Nov18 2016-27540

82398 Federal Register / Vol. 81, No.
223 / Friday, November 18, 2016 / Rules and Regulations
DEPARTMENT OF HOMELAND Table of Contents iii. Changing the Scope of Proposed

SECURITY Employment Authorization
I. Abbreviations iv. Illustrations of Compelling
II. Executive Summary Circumstances
8 CFR Parts 204, 205, 214, 245 and A. Purpose and Summary of the Regulatory
274a v. Nonimmigrant and Immigrant
Action Classifications of Individuals Eligible To
[CIS No. 257115; DHS Docket No. USCIS 1. Clarifications and Policy Improvements Request Employment Authorization
20150008] 2. Summary of Changes From the Notice of Based on Compelling Circumstances
Proposed Rulemaking vi. Application Timeframes for Compelling
RIN 1615AC05 B. Legal Authority Circumstances EADs
C. Costs and Benefits vii. EAD Validity Period
Retention of EB1, EB2, and EB3 III. Background viii. Visa Bulletin Dates
Immigrant Workers and Program A. ACWIA and AC21 ix. Renewals of Employment Authorization
Improvements Affecting High-Skilled 1. The American Competitiveness and Granted Pursuant to Compelling
Nonimmigrant Workers Workforce Improvement Act of 1998 Circumstances
2. The American Competitiveness in the x. Automatically Granting Advance Parole
AGENCY: U.S. Citizenship and Twenty-first Century Act of 2000 to Individuals Who Have Compelling
Immigration Services, DHS. i. AC21 Provisions Relating to Circumstances EADs
ACTION: Final rule. Employment-based Immigrant Visas xi. Employment Authorization Parity for
ii. AC21 Provisions Seeking To Improve Legal and Undocumented Workers,
SUMMARY: The Department of Homeland the H1B Nonimmigrant Worker Including Individuals Granted Deferred
Security (DHS) is amending its Classification
Action for Childhood Arrivals (DACA)
regulations related to certain a. Exemptions From the H1B Numerical
G. Nonimmigrant Grace Periods
employment-based immigrant and Cap
1. Description of Final Rule and Changes
b. Application of the H1B Numerical Cap
nonimmigrant visa programs. From NPRM
to Persons Previously Counted
Specifically, the final rule provides 2. Public Comments and Responses
c. H1B Portability
various benefits to participants in those i. Length of the 10-Day Grace Periods
B. Processing Applications for
programs, including the following: ii. Eligibility for 10-Day Grace Periods
Employment Authorization Documents
improved processes and increased iii. Miscellaneous Comments on 10-day
C. The Increasing Challenges Caused by
Grace Periods
certainty for U.S. employers seeking to Immigrant Visa Backlogs
iv. Length of the 60-Day Grace Period
sponsor and retain immigrant and IV. Discussion of Comments
v. Frequency of the 60-Day Grace Period
nonimmigrant workers; greater stability A. Overview of the Comments
B. Authority of DHS To Administer and vi. Classifications Eligible for the 60-Day
and job flexibility for those workers; and Grace Period
Enforce Immigration Laws
increased transparency and consistency vii. Clarifying the Meaning of up to in
1. Description of DHSs Legal Authority
in the application of DHS policy related 2. Public Comments and Responses the 60-Day Grace Period
to affected classifications. Many of these C. Immigration Fraud and National viii. Employment Authorization During the
changes are primarily aimed at Security Concerns Grace Periods
improving the ability of U.S. employers 1. Description of Final Rule and Changes H. Job Portability for H1B Nonimmigrant
to hire and retain high-skilled workers From the NPRM Workers
2. Public Comments and Responses 1. Description of Final Rule and Changes
who are beneficiaries of approved
D. Petitions for Employment-Based From NPRM
employment-based immigrant visa 2. Public Comments and Responses
petitions and are waiting to become Immigrants and Priority Date Retention
1. Description of Final Rule and Changes i. H1B Status Requirement
lawful permanent residents, while ii. International Travel and Successive
From the NPRM
