\ OMB Circular A-4 is available at www.whitehouse.gov/sites/default/files/omb/assets/omb/circulars/a004/a-4.pdf.
Table 2--OMB A-4 Accounting Statement
[$ millions, 2015]
----------------------------------------------------------------------------------------------------------------
Source citation
Category Primary estimate Minimum estimate Maximum estimate (RIA, preamble,
etc.)
----------------------------------------------------------------------------------------------------------------
Benefits
----------------------------------------------------------------------------------------------------------------
Monetized Benefits.............. Not estimated..... Not estimated..... Not estimated..... RIA.
Annualized quantified, but 0................. 0................. 0................. RIA.
unmonetized, benefits.
------------------------------------------------------------
Unquantified Benefits........... Improves processes for U.S. employers seeking to sponsor RIA.
and retain immigrant and nonimmigrant workers, provides
greater stability and job flexibility for such workers,
and increases transparency and consistency in the
application of agency policy related to affected
classifications.
----------------------------------------------------------------------------------------------------------------
[[Page 81934]]
Costs
----------------------------------------------------------------------------------------------------------------
Annualized monetized costs for (7%) $62.2........ $60.7............. $64.9............. RIA.
10 year period starting in 2016
to 2025 (discount rate in
parenthesis).
(3%) $59.7........ $57.9............. $62.1............. RIA.
Annualized quantified, but N/A............... N/A............... N/A............... RIA.
unmonetized, costs.
------------------------------------------------------------
Qualitative (unquantified) costs Potential turnover cost due to enhanced job mobility of RIA.
beneficiaries of nonimmigrant and immigrant petitions.
----------------------------------------------------------------------------------------------------------------
Transfers
----------------------------------------------------------------------------------------------------------------
Annualized monetized transfers: N/A............... 0................. 0................. RIA.
``on budget''.
From whom to whom?.............. N/A............... N/A............... N/A............... N/A.
--------------------
Annualized monetized transfers: N/A............... 0................. 0................. RIA.
``off-budget''.
From whom to whom?.............. N/A............... N/A............... N/A............... N/A.
------------------------------------------------------------
Miscellaneous Analyses/Category. Effects Source Citation
(RIA, preamble,
etc.).
Effects on state, local, and/or None RIA.
tribal governments.
Effects on small businesses..... No direct costs. Indirect effects only. RIA.
Effects on wages................ None None.
Effects on growth............... None None.
----------------------------------------------------------------------------------------------------------------
DHS has prepared a full analysis according to Executive Orders
12866 and 13563 which can be found by searching for RIN 1615-AC05 on
regulations.gov.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996, Public Law 104-121 (March 29, 1996), requires Federal agencies to
consider the potential impact of regulations on small entities during
the development of their rules. The term ``small entities'' comprises
small businesses, not-for-profit organizations that are not dominant in
their fields, and governmental jurisdictions with populations of less
than 50,000. An ``individual'' is not defined by the RFA as a small
entity, and costs to an individual from a rule are not considered for
RFA purposes. In addition, the courts have held that the RFA requires
an agency to perform a regulatory flexibility analysis of small entity
impacts only when a rule directly regulates small entities.\91\
Consequently, any indirect impacts from a rule to a small entity are
not costs for RFA purposes.
---------------------------------------------------------------------------
\91\ A Guide for Government Agencies How to Comply with the
Regulatory Flexibility Act, May 2012 page 22. See Direct versus
indirect impact discussion, https://www.sba.gov/sites/default/files/advocacy/rfaguide_0512_0.pdf.
---------------------------------------------------------------------------
The changes proposed by DHS have direct impacts to individual
beneficiaries of employment-based nonimmigrant and immigrant visa
petitions. As individual beneficiaries of employment-based immigrant
visa petitions are not defined as small entities, costs to these
individuals are not considered as RFA costs. However, due to the fact
that the petitions are filed by a sponsoring employer, this rule has
indirect effects on employers. The original sponsoring employer that
files the petition on behalf of an employee will incur employee
turnover related costs as those employees port to the same or a similar
occupation with another employer. Therefore, DHS has chosen to examine
the indirect impact of this proposed rule on small entities as well.
The analysis of the indirect impacts of these proposed changes on small
entities follows.
1. Initial Regulatory Flexibility Analysis
Small entities primarily affected by this rule that could incur
additional indirect costs are those that file and pay fees for certain
immigration benefit petitions, including Form I-140, Immigrant Petition
for Alien Worker. DHS conducted a statistically valid sample analysis
of these petition types to determine the number of small entities
indirectly impacted by this rule. While DHS acknowledges that the
changes engendered by these proposed rules would directly impact
individuals who are beneficiaries of employment-based immigrant visa
petitions, which are not small entities as defined by the RFA, DHS
believes that the actions taken by such individuals as a result of
these proposals will have immediate indirect impacts on U.S. employers.
Employers will be indirectly impacted by employee turnover-related
costs as beneficiaries of employment-based immigrant visa petitions
take advantage of these proposals. Therefore, DHS is choosing to
discuss these indirect impacts in this initial regulatory flexibility
analysis to aid the public in commenting on the impact of the proposed
requirements.
In particular, DHS requests information and data to gain a
better understanding of the potential impact of this rule on small
entities. Specifically, DHS requests information on: The numbers of
small entities that have filed immigrant visa petitions for high-
skilled workers who are waiting to adjust status, and the potential
costs to such small entities associated with employee turnover
resulting from employees who port;
[[Page 81935]]
the potential costs to employers that are small entities
associated with employee turnover if a sponsored nonimmigrant worker
pursues the option for unrestricted employment authorization based on
compelling circumstances; and
the number of small entities that would qualify for the
proposed exemptions of the ACWIA fee when petitioning for H-1B
nonimmigrant workers.
a. A description of the reasons why the action by the agency is
being considered.
The purpose of this action, in part, is to amend regulations
affecting certain employment-based immigrant and nonimmigrant
classifications in order for DHS regulations to conform to provisions
of AC21 and ACWIA. The proposed rule also seeks to permit greater job
flexibility, mobility and stability to beneficiaries of employment-
based nonimmigrant and immigrant visa petitions, especially when faced
with long waits for immigrant visas. In many instances, the need for
these individuals' employment has been demonstrated through the labor
certification process. In most cases, before an employment-based
immigrant visa petition can be approved, the DOL has certified that
there are no U.S. workers who are ready, willing and available to fill
those positions in the area of intended employment. By increasing
flexibility and mobility, the worker is more likely to remain in the
United States and help fill the demonstrated need for his or her
services.
b. A succinct statement of the objectives of, and legal basis for,
the proposed rule.
DHS objectives and legal authority for this proposed rule are
discussed in the preamble.
c. A description and, where feasible, an estimate of the number of
small entities to which the proposed changes would apply.
DHS conducted a statistically valid sample analysis of employment-
based immigrant visa petitions to determine the maximum potential
number of small entities indirectly impacted by this rule when a high-
skilled worker who has an approved employment-based immigrant visa
petition and a pending adjustment of status application for 180 days or
more ports to another employer. DHS utilized a subscription-based
online database of U.S. entities, Hoovers Online, as well as two other
open-access, free databases of public and private entities, Manta and
Cortera, to determine the North American Industry Classification System
(NAICS) code, revenue, and employee count for each entity.\92\ In order
to determine a business' size, DHS first classified each entity by its
NAICS code, and then used SBA guidelines to note the requisite revenue
or employee count threshold for each entity. Some entities were
classified as small based on their annual revenue and some by number of
employees.
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\92\ The Hoovers Web site can be found at http://www.hoovers.com/; The Manta Web site can be found at http://www.manta.com/; and the Cortera Web site can be found at https://www.cortera.com/.
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Using FY 2013 data on actual filings of employment-based immigrant
visa petitions, DHS collected internal data for each filing
organization. Each entity may make multiple filings. For instance,
there were 63,953 employment-based immigrant visa petitions filed, but
only 24,912 unique entities that filed petitions. DHS devised a
methodology to conduct the small entity analysis based on a
representative, random sample of the potentially impacted population.
To achieve a 95 percent confidence level and a 5 percent confidence
interval on a population of 24,912 entities, DHS used the standard
statistical formula to determine that a minimum sample size of 385
entities was necessary.\93\ DHS created a sample size 15 percent
greater than the 385 minimum necessary in order to increase the
likelihood that our matches would meet or exceed the minimum required
sample. Of the 443 entities sampled, 344 instances resulted in entities
defined as small. Of the 344 small entities, 185 entities were
classified as small by revenue or number of employees. The remaining
159 entities were classified as small because information was not found
(either no petitioner name was found or no information was found in the
databases).
