Business Immigration Insights

After more than 15 years since the statutes were enacted, the U.S. Department of Homeland Security will finally publish its proposed regulations implementing the American Competitiveness in the Twenty‑First Century Act of 2000, known as “AC21,” and the American Competitiveness and Workforce Improvement Act of 1998, known as “ACWIA.”

According to an advance copy of the rule, to be published in the Federal Register tomorrow, December 31, 2015, and available here, the proposed changes not only will codify a plethora of USCIS policies and procedures that have evolved haphazardly through administrative memoranda and decisions in the decade and a half since the statutes were enacted, but also will make certain important “improvements” to those policies.  The 181-page rule sets out a broad range of proposals, affecting virtually all employment-based workers, both temporary and permanent, but particularly H-1B workers.

Key changes from current practice include:

• Grace Periods:  Creating an official, one-time grace period of up to 60 days (during authorized validity periods) to allow E, H-1B, L and TN workers who have lost their jobs to find new employment, and extending the current official pre- and post-status grace period of 10 days for H-1B workers to include H-4 dependents, as well as E, L and TN workers and their dependents
• EADs Without I-485 Applications:  Allowing E-3, H-1B, L-1 and O-1 workers who are the beneficiaries of I-140 approvals, but do not have pending I-485 applications, and their dependents to apply for renewable 1-year Employment Authorization Documents if:  (a) the worker’s priority date has not been current for more than 1 year; (b) the worker has not been convicted of any felony or of two or more misdemeanors; (c) the worker faces “compelling circumstances,” such as a geographical move due to serious illness or disability; employer retaliation; other substantial harm if required to return home; or significant disruption to their employers; and (d) for renewals, either the circumstances continue or the worker’s priority date is less than 1 year from the cut-off date in the current Visa Bulletin
• Automatic EAD Extensions:  Eliminating the current requirement that USCIS process EAD applications within 90 days or else issue interim EADs, while also:  (a) automatically extending EAD validity in certain categories (including adjustment applicants) for up to 180 days if a renewal is filed for the same category before the current EAD expires; and (b) allowing an expired EAD with a timely I‑765 receipt notice to serve as I-9 evidence
• 3-Year H-1B Extensions under AC21:  Continuing to grant 3-year H-1B extensions beyond the 6-year maximum for approved I-140 beneficiaries who are caught in the green card backlogs, but also allowing those 3-year extensions to continue until USCIS completes adjudication of the worker’s I-485 application
• 1-Year H-1B Extensions under AC21:  Continuing to grant additional 1-year H-1B extensions when a labor certification application or I-140 petition has been filed at least 365 days before the 6-year maximum stay is reached, but also applying the same rule to the new “maximum stay” date granted by the 1-year extension, as long as the H-1B worker files for adjustment or an immigrant visa within 1 year of the date a green card number becomes available
• Green Card Portability:  Continuing to allow workers to “port” pending green card processes to new employers if they are the beneficiaries of approved I-140 petitions, have I-485 adjustment applications pending for at least 180 days, and are porting to jobs in the “same or similar” occupation, but also defining the terms “same” and “similar”
• H-1B Cap-Exempt Employers:  Allowing any employer to claim an exemption from the annual H-1B cap if the majority of the worker’s duties are performed at a higher education institution, its affiliated/related nonprofit entity, or a nonprofit or governmental research organization, and adopting a more flexible definition of “affiliated or related nonprofit entity”
• H-1B Whistleblowers:  Establishing special eligibility for otherwise unavailable extensions and changes of status for H-1B “whistleblowers” who face retaliation for reporting an employer’s violation of an H-1B Labor Condition Application

The rule will not go into effect until a 60-day comment period has passed from the Federal Register publication date.