increasing the ability of those workers to 2. Public Comments and Responses Portability Petitions (Bridge Petitions)
seek promotions, accept lateral i. Establishing a Priority Date iii. Portability to New Employment Subject
positions with current employers, ii. Retaining a Priority Date to the Cap
change employers, or pursue other iii. Priority Date Not Retained if Approval I. H1B Licensing Requirements
employment options. Revoked for Fraud, Willful 1. Description of Final Rule and Changes
Misrepresentation, DOL Revocation, From NPRM
DATES: This final rule is effective
Invalidation by USCIS or DOS, Material 2. Public Comments and Responses
January 17, 2017. i. Duties Without LicensureExpand
Error, or Denied Petition
ADDRESSES: Comments and related iv. Beneficiary Standing To Challenge the Circumstances
materials received from the public, as Revocation of an Employment-Based ii. Unlicensed Employment Under
well as background documents Immigrant Visa Petitions Approval Supervision
mentioned in this preamble as being E. Continuing and Bona Fide Job Offer and iii. Duration of H1B Petition Approval
available in the docket, are part of Supplement J Form iv. Unrestricted Extendable Licenses
docket USCIS20150008. For access to 1. Description of Final Rule and Changes J. Employers Exempt from H1B Numerical
the online docket, go to http:// From NPRM Limitations and Qualifying for Fee
2. Public Comments and Responses Exemptions
www.regulations.gov and enter this 1. Description of Final Rule and Changes
i. Portability Under INA 204(j)
rulemakings eDocket number: USCIS ii. Concerns Raised Regarding Supplement From NPRM
20150008 in the Search box. J 2. Public Comments and Responses
FOR FURTHER INFORMATION CONTACT: iii. Miscellaneous Comments on i. Include Government Entities in the
Kathleen Angustia or Nikki Lomax- Supplement J Definition of Related or Affiliated
Larson, Adjudications Officers (Policy), F. Compelling Circumstances Employment ii. Clarify that a Nonprofit Entity Only
mstockstill on DSK3G9T082PROD with RULES6
Office of Policy and Strategy, U.S. Authorization Needs To Meet One of the Criteria in 8
Citizenship and Immigration Services, 1. Description of Final Rule and Changes CFR 214.2(h)(8)(ii)(F)(2) and 8 CFR
From NPRM 214.2(h)(19)(iii)(B)
Department of Homeland Security, 20
2. Public Comments and Responses iii. The Primary Purpose Requirement
Massachusetts Avenue NW., i. Support for Compelling Circumstances for Nonprofit Entities Seeking
Washington, DC 20529. The contact Employment Authorization Exemptions Based on Formal Written
telephone number is (202) 2728377. ii. Status of Individuals Who Are Granted Affiliation Agreements
SUPPLEMENTARY INFORMATION: a Compelling Circumstances EAD iv. Formal Written Affiliation Agreement
VerDate Sep<11>2014 22:22 Nov 17, 2016 Jkt 241001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\18NOR6.SGM 18NOR6
Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations 82399
v. Impose Additional Requirements To iii. Comments Suggesting Additional FY Fiscal Year

Qualify as an Institution of Higher Revisions HSA Homeland Security Act of 2002
Education P. Other Comments IIRIRA Illegal Immigration Reform and
vi. Impose Additional Requirements on the 1. Procedural Aspects of the Rulemaking Immigrant Responsibility Act of 1996
Nature of Employment at a Qualifying 2. Assertions That the Employment-Based ICE U.S. Immigration and Customs
Nonprofit Entity or Nonprofit Research Immigration System Enables Slavery and
Enforcement
Organization Servitude to Employers
vii. Expand Interpretation of Research 3. Limits on Employment-Based INA Immigration and Nationality Act
Organization Immigration by Country LCA Labor Condition Application
viii. Requirement that the H1B Worker 4. Guidance on National Interest Waivers LPR Lawful Permanent Resident
Perform a Majority of Duties at the Cap 5. The Revised Visa Bulletin System NOID Notice of Intent to Deny
Exempt Entity Q. Public Comments and Responses on NPRM Notice of Proposed Rulemaking