---------------------------------------------------------------------------
\93\ See https://www.qualtrics.com/blog/determining-sample-size/.
Table 1--Summary Statistics and Results of Small Entity Analysis of Form
I-140 Petitions
------------------------------------------------------------------------
Proportion of
Parameter Quantity sample
(percent)
------------------------------------------------------------------------
Population--petitions................... 63,953 ..............
Population--unique entities............. 24,912 ..............
Minimum Required Sample................. 385 ..............
Selected Sample......................... 443 100.0
Entities Classified as ``Not Small''
by revenue.......................... 73 16.5
by number of employees.............. 26 5.9
Entities Classified as ``Small''
by revenue.......................... 145 32.7
by number of employees.............. 40 9.0
because no petitioner name found.... 109 24.6
because no information found in 50 11.3
databases..........................
-------------------------------
Total Number of Small Entities.. 344 77.7
------------------------------------------------------------------------
Source: USCIS analysis.
d. A description of the projected reporting, recordkeeping, and
other compliance requirements of the proposed rule, including an
estimate of the classes of small entities that will be subject to the
requirement and the types of professional skills.
The proposed amendments in this rule do not place direct
requirements on small entities that petition for workers. However, if
the principal beneficiaries of employment-based immigrant visa
petitions take advantage of the flexibility provisions proposed herein
(including porting to a new sponsoring
[[Page 81936]]
employer or pursuing the unrestricted employment authorization in cases
involving compelling circumstances), there could be increased turnover
costs (employee replacement costs) for U.S. entities sponsoring the
employment of those beneficiaries, including costs of petitioning for
new employees. While DHS has estimated 29,166 individuals who are
eligible to port to a new employer under section 204(j) of the INA, the
Department was unable to predict how many will actually do so. As
mentioned earlier in the Executive Orders 12866 and 13563 analysis, a
range of opportunity costs of time to petitioners who prepare
Supplement J ($43.93 for a human resources specialist, $93.69 for an
in-house lawyer, or $160.43 for an outsourced lawyer) are anticipated
depending on the total numbers of individuals who port. However, DHS is
currently unable to determine the numbers of small entities who take on
immigrant sponsorship of high-skilled workers who are waiting to adjust
status from the original sponsoring employer. The estimates presented
also do not represent employee turnover costs to the original
sponsoring employer, but only represent paperwork costs. Similarly, DHS
is unable to predict the volume of principal beneficiaries of
employment-based immigrant visa petitions who will pursue the option
for unrestricted employment authorization based on compelling
circumstances.
The proposed amendments relating to the H-1B numerical cap
exemptions may impact some small entities by allowing them to qualify
for exemptions of the ACWIA fee when petitioning for H-1B nonimmigrant
workers. As DHS cannot predict the numbers of entities these proposed
amendments would impact at this time, the exact impact on small
entities is not clear, though some positive impact should be
anticipated.
e. An identification of all relevant Federal rules, to the extent
practical, that may duplicate, overlap, or conflict with the proposed
rule.
DHS is unaware of any duplicative, overlapping, or conflicting
Federal rules, but invites any comment and information regarding any
such rules.
f. Description of any significant alternatives to the proposed rule
that accomplish the stated objectives of applicable statutes and that
minimize any significant economic impact of the proposed rule on small
entities.
This rule does not impose direct costs on small entities. Rather,
this rule imposes indirect cost on small entities because the proposed
provisions would affect beneficiaries of employment-based immigrant
visa petitions. If those beneficiaries take actions or steps in line
with the proposals that provide greater flexibility and job mobility,
then there would be an immediate indirect impact--an externality--to
the current sponsoring U.S. employers. DHS considered whether to
exclude from the flexibility and job mobility provisions those
beneficiaries who were sponsored by U.S. employers that were considered
small. However, because DHS so limited the eligibility for unrestricted
employment authorization to beneficiaries who are able to demonstrate
compelling circumstances, and restricted the portability provisions to
those seeking employment within the same or similar occupational
classification(s), DHS did not feel it was necessary to pursue this
proposal. There are no other alternatives that DHS considered that
would further limit or shield small entities from the potential of
negative externalities and that would still accomplish the goals of
this regulation. To reiterate, the goals of this regulation include
providing increased flexibility and normal job progression for
beneficiaries of approved employment-based immigrant visa petitions. To
incorporate alternatives that would limit such mobility for
beneficiaries that are employed or sponsored by small entities would be
counterproductive to the goals of this rule. DHS welcomes public
comments on significant alternatives to the proposed rule that would
minimize significant economic impact to small entities.
C. Unfunded Mandates Reform Act of 1995
The Unfunded Mandate Reform Act of 1995 (UMRA) is intended, among
other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and tribal governments. Title II of UMRA
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed or final agency rule
that may result in a $100 million or more expenditure (adjusted
annually for inflation) in any one year by State, local, and tribal
governments, in the aggregate, or by the private sector. The value
equivalent of $100,000,000 in 1995 adjusted for inflation to 2014
levels by the Consumer Price Index for All Urban Consumers is
$155,000,000.
Although this rule does exceed the $100 million expenditure
threshold in the first year of implementation (adjusted for inflation),
this rulemaking does not contain such a mandate. Providing job
flexibility through unrestricted employment authorization to a limited
number of employment-authorized nonimmigrants in compelling
circumstances is not a required immigration benefit, nor will use of
the proposed flexibilities result in any expenditures by State, local,
and tribal governments. The requirements of Title II of UMRA,
therefore, do not apply, and DHS has not prepared a statement under
UMRA.
D. Small Business Regulatory Enforcement Fairness Act of 1996
This proposed rule is a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will
result in an annual effect on the economy of more than $100 million in
the first year only. For each subsequent year, the annual effect on the
economy will remain under $100 million. As small businesses may be
impacted under this proposed regulation, DHS has prepared a Regulatory
Flexibility Act (RFA) analysis. The RFA analysis can be found with the
analysis prepared under Executive Orders 12866 and 13563 on
regulations.gov.
E. Executive Order 13132 (Federalism)
This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
F. Executive Order 12988 (Civil Justice Reform)
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
G. Paperwork Reduction Act
Under the Paperwork Reduction Act (PRA) of 1995, Public Law 104-13,
Departments are required to submit to the Office of Management and
Budget (OMB), for review and approval, any reporting requirements
inherent in a rule. This rule proposes revisions to the following
information collections:
1. The Application for Employment Authorization, Form I-765; and
Form I-765 Work Sheet, Form I-765WS, OMB Control Number 1615-0040.
Specifically, USCIS is revising this collection by revising the
instructions to Form I-765 to include information for the newly
proposed group of applicants (beneficiaries of an approved Form I-140
who are in the United States in E-
[[Page 81937]]
3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status, who are the
beneficiaries of an approved employment-based immigrant visa petition,
who do not have immigrant visas immediately available to them, and who
demonstrate compelling circumstances justifying a grant of employment
authorization) eligible to apply for employment authorization under
proposed section 8 CFR 274a.12(c)(35). Their dependent spouses and
children who are present in the United States in nonimmigrant status
will also be eligible to obtain employment authorization under proposed
section 8 CFR 274a.12(c)(36), provided that the principal alien has
been granted employment authorization. USCIS is also proposing to amend
Form I-765 to include Yes/No questions requiring these applicants to
disclose certain criminal convictions. USCIS estimates an upper-bound
average of 155,067 respondents will request employment authorization as
a result of the changes proposed by this rule in the first 2 years.
This average estimate is derived from a maximum estimate of 257,039 new
respondents who may file applications for employment authorization
documents in year 1 and a maximum estimate of 53,095 respondents in
year 2. USCIS averaged this estimate for new I-765 respondents over a
2-year period of time based on its request seeking a 2-year approval of
the form and its instructions from OMB.
2. USCIS is revising the form and its instructions and the estimate
of total burden hours has increased due to the addition of this new
population of Form I-765 filers, and the increase of burden hours
associated with the collection of biometrics from these applicants.
3. The Immigrant Petition for Alien Worker, Form I-140; OMB Control
Number 1615-0015. Specifically, USCIS is revising this information
collection to remove ambiguity regarding whether information about the
principal beneficiary's dependent family members should be entered on
Form I-140, by revising the word ``requests'' to ``requires'' for
clarification in the form instructions. USCIS is also revising the
instructions to remove the terms ``in duplicate'' in the second
paragraph under the labor certification section of the instructions
because USCIS no longer requires uncertified Employment and Training
Administration (ETA) Forms 9089 to be submitted in duplicate. There is
no change in the data being captured on the information collection
instrument, but there is a change to the estimated annual burden hours
as a result of USCIS' revised estimate of the number of respondents for
this collection of information.
