The Department of Homeland Security has proposed long-awaited regulations that implement the American Competitiveness in the 21st Century Act (AC21) and introduce other reforms to employment-based immigrant and nonimmigrant visa programs. The proposed regulation will be published in the Federal Register Dec. 31, after which DHS will accept comments from the public for a period of 60 days.

Background

AC21 was signed into law in 2000. Until now, the government did not issue regulations to implement the law and instead released informal guidance over the years.

Key provisions of AC21 include:

  • Institutions of higher education, nonprofit organizations, and governmental entities, as well as H-1B nonimmigrants who have been counted in the last six years, are exempt from the annual H-1B cap. (AC21, §103)
  • H-1B nonimmigrants are allowed to begin working for a new employer upon the employer’s filing of a valid H-1B petition. (AC21, §105)
  • H-1B nonimmigrants whose employers have filed a labor certification or Form I-140, Immigrant Petition for Alien Worker, are permitted to obtain extensions of status beyond the allowed six-year period, if 365 or more days have passed since the filing of the I-140 petition or labor certification or the I-140 is approved. (AC21, §106)
  • H-1B nonimmigrants whose I-485, Application to Register Permanent Residence or Adjust Status, has been pending for 180 days or more may accept a new job in the same or a similar occupational classification as the job in the original I-140 petition without invalidating the underlying petition or labor certification. (AC21, §106)

Proposed Regulation

The proposed regulation released today codifies much of the previous guidance issued by U.S. Citizenship and Immigration Services (USCIS) and also makes significant policy changes that will affect foreign workers present in the U.S. on nonimmigrant visas or seeking to obtain employment-based green cards.

The proposed regulation contains the following reforms:

  • An I-140 petition that has been approved for 180 days or more would no longer be automatically revoked due only to the petitioning employer’s withdrawal or the termination of the petitioner’s business. However, even though the I-140 petition remains valid, to qualify for adjustment of status an individual would need a new immigrant visa petition filed on his or her behalf or a new job offer.
  • Employees in E-1, E-2, E-3, H-1B, H-1B1, L-1, or TN nonimmigrant status would have a one-time grace period of 60 days to seek new employment when their employment terminates during their authorized period of stay. The proposal also extends the 10-day grace periods currently available to H-1B workers to other nonimmigrant classifications.
  • Individuals in E-3, H-1B, H-1B1, L-1, or O-1 status who are beneficiaries of approved employment-based immigrant visa petitions would become eligible to apply for an Employment Authorization Document (EAD) if they are unable to obtain an immigrant visa due to numerical limits and face compelling circumstances. The proposed rule does not put forth a concrete definition of “compelling circumstances,” but provides examples, including serious illness and disabilities, employer retaliation, other substantial harm to the applicant, and significant disruption to the employer.
  • Under the proposal, it would be possible for certain individuals to obtain automatic EAD extensions for up to 180 days if they have timely applied to renew the EAD and maintain the same basis for employment authorization, which does not require adjudication of an underlying application. However, DHS would eliminate the current regulation requiring adjudication of EAD applications within 90 days and authorizing issuance of interim EADs for applications remaining pending beyond 90 days.

What employers should know

The provisions contained in the proposed regulation are not yet in effect, and any policy changes will not become effective until the regulation is finalized. USCIS is soliciting feedback on the proposed rule for a 60-day period and will accept comments from the public until midnight on Feb. 29, 2016.

If finalized, the regulation would be a significant development and would have far-reaching implications for foreign workers in the U.S. on nonimmigrant visas. BAL is carefully reviewing the proposed regulation and will provide detailed analysis in the coming weeks.

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