Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers

Federal RegisterDec 31, 2015

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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.

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:

USCISFRComment@dhs.gov.

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

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,

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

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),

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;

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).

• 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.

For more information, the

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.

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/.

“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.

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)

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:

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.

•

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

enterprise.” INA section 203(b)(5), 8 U.S.C. 1153(b)(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.

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).

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.

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).

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”).

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).

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).

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.

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

245.2(a)(2)(i)(B), 22 CFR 42.51 through 42.55.

INA sections 203, 221 and 222; 8 U.S.C. 1153, 1201 and 1202.

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.

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.

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.

See

INA section 101(a)(15)(H)(i)(

), 8 U.S.C. 1101(a)(15)(H)(i)(

). 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).

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).

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.

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”).

See

INA section 214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR 214.2(h)(4)(i)(B)(

). 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).

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).

In such case, the worker would be considered the beneficiary of the H-1B petition.

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.

See

8 CFR 214.2(h)(9)(iii)(A)(

). 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).

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)(

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).

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

) 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

“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).

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.

The L-1 nonimmigrant classification is described further below.

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”).

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).

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.

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)(

)(

) and 214(i), 8 U.S.C. 1101(a)(15)(H)(i)(

)(

) 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)(

)(

) and 212(t), 8 U.S.C. 1101(a)(15)(H)(i)(

)(

) 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

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,

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).

See

58 FR 69205 (Dec. 30, 1993); 58 FR 68526 (Dec. 28, 1993).

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.

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

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

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).

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.

See

USCIS Memorandum from Michael Aytes, “Guidance Regarding Eligibility for Exemption from the H-1B Cap Based on § 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”).

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”).

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.

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.

See

Aytes Memo June 2006, at 4.

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.

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

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.

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”).

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.

And there is no right to appeal the denial of an Application for Employment Authorization.

See

8 CFR 274a.13(c).

Approval of an application for employment authorization based on a pending asylum application is not discretionary.

See

8 CFR 274a.13(a)(1).

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.

The per capita share of GDP has also increased by almost 40 percent from $35,794 in 1990 to $50,010 in 2014.

And the number of entities doing business in the United States increased at least 24 percent during the same period.

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.

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.

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.

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/.

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.

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.

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.

DHS recognizes the

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.

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.

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

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)(

). 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)(

) and (h)(15)(ii)(B)(

). An H-1B petition filed under this provision may include any time remaining within the normal 6-year period of authorized H-1B stay

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)(

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).

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.

See

proposed 8 CFR 214.2(h)(13)(iii)(E)(

). 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).

The petitioner bears the burden of proving the individual's eligibility under this provision.

Aytes Memo Dec. 2006

supra

note 11 at 3-4.

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)(

). 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.

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.

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)(

). 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

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)(

). 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.

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.

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)(

) and (

). 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)(

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)(

). 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.

See

Aytes Memo Dec. 2005, at 6.

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)(

). 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.

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)(

). 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

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)(

). 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.

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)(

);

see also

8 CFR 214.2(h)(9)(iii)(A)(

) and (h)(15)(ii)(B).

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.

See

proposed 8 CFR 214.2(h)(13)(iii)(D)(

). 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)(

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)(

). 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)(

). 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

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.

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.

See

USCIS Adjudicator's Field Manual, Chapter 20.2(c).

See

Aytes Memo Dec. 2005, at 4;

Matter of Cardoso,

13 I. & N. Dec. 228, 230-31 (BIA 1969).

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.

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.

See

Aytes Memo Dec. 2005, at 4-5.

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

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.

The proposed regulatory provision accordingly defines “same occupational classification” as an occupation that resembles in every relevant respect

the occupation for which the underlying employment-based immigrant visa petition

was approved.

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.

Id.

See Taniguchi

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”).

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.

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”).

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”).

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.

Employment authorization under the pending H-1B portability petition continues until its adjudication.

Id.

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.

Id.

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.

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.

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.

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)(

). 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.

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

she spent outside of the United States during the validity period of the H-1B petition.

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.

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.

See

Aytes Memo Oct. 2005.

Id.

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.

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.

See

proposed 8 CFR 214.2(h)(13)(iii)(C)(

). 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.

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.

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)(

). 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.

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.

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.

Aytes Memo June 2006, at 2-3 and note 2.

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)(

). 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

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.

See

proposed 8 CFR 214.2(h)(8)(ii)(F)(

). 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)(

). 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).

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)(

). 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)(

)(

) 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)(

)(

) and (h)(19)(iii)(B)(

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)(

). 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.

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.

DHS now proposes to incorporate this interpretation into its H-1B regulations.

See

proposed 8 CFR 214.2(h)(8)(ii)(F)(

). 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.

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).

Neufeld Memo May 2008, at 7-8.

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)(

) and (

). 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

filed for the H-1B nonimmigrant worker if no cap numbers are available, and

may revoke the approval of a petition for concurrent employment of the H-1B nonimmigrant worker at a cap-subject employer.

Id.

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.

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.

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.

See

Neufeld Memo May 2008, at 8.

Id.

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

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