ix. Codify Existing USCIS Deference Policy Statutory and Regulatory Requirements RFE Request for Evidence
x. Create a Mechanism To Obtain a Pre- 1. Regulatory Impact Analysis RIA Regulatory Impact Analysis
Determination of Cap Exemption 2. General Economy SOC Standard Occupational Classification
xi. Allot H1B Visas Subject to the Cap on 3. Labor Market and Labor Force Impact, STEM Science, Technology, Engineering,
a Quarterly Basis Including Jobs, Wages, and Job
and Mathematics
xii. Request for Continuation of Cap- Portability
Subject Employment When Concurrent i. Effect of the Rule on the Availability of TPS Temporary Protected Status
Cap-Exempt H1B Employment Ends Jobs in the United States U.S.C. United States Code
xiii. Prohibit Cap-Exempt H1B Worker ii. Effect of the Rule on Job Portability for USCIS U.S. Citizenship and Immigration
From Concurrent Employment Foreign Workers Services
K. Exemptions to the Maximum Admission iii. Effect of the Rule on Wages
Period of H1B Nonimmigrants iv. Effect of Employment-Based II. Executive Summary
1. Description of Final Rule and Changes Immigration on Falling Income A. Purpose and Summary of the
From NPRM v. Effect of the Rule on Costs Incurred by
Employers Regulatory Action
2. Public Comments and Responses
i. Recapture of H1B Time 4. DHS Estimate of 155,000 Compelling
Circumstances Employment
DHS is amending its regulations
ii. AC21 106(a) and (b)Lengthy
Adjudication Delay Exemptions Authorization Applicants related to certain employment-based
iii. AC21 104(c)Per Country Limitations 5. Unfunded Mandates Reform Act immigrant and nonimmigrant visa
iv. Spousal Eligibility for H1B Extensions Violation programs. The final rule is intended to
Beyond Six Years under AC21 6. Review under the National benefit U.S. employers and foreign
L. Whistleblower Protections in the H1B Environmental Policy Act (NEPA) workers participating in these programs
Nonimmigrant Program V. Statutory and Regulatory Requirements by streamlining the processes for
1. Description of Final Rule and Changes A. Executive Orders 12866 and 13563 employer sponsorship of nonimmigrant
From NPRM (Regulatory Planning and Review)
B. Regulatory Flexibility Act
workers for lawful permanent resident
2. Public Comments and Responses (LPR) status, increasing job portability
M. Haitian Refugee Immigrant Fairness Act C. Unfunded Mandates Reform Act of 1995
of 1998 D. Small Business Regulatory Enforcement and otherwise providing stability and
1. Changes to DHS HRIFA regulations Fairness Act of 1996 flexibility for such workers, and
N. Application for Employment E. Executive Order 13132 (Federalism) providing additional transparency and
Authorization F. Executive Order 12988 (Civil Justice consistency in the application of DHS
1. Description of Final Rule and Changes Reform) policies and practices related to these
From NPRM G. Paperwork Reduction Act programs. These changes are primarily
2. Public Comments and Responses intended to better enable U.S.
I. Abbreviations
i. Adjudication Timeframes for Initial and employers to employ and retain high-
Renewal Applications of Employment AC21 American Competitiveness Act of the skilled workers who are beneficiaries of
Authorization 21st Century
ii. Earlier Filing for EAD Renewals ACWIA American Competitiveness and
employment-based immigrant visa
iii. Concurrent Filings Workforce Improvement Act of 1998 (Form I140) petitions, while increasing
iv. Potential Gaps in Employment APA Administrative Procedure Act the ability of these workers to further
Authorization CBP U.S. Customs and Border Protection their careers by accepting promotions,
v. Interim EADs CFR Code of Federal Regulations changing positions with current
vi. Automatic Extensions of EADs and DACA Deferred Action for Childhood employers, changing employers, and
Advance Parole Arrivals pursuing other employment
vii. H4 Nonimmigrant Spouses DHS Department of Homeland Security opportunities.