4. The Petition for Nonimmigrant Worker, Form I-129, OMB Control
Number 1615-0009. USCIS is making revisions to Form I-129, specifically
the H-1B Data Collection and Filing Fee Exemption Supplement and the
accompanying instructions, to correspond with revisions to the
regulatory definition of ``related or affiliated nonprofit entities''
for the purposes of determining whether the petitioner is exempt from:
(1) Payment of the $750/$1,500 fee associated with the American
Competitiveness and Workforce Improvement Act (ACWIA) and (2) the
statutory numerical limitation on H-1B visas (also known as the H-1B
cap). USCIS does not estimate that new respondents would file petitions
for alien workers as a result of the changes proposed by this rule.
5. The Application to Register Permanent Residence or Adjust
Status, Form I-485, including new Supplement J, ``Confirmation of Bona
Fide Job Offer or Request for Job Portability under INA Section
204(J),'' OMB Control Number 1615-0023. Specifically, USCIS is creating
a new Supplement J to Form I-485 to allow the adjustment applicant
requesting portability under section 204(j) of the INA, and the U.S.
employer offering the applicant a new permanent job offer, to provide
formal attestations regarding important aspects of the job offer.
Providing such attestations is an essential step to establish
eligibility for adjustment of status in any employment-based immigrant
visa classification requiring a job offer, regardless of whether the
applicant is making a portability request under section 204(j) or is
seeking to adjust status based upon the same job that was offered in
the underlying immigrant visa petition. Through this new supplement,
USCIS will collect required information from U.S. employers offering a
new permanent job offer to a specific worker under section 204(j).
Moreover, Supplement J will also be used by applicants who are not
porting pursuant to section 204(j) to confirm that the original job
offer described in the Form I-140 petition is still bona fide and
available to the applicant at the time the applicant files Form I-485.
Supplement J will replace the current Form I-485 initial evidence
requirement that an applicant must submit a letter on the letterhead of
the petitioning U.S. employer that confirms that the job offer on which
the Form I-140 petition is based is still available to the applicant.
This supplement will also serve as an important anti-fraud measure,
and it will allow USCIS to validate employers extending new permanent
job offers to individuals under section 204(j). USCIS estimates that
approximately 29,166 new respondents would file Supplement J as a
result of the changes proposed by the rule.
Additionally, USCIS is revising the instructions to Form I-485 to
reflect the implementation of Supplement J. The Form I-485 instructions
are also being revised to clarify that eligible applicants will need to
file Supplement J to request job portability under section 204(j) of
the INA. There is no change to the estimated annual burden hours as a
result of this revision as a result of the changes proposed in this
rule.
DHS is requesting comments on the proposed revisions to these
information collections until February 29, 2016.
In accordance with the PRA, information collection notices are
published in the Federal Register to obtain comments regarding the
nature of the information collection, the categories of respondents,
the estimated burden (i.e., the time, effort, and resources used by the
respondents to respond), the estimated cost to the respondent, and the
actual information collection instruments. When submitting comments on
this information collection, your comments should address one or more
of the following four points:
(1) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the proposed collection of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses.
Overview of this information collection:
(1) Type of Information Collection: Revision of a Currently
Approved Collection.
(2) Title of the Forms/Collections:
Application for Employment Authorization Document;
Form I-765 Work Sheet;
Immigrant Petition for Alien Worker;
[[Page 81938]]
Petition for Nonimmigrant Worker;
Application to Register Permanent Residence or Adjust
Status.
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: Forms I-765/I-765WS, I-140, I-129 and I-
485; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract:
Form I-765: Primary: Individuals or households: This form was
developed for individuals to request employment authorization and
evidence of that employment authorization. USCIS is revising this form
to add a new class of workers eligible to apply for employment
authorization as the beneficiary of a valid immigrant petition for
classification under sections 203(b)(1), 203(b)(2) or 203(b)(3) of the
INA. Eligible applicants must be physically present in the United
States in E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status, and must
demonstrate that they face compelling circumstances while they wait for
their immigrant visas to become available. Dependent spouses and
children who are present in the United States in nonimmigrant status
are also eligible to apply provided that the principal has been granted
employment authorization. Supporting documentation demonstrating
eligibility must be filed with the application. The form instructions
list examples of relevant documentation.
Form I-140: Primary: Business or other for-profit organizations, as
well as not-for profit organizations. USCIS will use the information
furnished on this information collection to classify individuals under
sections 203(b)(1), 203(b)(2) or 203(b)(3) of the INA.
Form I-129: Primary: Business: This form is used by an employer to
petition for workers to come to the U.S. temporarily to perform
services, labor, and training or to request extensions of stay or
changes in nonimmigrant status for nonimmigrant workers. USCIS is
revising Form I-129, specifically the H-1B Data Collection and Filing
Fee Exemption Supplement, and the accompanying instructions, to
correspond with revisions to the regulatory definition of ``related or
affiliated nonprofit entities'' for the purposes of determining whether
the petitioner is exempt from: (1) Payment of the $750/$1,500 fee
associated with the American Competitiveness and Workforce Improvement
Act (ACWIA), and (2) the statutory numerical limitation on H-1B visas
(also known as the cap).
Form I-485: Primary: Individuals or households: The information
collected is used to determine eligibility to adjust status under
section 245 of the INA. The instructions to Form I-485, Application to
Register Permanent Residence or Adjust Status, are being revised to
reflect the implementation of Form I-485 Supplement J, Confirmation of
Bona Fide Job Offer or Request for Job Portability under INA Section
204(j) (Supplement J). Supplement J will be used by individuals
applying for adjustment of status to lawful permanent resident on the
basis of being the principal beneficiary of an approved Form I-140,
Immigrant Petition for Alien Worker. Applicants will use Supplement J
to confirm that the job offer described in the Form I-140 petition is
still bona fide and available to the applicant at the time the
applicant files Form I-485. Supplement J is replacing the current Form
I-485 initial evidence requirement that an applicant must submit a
letter on the letterhead of the petitioning employer which confirms
that the job offer on which the Form I-140 petition is based is still
available to the applicant. Applicants will also use Supplement J when
requesting job portability pursuant to section 204(j) of the INA.
Supplement J will provide a standardized procedure along with specific
evidentiary requirements for all job portability requests submitted to
USCIS.
(5) An estimate of the total annual number of respondents and the
amount of time estimated for an average respondent to respond:
Form I-765/I-765WS:
[cir] 4,618,099 responses related to Form I-765 at 3.42 hours per
response;
[cir] 437,070 responses related to Form I-765WS at .50 hours per
response;
[cir] 592,137 responses related to Biometrics services at 1.17
hours; and
[cir] 4,618,099 responses related to Passport-Style Photographs at
.50 hours per response.
Form I-140:
[cir] 101,719 respondents at 1.5 hours per response.
Form I-129:
[cir] Form I-129--333,891 respondents at 2.34 hours;
[cir] E-1/E-2 Classification to Form I-129--4,760 respondents at
.67 hours;
[cir] Trade Agreement Supplement to Form I-129--3,057 respondents
at .67 hours;
[cir] H Classification Supplement to Form I-129--255,872
respondents at 2 hours;
[cir] H-1B and H-1B1 Data Collection and Filing Fee Exemption
Supplement--243,965 respondents at 1 hour;
[cir] L Classification Supplement to Form I-129--37,831 respondents
at 1.34 hours;
[cir] O and P Classifications Supplement to Form I-129--22,710
respondents at 1 hour;
[cir] Q-1 Classification Supplement to Form I-129--155 respondents
at .34 hours; and
[cir] R-1 Classification Supplement to Form I-129--6,635
respondents at 2.34 hours.
Form I-485:
[cir] 697,811 respondents at 6.25 hours per response;
[cir] 697,811 respondents related to Biometrics services at 1.17
hours.
(6) An estimate of the total annual public burden (in hours)
associated with these collections:
Form I-765/I-765WS: 19,014,283.37 hours.
Form I-140: 152,579 hours.
Form I-129: 1,631,234 hours.
Form I-485: 5,238,957 hours.
(7) An estimate of the annual public burden (monetized) associated
with these collections:
Form I-765/I-765WS: $1,357,721,106
Form I-140: $42,365,964.
Form I-129: $73,751,280.
Form I-485: $239,349,173.
List of Subjects
8 CFR Part 204
Administrative practice and procedure, Adoption and foster care,
Immigration, Reporting and recordkeeping requirements.
8 CFR Part 205
Administrative practice and procedure, Immigration.
8 CFR Part 214
Administrative practice and procedure, Aliens, Cultural exchange
programs, Employment, Foreign officials, Health professions, Reporting
and recordkeeping requirements, Students.
8 CFR Part 245
Aliens, Immigration, Reporting and recordkeeping requirements.
8 CFR Part 274a
Administrative practice and procedure, Aliens, Employment,
Penalties, Reporting and recordkeeping requirements.
Accordingly, DHS proposes to amend chapter I of title 8 of the Code
of Federal Regulations as follows:
[[Page 81939]]
PART 204--IMMIGRANT PETITIONS
0
1. The authority citation for part 204 is revised to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1184,
1186a, 1255, 1324a, 1641; 8 CFR part 2.
0
2. Section 204.5 is amended by:
0
a. Revising paragraph (d);
0
b. Revising paragraph (e);
0
c. Revising paragraph (n)(3);
0
d. Adding paragraph (p).
The revisions and addition read as follows:
Sec. 204.5 Petitions for employment-based immigrants.
* * * * *
(d) Priority date. The priority date of any petition filed for
classification under section 203(b) of the Act which is accompanied by
an individual labor certification from the Department of Labor shall be
the date the labor certification application was accepted for
processing by any office of the Department of Labor. The priority date
of any petition filed for a classification under section 203(b) of the
Act which does not require a labor certification from the Department of
Labor shall be the date the completed, signed petition (including all
initial evidence and the correct fee) is properly filed with USCIS. The
priority date of any petition filed for classification under section
203(b) of the Act which is accompanied by an application for Schedule A
designation shall be the date the completed, signed petition (including
all initial evidence and the correct fee) is properly filed with USCIS.
The priority date of an alien who filed for classification as a special
immigrant under section 203(b)(4) of the Act prior to October 1, 1991,
and who is the beneficiary of an approved petition for special
immigrant status after October 1, 1991, shall be the date the alien
applied for an immigrant visa or adjustment of status.
(e) Retention of section 203(b)(1), (2), or (3) priority date. (1)
A petition approved on behalf of an alien under sections 203(b)(1),
(2), or (3) of the Act accords the alien the priority date of the
approved petition for any subsequently filed petition for any
classification under sections 203(b)(1), (2), or (3) of the Act for
which the alien may qualify. In the event that the alien is the
beneficiary of multiple approved petitions under sections 203(b)(1),
(2), or (3) of the Act, the alien shall be entitled to the earliest
priority date.
(2) The priority date of a petition may not be retained under
paragraph (e)(1) of this section if at any time USCIS revokes the
approval of the petition because of:
(i) Fraud, or a willful misrepresentation of a material fact;
(ii) Revocation by the Department of Labor of the approved
permanent labor certification that accompanied the petition;
(iii) Invalidation by USCIS or the Department of State of the
permanent labor certification that accompanied the petition; or
(iv) A determination by USCIS that petition approval was in error.
(3) A denied petition will not establish a priority date.
(4) A priority date is not transferable to another alien.
(5) A petition filed under section 204(a)(1)(F) of the Act for an
alien shall remain valid with respect to a new employment offer as
determined by USCIS under section 204(j) of the Act and 8 CFR 245.25.
An alien will continue to be afforded the priority date of such
petition, if the requirements of paragraph (e) of this section are met.
* * * * *
(n) * * *
(3) Validity of approved petitions. Unless approval is revoked
under section 203(g) or 205 of the Act, an employment-based petition is
valid indefinitely.
* * * * *
(p) Eligibility for employment authorization in compelling
circumstances--(1) Eligibility of principal alien. An individual who is
the principal beneficiary of an approved immigrant petition for
classification under sections 203(b)(1), 203(b)(2) or 203(b)(3) of the
Act may be eligible to receive employment authorization, upon
application, if:
(i) In the case of an initial request for employment authorization,
the individual is in E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status
at the time the application for employment authorization is filed;
(ii) An immigrant visa is not immediately available to the
principal beneficiary based on his or her priority date at the time the
application for employment authorization is filed; and
(iii) USCIS determines, as a matter of discretion, that the
principal beneficiary demonstrates compelling circumstances that
justify the issuance of employment authorization.
(2) Eligibility of spouses and children. The family members, as
described in section 203(d) of the Act, of a principal beneficiary, who
are in nonimmigrant status at the time the principal beneficiary
applies for employment authorization under paragraph (p)(1) of this
section, are eligible to apply for employment authorization provided
that the principal beneficiary has been granted employment
authorization under paragraph (p) of this section and such employment
authorization has not been terminated or revoked. Such family members
may apply for employment authorization concurrently with the principal
beneficiary, but cannot be granted employment authorization until the
principal beneficiary is so authorized. The validity period of
employment authorization granted to family members may not extend
beyond the validity period of employment authorization granted to the
principal beneficiary.
(3) Subject to paragraph (p)(5) of this section, an alien may be
eligible to receive renewal of employment authorization under paragraph
(p) of this section, upon application, if:
(i) He or she is the principal beneficiary of an approved immigrant
petition for classification under sections 203(b)(1), 203(b)(2) or
203(b)(3) of the Act and either:
(A) USCIS determines, as a matter of discretion, that the principal
beneficiary continues to demonstrate compelling circumstances that
justify the issuance of employment authorization, or
(B) The difference between the principal beneficiary's priority
date and the date upon which immigrant visas are authorized for
issuance for the principal beneficiary's preference category and
country of chargeability is 1 year or less according to the current
Department of State Visa Bulletin; or
(ii) Is a family member, as described under paragraph (p)(2) of
this section, of a principal beneficiary satisfying the requirements
under paragraph (p)(3)(i) of this section, except that the family
member need not be maintaining nonimmigrant status at the time the
principal beneficiary applies for renewal employment authorization
under paragraph (p) of this section.
(4) Application for employment authorization. To request employment
authorization, an eligible applicant described in paragraphs (p)(1) or
(2) of this section must file an application for employment
authorization, or a successor form, with USCIS, in accordance with 8
CFR 274a.13(a) and the form instructions, including evidence of
compelling circumstances. Such applicant is subject to the collection
of his or her biometric information and the payment of any biometric
services fee as provided in the form instructions. Employment
authorization under this paragraph may be granted solely in 1-year
increments.
(5) Ineligibility for employment authorization. An alien is not
eligible
[[Page 81940]]
for employment authorization, including renewal of employment
authorization, under this paragraph in the following circumstances:
(i) The individual has been convicted of any felony or two or more
misdemeanors; or
(ii) The principal beneficiary's priority date is more than 1 year
beyond the date immigrant visas were authorized for issuance for the
principal beneficiary's preference category and country of
chargeability according to the Department of State Visa Bulletin
current at the time the application for employment authorization, or
successor form, is filed.
PART 205--REVOCATION OF APPROVAL OF PETITIONS
0
3. The authority citation for part 205 is revised to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1155, 1182,
1324a, and 1186a.
0
4. Section 205.1 is amended by revising paragraphs (a)(3)(iii)(C) and
(D) to read as follows:
Sec. 205.1 Automatic revocation.
(a) * * *
(3) * * *
(iii) * * *
(C) In employment-based preference cases, upon written notice of
withdrawal filed by the petitioner to any officer of USCIS who is
authorized to grant or deny petitions, where the withdrawal is filed
less than 180 days after approval of the employment-based preference
petition, provided that the revocation of a petition's approval under
this clause will not, by itself, impact a beneficiary's ability to
retain his or her priority date under 8 CFR 204.5(e). A petition that
is withdrawn 180 days or more after approval remains approved unless
its approval is revoked on other grounds. If an employment-based
petition on behalf of an alien is withdrawn, the job offer of the
petitioning employer is rescinded and the alien must obtain a new
employment-based preference petition on his or her behalf in order to
seek adjustment of status or issuance of an immigrant visa as an
employment-based immigrant, unless eligible for adjustment of status
under section 204(j) of the Act and in accordance with 8 CFR 245.25.
(D) Upon termination of the petitioning employer's business less
than 180 days after petition approval in an employment-based preference
case under section 203(b)(1)(B), 203(b)(1)(C), 203(b)(2), or 203(b)(3)
of the Act, provided that the revocation of a petition's approval under
this clause will not, by itself, impact a beneficiary's ability to
retain his or her priority date under 8 CFR 204.5(e). If a petitioning
employer's business terminates 180 days or more after approval, the
petition remains approved unless its approval is revoked on other
grounds. If a petitioning employer's business terminates, the job offer
of the petitioning employer is rescinded and the beneficiary must
obtain a new employment-based preference petition on his or her behalf
in order to seek adjustment of status or issuance of an immigrant visa
as an employment-based immigrant, unless eligible for adjustment of
status under section 204(j) of the Act and in accordance with 8 CFR
245.25.
* * * * *
PART 214--NONIMMIGRANT CLASSES
0
5. The authority citation for part 214 continues to read as follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187,
1221, 1281, 1282, 1301-1305 and 1372; sec. 643, Pub. L. 104-208, 110
Stat. 3009-708; Pub. L. 105-277, 112 Stat. 2681-641; Pub. L. 106-
313, 114 Stat. 1251-1255; Pub. L. 106-386, 114 Stat. 1477-1480;
section 141 of the Compacts of Free Association with the Federated
States of Micronesia and the Republic of the Marshall Islands, and
with the Government of Palau, 48 U.S.C. 1901 note, and 1931 note,
respectively; 48 U.S.C. 1806; 8 CFR part 2.
0
6. Section 214.1 is amended by adding a new paragraph (l) to read as
follows:
Sec. 214.1 Requirements for admission, extension, and maintenance of
status.
* * * * *
(l) Period of stay. (1) An alien admissible in E-1, E-2, E-3, H-1B,
L-1, or TN classification and his or her dependents may be admitted to
the United States for the validity period of the petition, or for a
validity period otherwise authorized for the E-1, E-2, E-3, and TN
classifications, plus an additional period of up to 10 days before the
validity period begins and a 10-day period following the expiration of
the validity period to prepare for departure from the United States or
to seek an extension or change of status based on a subsequent offer of
employment. Unless authorized under 8 CFR 274a.12, the alien may not
work except during the validity period.
(2) An alien admitted or otherwise provided status in E-1, E-2, E-
3, H-1B, H-1B1, L-1, or TN classification and his or her dependents
shall not be considered to have failed to maintain nonimmigrant status
solely on the basis of the cessation of the employment on which the
alien's classification was based for a one-time period during any
authorized validity period. Such one-time period shall last up to 60
days or until the end of the authorized validity period, whichever is
shorter.
(3) An alien in any authorized period described in paragraph (l) of
this section may apply for and be granted an extension of stay under
paragraph (c)(4) of this section or change of status under 8 CFR 248.1,
if otherwise eligible. DHS may eliminate or shorten the 60-day period
described in paragraph (l)(2) of this section as a matter of discretion
and, unless otherwise authorized under 8 CFR 274a.12, the alien may not
work during such period.
0
7. Section 214.2 is amended by:
0
a. Adding new paragraphs (h)(2)(i)(H), (h)(8)(ii)(F), (h)(13)(iii)(C)
through (E) and (h)(20);
0
b. Revising paragraphs (h)(4)(v)(C), (h)(13)(i)(A), and
(h)(19)(iii)(B); and
0
c. Removing the fifth sentence from paragraph (h)(9)(iv).
The revisions and additions read as follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(h) * * *
(2) * * *
(i) * * *
(H) H-1B portability. An eligible H-1B nonimmigrant is authorized
to start concurrent or new employment under section 214(n) of the Act
upon the filing, in accordance with 8 CFR 103.2(a), of a non-frivolous
H-1B petition on behalf of such alien, or as of the requested start
date, whichever is later.
(1) Eligible H-1B nonimmigrant. For H-1B portability purposes, an
eligible H-1B nonimmigrant is defined as an alien:
(i) Who has been lawfully admitted into the United States;
(ii) On whose behalf a non-frivolous H-1B petition for new
employment has been filed, including a petition for new employment with
the same employer, with a request to amend or extend the H-1B
nonimmigrant's stay, before the H-1B nonimmigrant's period of stay
authorized by the Secretary of Homeland Security expires; and
(iii) Who has not been employed without authorization in the United
States from the time of last admission through the filing of the
petition for new employment.
(2) Length of employment. Employment authorized under paragraph
(h)(2)(i)(H) of this section automatically ceases upon the adjudication
of the H-1B petition described in paragraph (h)(2)(i)(H)(1)(ii) of this
section.
[[Page 81941]]
(3) Successive H-1B portability petitions. (i) An alien maintaining
authorization for employment under paragraph (h)(2)(i)(H) of this
section, whose status, as indicated on the Arrival-Departure Record
(Form I-94), has expired, shall be considered to be in a period of stay
authorized by the Secretary of Homeland Security for purposes of
paragraph (h)(2)(i)(H)(ii) of this section. If otherwise eligible under
paragraph (h)(2)(i)(H) of this section, such alien may begin working in
a subsequent position upon the filing of another non-frivolous H-1B
petition or from the requested start date, whichever is later,
notwithstanding that the previous H-1B petition upon which employment
is authorized under paragraph (h)(2)(i)(H) of this section remains
pending and regardless of whether the validity period of an approved H-
1B petition filed on the alien's behalf expired during such pendency.
(ii) A request to amend the petition or for an extension of stay in
any successive H-1B portability petition cannot be approved if a
request to amend the petition or for an extension of stay in any
preceding H-1B portability petition in the succession is denied, unless
the beneficiary's previously approved period of H-1B status remains
valid.
(iii) Denial of a successive portability petition does not affect
the ability of the H-1B beneficiary to continue or resume working in
accordance with the terms of an H-1B petition previously approved on
behalf of the beneficiary if that petition approval remains valid and
the beneficiary has maintained H-1B status or been in a period of
authorized stay and has not been employed in the United States without
authorization.
* * * * *
(4) * * *
(v) * * *
(C) Duties without licensure. (1) In certain occupations which
generally require licensure, a State may allow an individual without
licensure to fully practice the occupation under the supervision of
licensed senior or supervisory personnel in that occupation. In such
cases, USCIS shall examine the nature of the duties and the level at
which they are performed, as well as evidence provided by the
petitioner as to the identity, physical location, and credentials of
the individual(s) who will supervise the alien. If the facts
demonstrate that the alien under supervision will fully perform the
duties of the occupation, H classification may be granted.
(2) An H-1B petition filed on behalf of an alien who does not have
a valid State or local license, where a license is otherwise required
to fully perform the duties in that occupation, may be approved for a
period of up to 1 year if:
(i) The license would otherwise be issued provided the alien was in
possession of a valid social security number or was authorized for
employment in the United States, and
(ii) The petitioner demonstrates, through evidence from the State
or local licensing authority, that the only obstacle to the issuance of
licensure is the lack of a social security number, a lack of employment
authorization, or both. The petitioner must demonstrate that the alien
is fully qualified to receive the State or local license in all other
respects, meaning that all educational, training, experience, and other
requirements have been met. The alien must have filed an application
for the license in accordance with applicable State or local rules and/
or procedures, provided that State or local rules and/or procedures do
not prohibit the alien from filing the license application without
provision of a social security number or proof of employment
authorization.
(3) An H-1B petition on behalf of an alien who has been previously
accorded H-1B classification under paragraph (h)(4)(v)(C)(2) of this
section may not be approved unless the petitioner demonstrates that the
alien has obtained the required license, is seeking to employ the alien
in a position requiring a different license, or the alien will be
employed in that occupation in a different location which does not
require a state or local license to fully perform the duties of the
occupation.
* * * * *
(8) * * *
(ii) * * *
(F) Cap-exemptions under sections 214(g)(5)(A) and (B) of the Act.
An alien is not subject to the numerical limitations identified in
section 214(g)(1)(A) of the Act if the alien qualifies for an exemption
under section 214(g)(5) of the Act. For purposes of section
214(g)(5)(A) and (B) of the Act:
(1) ``Institution of higher education'' has the same definition as
described at section 101(a) of the Higher Education Act of 1965 (20
U.S.C. 1001(a)).
(2) A nonprofit entity shall be considered to be related to or
affiliated with an institution of higher education if:
(i) The nonprofit entity is connected to or associated with an
institution of higher education through shared ownership or control by
the same board or federation;
(ii) The nonprofit entity is operated by an institution of higher
education;
(iii) The nonprofit entity is attached to an institution of higher
education as a member, branch, cooperative, or subsidiary; or
(iv) The nonprofit entity has, absent shared ownership or control,
entered into a formal written affiliation agreement with an institution
of higher education that establishes an active working relationship
between the nonprofit entity and the institution of higher education
for the purposes of research and/or education, and a primary purpose of
the nonprofit entity is to directly contribute to the research or
education mission of the institution of higher education.
(3) An entity is considered a ``nonprofit entity'' if it meets the
definition described at paragraph (h)(19)(iv) of this section.
``Nonprofit research organization'' and ``governmental research
organization'' have the same definitions as described at paragraph
(h)(19)(iii)(C) of this section.
(4) An H-1B beneficiary who is not directly employed by a
qualifying institution, organization or entity identified in sections
214(g)(5)(A) or (B) of the Act shall qualify for an exemption under
such section if the H-1B beneficiary will spend the majority of his or
her work time performing job duties at a qualifying institution,
organization or entity and those job duties directly and predominately
further the essential purpose, mission, objectives or functions of the
qualifying institution, organization or entity, namely, either higher
education, nonprofit research or government research. The burden is on
the H-1B petitioner to establish that there is a nexus between the
duties to be performed by the H-1B beneficiary and the essential
purpose, mission, objectives or functions of the qualifying
institution, organization or entity.
(5) If cap-exempt employment ceases, and if the alien is not the
beneficiary of a new cap-exempt petition, then the alien will be
subject to the cap if not previously counted within the 6-year period
of authorized admission to which the cap-exempt employment applied. If
cap-exempt employment converts to cap-subject employment subject to the
numerical limitations in section 214(g)(1)(A) of the Act, USCIS may
revoke the petition authorizing such employment consistent with
paragraph (h)(11)(iii) of this section.
(6) Concurrent H-1B employment in a cap-subject position of an
alien that qualifies for an exemption under section 214(g)(5)(A) or (B)
of the Act shall not subject the alien to the numerical limitations in
section 214(g)(1)(A) of the
[[Page 81942]]
Act. When petitioning for concurrent cap-subject H-1B employment, the
petitioner must demonstrate that the H-1B beneficiary is employed in
valid H-1B status under a cap exemption under section 214(g)(5)(A) or
(B) of the Act, the beneficiary's employment with the cap exempt
employer is expected to continue after the new cap-subject petition is
approved, and the beneficiary can reasonably and concurrently perform
the work described in each employer's respective positions.
(i) Validity of a petition for concurrent cap-subject H-1B
employment approved under paragraph (h)(8)(ii)(F)(6) of this section
cannot extend beyond the period of validity specified for the cap-
exempt H-1B employment.
(ii) If H-1B employment subject to a cap exemption under section
214(g)(5)(A) or (B) of the Act is terminated by a petitioner, or
otherwise ends before the end of the validity period listed on the
approved petition filed on the alien's behalf, the alien who is
concurrently employed in a cap-subject position becomes subject to the
numerical limitations in section 214(g)(1)(A) of the Act, unless the
alien was previously counted with respect to the 6-year period of
authorized H-1B admission to which the petition applies or another
exemption applies. If such an alien becomes subject to the numerical
limitations in section 214(g)(1)(A) of the Act, USCIS may revoke the
cap-subject petition described in paragraph (h)(8)(ii)(F)(6) of this
section consistent with paragraph (h)(11)(iii) of this section.
* * * * *
(13) * * *
(i) * * *
(A) Except as set forth in 8 CFR 214.1(l) with respect to H-1B
beneficiaries and their dependents and paragraph (h)(5)(viii)(B) of
this section with respect to H-2A beneficiaries, a beneficiary shall be
admitted to the United States for the validity period of the petition,
plus a period of up to 10 days before the validity period begins and 10
days after the validity period ends. The beneficiary may not work
except during the validity period of the petition.
* * * * *
(iii) * * *
(C) Calculating the maximum H-1B Admission Period. Time spent
physically outside the United States exceeding 24 hours by an alien
during the validity of an H-1B petition that was approved on the
alien's behalf shall not be considered for purposes of calculating the
alien's total period of authorized admission under section 214(g)(4) of
the Act, regardless of whether such time is meaningfully interruptive
of the alien's stay in H-1B status and the reason for the alien's
absence. Accordingly, such time may be recaptured in a subsequent H-1B
petition on behalf of the alien, subject to the maximum period of
authorized H-1B admission described in section 214(g)(4) of the Act.
(1) It is the H-1B petitioner's burden to request and demonstrate
the specific amount of time for recapture on behalf of the beneficiary.
The beneficiary may provide appropriate evidence, such as copies of
passport stamps, Arrival-Departure Records (Form I-94), and/or airline
tickets, together with a chart, indicating the dates spent outside of
the United States, and referencing the relevant independent documentary
evidence, when seeking to recapture the alien's time spent outside the
United States. Based on the evidence provided, USCIS may grant all,
part, or none of the recapture period requested.
(2) If the beneficiary was previously counted toward the H-1B
numerical cap under section 214(g)(1) of the Act with respect to the 6-
year maximum period of H-1B admission from which recapture is sought,
the H-1B petition seeking to recapture a period of stay as an H-1B
nonimmigrant will not subject the beneficiary to the H-1B numerical
cap, notwithstanding whether the alien has been physically outside the
United States for 1 year or more and would be otherwise eligible for a
new period of admission under such section of the Act. An H-1B
petitioner may either seek such recapture on behalf of the alien or,
consistent with paragraph (h)(13)(iii) of this section, seek a new
period of admission on behalf of the alien under section 214(g)(1) of
the Act.
(D) Lengthy adjudication delay exemption from 214(g)(4) of the Act.
(1) An alien who is in H-1B status or has previously held H-1B status
is eligible for H-1B status beyond the 6-year limitation under section
214(g)(4) of the Act, if, prior to the 6-year limitation being reached,
at least 365 days have elapsed since:
(i) The filing of a labor certification with the Department of
Labor on the alien's behalf, if such certification is required for the
alien to obtain status under section 203(b) of the Act; or
(ii) The filing of an immigrant visa petition with USCIS on the
alien's behalf to accord classification under section 203(b) of the
Act.
(2) H-1B approvals under paragraph (h)(13)(iii)(D) of this section
may be granted in up to 1-year increments until either the approved
permanent labor certification expires or a final decision has been made
to:
(i) Deny the application for permanent labor certification, or, if
approved, to revoke or invalidate such approval;
(ii) Deny the immigrant visa petition, or, if approved, revoke such
approval;
(iii) Deny or approve the alien's application for an immigrant visa
or application to adjust status to lawful permanent residence; or
(iv) Administratively or otherwise close the application for
permanent labor certification, immigrant visa petition, or application
to adjust status.
(3) No final decision while appeal available or pending. A decision
to deny or revoke an application for labor certification, or to deny or
revoke the approval of an immigrant visa petition, will not be
considered final under paragraphs (h)(13)(iii)(D)(2)(i) or (ii) of this
section during the period authorized for filing an appeal of the
decision, or while an appeal is pending.
(4) Substitution of beneficiaries. An alien who has been replaced
by another alien, on or before July 16, 2007, as the beneficiary of an
approved permanent labor certification may not rely on that permanent
labor certification to establish eligibility for H-1B status based on
this lengthy adjudication delay exemption. Except for a substitution of
a beneficiary that occurred on or before July 16, 2007, an alien
establishing eligibility for this lengthy adjudication delay exemption
based on a pending or approved labor certification must be the named
beneficiary listed on the permanent labor certification.
(5) Advance filing. A petitioner may file an H-1B petition seeking
a lengthy adjudication delay exemption under paragraph (h)(13)(iii)(D)
of this section within 6 months of the requested H-1B start date. The
petition may be filed before 365 days have elapsed since the labor
certification application or immigrant visa petition was filed with the
Department of Labor or USCIS, respectively, provided that the
application for labor certification or immigrant visa petition must
have been filed at least 365 days prior to the last day of the alien's
authorized 6-year period of H-1B admission under section 214(g)(4) of
the Act. Such authorized 6-year period of H-1B status includes any
prior or concurrent request to recapture unused H-1B, L-1A, or L-1B
time spent outside of the United States. The petitioner may request any
time remaining to the beneficiary under the maximum period of admission
described at section 214(g)(4) of the Act along with the exemption
request, but in no case may the approved H-1B period
[[Page 81943]]
of validity exceed the limits specified by paragraph (h)(9)(iii) of
this section.
(6) Petitioners seeking exemption. The H-1B petitioner need not be
the employer that filed the application for labor certification or
immigrant visa petition that is used to qualify for this exemption.
Separate requests for lengthy adjudication delay exemptions under
paragraph (h)(13)(iii)(D) of this section may be based on separate,
eligible labor certification applications or immigrant visa petitions
on behalf of the same alien.
(7) Subsequent exemption approvals after the 7th year. Each
exemption granted under paragraph (h)(13)(iii)(D) of this section
affords the alien a new date at which the alien's maximum period of
admission expires. A petition for any subsequent extension under
paragraph (h)(13)(iii)(D) of this section must include evidence that a
qualifying labor certification or immigrant visa petition was filed at
least 365 days prior to the last day of the alien's authorized period
of H-1B admission. Such labor certification or immigrant visa petition
need not be the same as that used to qualify for the initial exemption
under paragraph (h)(13)(iii)(D) of this section.
(8) Aggregation of time not permitted. A petitioner may not
aggregate the number of days that have elapsed since the filing of one
labor certification or immigrant visa petition with the number of days
that have elapsed since the filing of another such application or
petition to meet the 365-day requirement.
(9) Exemption eligibility. Only a principal beneficiary of a non-
frivolous labor certification application or immigrant visa petition
filed on his or her behalf may be eligible under paragraph
(h)(13)(iii)(D) of this section for an exemption to the maximum period
of admission under section 214(g)(4) of the Act.
(10) Limits on future exemptions from the lengthy adjudication
delay. An immigrant visa petition under section 203(b) of the Act
cannot support a request for the lengthy adjudication delay exemption
under paragraph (h)(13)(iii)(D) of this section if the alien fails to
file an adjustment of status application or make an application for an
immigrant visa within 1 year of an immigrant visa becoming immediately
available. If the accrual of such 1-year period is interrupted by the
unavailability of an immigrant visa, a new 1-year period shall be
afforded when an immigrant visa again becomes immediately available.
USCIS may excuse a failure to file in its discretion if the alien
establishes that the failure to apply was due to circumstances beyond
his or her control. The limitations described in this paragraph apply
to any approved immigrant visa petition under section 203(b) of the
Act, including petitions withdrawn by the petitioner or those filed by
a petitioner whose business terminates 180 days after approval.
(E) Per-country limitation exemption from 214(g)(4) of the Act. An
alien who currently maintains or previously held H-1B status, who is
the beneficiary of an approved immigrant visa petition for
classification under sections 203(b)(1), (2), or (3) of the Act, and
who is eligible to be granted that immigrant status but for application
of the per country limitation, is eligible for H-1B status beyond the
6-year limitation under 214(g)(4) of the Act. The petitioner must
demonstrate such visa unavailability as of the date the H-1B petition
is filed with USCIS and the unavailability must exist at time of the
petition's adjudication.
(1) Validity periods. USCIS may grant validity periods of petitions
approved under this paragraph in increments of up to 3 years for as
long as the alien remains eligible for this exemption.
(2) H-1B approvals under (h)(13)(iii)(E) of this section may be
granted until a final decision has been made to:
(i) Revoke the approval of the immigrant visa petition; or
(ii) Approve or deny the alien's application for an immigrant visa
or application to adjust status to lawful permanent residence.
(3) Current H-1B status not required. An alien who is not in H-1B
status at the time the H-1B petition on his or her behalf is filed,
including an alien who is not in the United States, may seek an
exemption of the 6-year limitation under 214(g)(4) of the Act under
this clause, if otherwise eligible.
(4) Subsequent petitioners may seek exemptions. The H-1B petitioner
need not be the employer that filed the immigrant visa petition that is
used to qualify for this exemption. An H-1B petition may be approved
under paragraph (h)(13)(iii)(E) of this section with respect to any
approved immigrant visa petition, and a subsequent H-1B petition may be
approved with respect to a different approved immigrant visa petition
on behalf of the same alien.
(5) Advance filing. A petitioner may file an H-1B petition seeking
a per-country limitation exemption under paragraph (h)(13)(iii)(E) of
this section within 6 months of the requested H-1B start date. The
petitioner may request any time remaining to the beneficiary under the
maximum period of admission described at section 214(g)(4) of the Act
along with the exemption request, but in no case may the H-1B approval
period exceed the limits specified by paragraph (h)(9)(iii) of this
section.
(6) Exemption eligibility. Only the principal beneficiary of an
approved immigrant visa petition for classification under sections
203(b)(1), (2), or (3) of the Act may be eligible under paragraph
(h)(13)(iii)(E) of this section for an exemption to the maximum period
of admission under section 214(g)(4) of the Act.
* * * * *
(19) * * *
(iii) * * *
(B) An affiliated or related nonprofit entity. A nonprofit entity
shall be considered to be related to or affiliated with an institution
of higher education if:
(1) The nonprofit entity is connected to or associated with an
institution of higher education through shared ownership or control by
the same board or federation;
(2) The nonprofit entity is operated by an institution of higher
education; or
(3) The nonprofit entity is attached to an institution of higher
education as a member, branch, cooperative, or subsidiary.
(4) The nonprofit entity has, absent shared ownership or control,
entered into a formal written affiliation agreement with an institution
of higher education that establishes an active working relationship
between the nonprofit entity and the institution of higher education
for the purposes of research and/or education, and a primary purpose of
the nonprofit entity is to directly contribute to the research or
education mission of the institution of higher education.
* * * * *
(20) Retaliatory action claims. If credible documentary evidence is
provided in support of a petition seeking an extension of H-1B stay in
or change of status to another classification indicating that the
beneficiary faced retaliatory action from his or her employer based on
a report regarding a violation of the employer's labor certification
application obligations under section 212(n)(2)(C)(iv) of the Act,
USCIS may consider a loss or failure to maintain H-1B status by the
beneficiary related to such violation as due to, and commensurate with,
``extraordinary circumstances'' as defined by 8 CFR 214.1(c)(4) and 8
CFR 248.1(b).
* * * * *
[[Page 81944]]
PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR
PERMANENT RESIDENCE
0
8. The authority citation for part 245 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1255; Pub. L. 105-100,
section 202, 111 Stat. 2160, 2193; Pub. L. 105-277, section 902, 112
Stat. 2681; Pub. L. 110-229, tit. VII, 122 Stat. 754; 8 CFR part 2.
0
9. Revise Sec. 245.15(n)(2) to read as follows:
Sec. 245.15 Adjustment of status of certain Haitian Nationals under
the Haitian Refugee Immigrant Fairness Act of 1998 (HRIFA)
* * * * *
(n) * * *
(2) Adjudication and issuance. Employment authorization may not be
issued to an applicant for adjustment of status under section 902 of
HRIFA until the adjustment application has been pending for 180 days,
unless USCIS verifies that DHS records contain evidence that the
applicant meets the criteria set forth in section 902(b) or 902(d) of
HRIFA, and determines that there is no indication that the applicant is
clearly ineligible for adjustment of status under section 902 of HRIFA,
in which case USCIS may approve the application for employment
authorization, and issue the resulting document, immediately upon such
verification. If USCIS fails to adjudicate the application for
employment authorization upon the expiration of the 180-day waiting
period, or within 90 days of the filing of application for employment
authorization, whichever comes later, the applicant shall be eligible
for an employment authorization document. Nothing in this section shall
preclude an applicant for adjustment of status under HRIFA from being
granted an initial employment authorization or an extension of
employment authorization under any other provision of law or regulation
for which the applicant may be eligible.
* * * * *
0
10. Add Sec. 245.25 to read as follows:
Sec. 245.25 Adjustment of status of aliens with approved employment-
based immigrant visa petitions; validity of petition and offer of
employment.
(a) Validity of petition for continued eligibility for adjustment
of status. An alien who has a pending application to adjust status to
that of a lawful permanent resident based on an approved employment-
based immigrant visa petition filed under section 204(a)(1)(F) of the
Act on the applicant's behalf must have a valid offer of employment
based on a valid petition at the time the application to adjust status
is filed and at the time the alien's application to adjust status is
adjudicated, and the applicant must intend to accept such offer of
employment. Prior to a final administrative decision on an application
to adjust status, USCIS may require that the applicant demonstrate, or
the applicant may affirmatively demonstrate to USCIS, on a designated
form in accordance with the form instructions, or as otherwise
determined by USCIS, with any required supporting documentary evidence,
that:
(1) The employment offer by the petitioning employer is continuing;
or
(2) Under section 204(j) of the Act, the applicant has a new offer
of employment from the petitioning employer or a different U.S.
employer, or a new offer based on self-employment, in the same or a
similar occupational classification as the employment offer under the
qualifying petition, provided that:
(i) The alien's application to adjust status based on a qualifying
petition has been pending for 180 days or more; and
(ii) The approval of the qualifying petition has not been revoked.
In all cases, the applicant and his or her intended employer must
demonstrate the intention for the applicant to be employed under the
continuing or new employment offer (including self-employment)
described in paragraphs (a)(1) and (2) of this section, as applicable,
within a reasonable period upon the applicant's grant of lawful
permanent resident status.
(b) Evidence--(1) Continuing employment offer. Unless otherwise
specified on the form or form instructions, for purposes of paragraph
(a)(1) of this section, evidence of a continuing employment offer shall
be provided in the form of a written attestation, signed by such
employer, attesting that the employer continues to extend the original
offer of employment and intends that the applicant will commence the
employment described in the offer of employment within a reasonable
period upon adjustment of status.
(2) New employment offer. Unless otherwise specified by a form or
form instructions, for purposes of paragraph (a)(2) of this section,
evidence of a new offer of employment that is in the same or a similar
occupational classification as the employment offer under the approved
petition as required by section 204(j) of the Act must include:
(i) A written attestation signed by the new employer describing the
new employment offer, including its requirements and a description of
the duties in the new position, and stating that the employer intends
that the applicant will commence the employment described in the new
employment offer within a reasonable period upon adjustment of status;
(ii) An explanation from the new employer establishing that the new
employment offer and the employment offer under the approved petition
are in the same or similar occupational classification, which may
include material and credible information provided by another Federal
government agency, such as information from the Standard Occupational
Classification (SOC) system, or similar or successor system,
administered by the Department of Labor; and
(iii) A copy of the receipt notice issued by USCIS, or if
unavailable, secondary evidence showing that the alien's application to
adjust status based on such petition has been pending with USCIS for
180 days or more.
(3) Intention after grant of adjustment of status application.
Evidence that the applicant intends to commence the employment
described either in the continuing employment offer or, if pursuing an
offer of new employment in accordance with section 204(j) of the Act,
the new employment offer, within a reasonable period upon adjustment of
status, including a written attestation signed by the applicant.
(c) Definition of same or similar occupational classification. The
term ``same occupational classification'' means an occupation that
resembles in every relevant respect the occupation for which the
underlying employment-based immigrant visa petition was approved. The
term ``similar occupational classification'' means an occupation that
shares essential qualities or has a marked resemblance or likeness with
the occupation for which the underlying employment-based immigrant visa
petition was approved.
PART 274a--CONTROL OF EMPLOYMENT OF ALIENS
0
11. The authority citation for part 274a continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1324a; 48 U.S.C. 1806; 8 CFR
part 2.
0
12. Amend Sec. 274a.2 by revising paragraph (b)(1)(vii) to read as
follows:
Sec. 274a.2 Verification of identity and employment authorization.
* * * * *
(b) * * *
(1) * * *
(vii) If an individual's employment authorization expires, the
employer,
[[Page 81945]]
recruiter or referrer for a fee must reverify on the Form I-9 to
reflect that the individual is still authorized to work in the United
States; otherwise, the individual may no longer be employed, recruited,
or referred. Reverification on the Form I-9 must occur not later than
the date work authorization expires. If an Employment Authorization
Document (Form I-766 or successor form) as described in Sec.
274a.13(d) was presented for completion of the Form I-9 in combination
with a Notice of Action (Form I-797C), or successor form, stating that
the original Employment Authorization Document has been automatically
extended for up to 180 days, reverification applies upon the expiration
of the automatically extended validity period under Sec. 274a.13(d)
and not upon the expiration date indicated on the face of the alien's
Employment Authorization Document. In order to reverify on the Form I-
9, the employee or referred individual must present a document that
either shows continuing employment eligibility or is a new grant of
work authorization. The employer or the recruiter or referrer for a fee
must review this document, and if it appears to be genuine and relate
to the individual, reverify by noting the document's identification
number and expiration date, if any, on the Form I-9 and signing the
attestation by a handwritten signature or electronic signature in
accordance with paragraph (i) of this section.
* * * * *
0
13. Amend Sec. 274a.12 by:
0
a. In paragraph (b)(9), removing ``;'' at the end and adding in its
place ``.'', and adding a new sentence to the end of the paragraph;
0
b. Adding and reserving new paragraphs (c)(27) to (c)(34); and
0
c. Adding new paragraphs (c)(35) and (c)(36).
The additions read as follows:
Sec. 274a.12 Classes of aliens authorized to accept employment.
* * * * *
(b) * * *
(9) * * * In the case of a nonimmigrant with H-1B status,
employment authorization will automatically continue upon the filing of
a qualifying petition under 8 CFR 214.2(h)(2)(i)(H) until such petition
is adjudicated, in accordance with section 214(n) of the Act and 8 CFR
214.2(h)(2)(i)(H);
* * * * *
(c) * * *
(35) An alien who is the principal beneficiary of a valid immigrant
petition under section 203(b)(1), 203(b)(2) or 203(b)(3) of the Act
described as eligible for employment authorization in 8 CFR 204.5(p).
(36) A spouse or child of a principal beneficiary of a valid
immigrant petition under section 203(b)(1), 203(b)(2) or 203(b)(3) of
the Act described as eligible for employment authorization in 8 CFR
204.5(p).
* * * * *
0
14. Amend Sec. 274a.13 by:
0
a. Revising the paragraph (a) introductory text;
0
b. Removing the first sentence of paragraph (a)(1); and
0
c. Revising paragraph (d).
The revisions read as follows:
Sec. 274a.13 Application for employment authorization.
(a) Application. An alien requesting employment authorization or an
Employment Authorization Document (Form I-766 or successor form), or
both, may be required to apply on a form designated by USCIS with any
prescribed fee(s) in accordance with the form instructions. An alien
may file such request concurrently with a related benefit request that,
if granted, would form the basis for eligibility for employment
authorization, only to the extent permitted by the form instructions.
* * * * *
(d) Renewal application--(1) Automatic extension of Employment
Authorization Documents. Except as otherwise provided in this chapter
or by law, notwithstanding 8 CFR 274a.14(a)(1)(i), the validity period
of an expiring Employment Authorization Document (Form I-766 or
successor form) and, for aliens who are not employment authorized
incident to status, also the attendant employment authorization, will
be automatically extended for an additional period not to exceed 180
days from the date of such document's and such employment
authorization's expiration if a request for renewal on a form
designated by USCIS is:
(i) Properly filed as provided by form instructions before the
expiration date shown on the face of the Employment Authorization
Document;
(ii) Based on the same employment authorization category as shown
on the face of the expiring Employment Authorization Document or is for
an individual approved for Temporary Protected Status whose EAD was
issued pursuant to 8 CFR 274a.12(c)(19); and
(iii) Based on a class of aliens whose eligibility to apply for
employment authorization continues notwithstanding expiration of the
Employment Authorization Document and is based on an employment
authorization category that does not require adjudication of an
underlying application or petition before adjudication of the renewal
application, including aliens described in 8 CFR 274a.12(a)(12) granted
Temporary Protected Status and pending applicants for Temporary
Protected Status who are issued an EAD under 8 CFR 274a.12(c)(19), as
may be announced on the USCIS Web site.
(2) Terms and conditions. Any extension authorized under this
paragraph shall be subject to any conditions and limitations noted in
the immediately preceding employment authorization.
(3) Termination. The period authorized by paragraph (d)(1) of this
section shall automatically terminate the earlier of up to 180 days
after the expiration date of the Employment Authorization Document
(Form I-766, or successor form), or upon issuance of notification of a
decision denying the renewal request. Nothing in paragraph (d) of this
section shall affect DHS's ability to otherwise terminate any
Employment Authorization Document or extension period for such document
and, as applicable, employment authorization, in accordance with 8 CFR
274a.14 or otherwise in this chapter, by written notice to the
applicant, or by notice to a class of aliens published in the Federal
Register.
(4) Unexpired Employment Authorization Documents. An Employment
Authorization Document (Form I-766, or successor form) that has expired
on its face is considered unexpired when combined with a Notice of
Action (Form I-797C), or successor form which demonstrates that the
requirements of paragraph (d)(1) of this section have been met.
Jeh Charles Johnson,
Secretary.
[FR Doc. 2015-32666 Filed 12-30-15; 8:45 am]
BILLING CODE 9111-97-P