viii. F1 Nonimmigrant Students DOL Department of Labor
ix. Expanding Automatic Extensions to DOJ Department of Justice 1. Clarifications and Policy
Additional Categories DOS Department of State Improvements
x. State Drivers License Issues EAD Employment Authorization Document First, the final rule largely conforms
xi. Form I9 and Automatic Extensions of EB Employment-based immigrant visa DHS regulations to longstanding DHS
EADs category
xii. National Security and Fraud Concerns EB1 Employment-based first preference
policies and practices established in
xiii. Separate Rulemaking for the immigrant visa petition response to certain sections of the
Elimination of the EAD 90-Day EB2 Employment-based second preference American Competitiveness and
Processing Timeframe immigrant visa petition Workforce Improvement Act of 1998
xiv. Requests for Premium Processing EB3 Employment-based third preference (ACWIA), Public Law 105277, div. C,
O. Employment Authorization and immigrant visa petition tit. IV, 112 Stat. 2681, and the American
Reverification on Form I9 EB4 Employment-based fourth preference Competitiveness in the Twenty-first
1. Description of Final Rule and Changes immigrant visa petition Century Act of 2000 (AC21), Public Law
From NPRM EB5 Employment-based fifth preference 106313, 114 Stat. 1251, as amended by
2. Public Comments and Responses immigrant visa petition
i. Reverification FDNS Fraud Detection and National
the 21st Century Department of Justice
ii. Use of Form I9 To Change Employment Security Appropriations Authorization Act,
Authorization Categories FR Federal Register Public Law 107273, 116 Stat. 1758
82400 Federal Register / Vol. 81, No. 223 / Friday, November 18, 2016 / Rules and Regulations
(2002).1 Those sections were intended, numerical cap, including: (1) The ability to fulfill its responsibilities
among other things, to provide greater method for calculating when these related to U.S. employers and certain
flexibility and job portability to certain workers may access so-called remainder foreign workers. Specifically, the final
nonimmigrant workers, particularly time (i.e., time when they were rule provides the following:
those who have been sponsored for LPR physically outside the United States), Establishment of priority dates. To
status as employment-based immigrants, thus allowing them to use their full enhance clarity for the regulated
while enhancing opportunities for period of H1B admission; and (2) the community, the final rule provides that
innovation and expansion, maintaining method for determining which H1B a priority date is generally established
U.S. competitiveness, and protecting nonimmigrant workers are cap- based upon the filing of certain
U.S. workers. The final rule further exempt as a result of previously being applications or petitions. The new
clarifies and improves DHS policies and counted against the cap. regulatory language is consistent with
practices in this areapolicies and H1B cap exemptions. The final existing DHS practice in establishing
practices that have long been specified rule clarifies and improves the method priority dates for other Form I140
through a series of policy memoranda for determining which H1B petitions that do not require permanent
and precedent decisions of the U.S. nonimmigrant workers are exempt from labor certifications (labor
Citizenship and Immigration Services the H1B numerical cap due to their certifications)such as petitions filed
(USCIS) Administrative Appeals Office. employment at an institution of higher under the employment-based first
By clarifying such policies in regulation, education, a nonprofit entity related to preference immigrant visa (EB1)
DHS provides greater transparency and or affiliated with such an institution, or category.2 See final 8 CFR 204.5(d).3
certainty to affected employers and a governmental or nonprofit research
Retention of priority dates. To
workers, while increasing consistency organization, including a revision to the
definition of the term related or enhance job portability for workers with
among DHS adjudications. In addition, approved Form I140 petitions, the final
this final rule clarifies several affiliated nonprofit entity.
Protections for H1B rule explains the circumstances under
interpretive questions raised by AC21 which workers may retain priority dates
and ACWIA. whistleblowers. The final rule addresses
the ability of H1B nonimmigrant and effectively transfer those dates to
Specifically, the final rule clarifies new and subsequently approved Form
and improves policies and practices workers who are disclosing information
in aid of, or otherwise participating in, I140 petitions. Priority date retention
related to: will generally be available as long as the
H1B extensions of stay under investigations regarding alleged
violations of Labor Condition approval of the initial Form I140
AC21. The final rule addresses the petition was not revoked for fraud,
ability of H1B nonimmigrant workers Application (LCA) obligations in the H
1B program to provide documentary willful misrepresentation of a material
who are being sponsored for LPR status fact, the invalidation or revocation of a
(and their dependents in H4 evidence to USCIS to demonstrate that
their resulting failure to maintain H1B labor certification, or material error.
nonimmigrant status) to extend their This provision improves the ability of
nonimmigrant stay beyond the status was due to extraordinary
circumstances. certain workers to accept promotions,
otherwise applicable 6-year limit
pursuant to AC21. Form I140 petition validity. The change employers, or pursue other
final rule clarifies the circumstances employment opportunities without fear
INA 204(j) portability. The final rule
under which an approved Immigrant of losing their place in line for
addresses the ability of certain workers
Petition for Alien Worker (Form I140 immigrant visas. See final 8 CFR
who have pending applications for
petition) remains valid, even after the 204.5(e).
adjustment of status to change
employers or jobs without endangering petitioner withdraws the petition or the Retention of employment-based
the approved Form I140 petitions filed petitioners business terminates, immigrant visa petitions. To enhance
on their behalf. including for purposes of status job portability for certain workers with
H1B portability. The final rule extension applications filed on behalf of approved Form I140 petitions in the
addresses the ability of H1B the beneficiary, job portability of H1B EB1, second preference (EB2), and
nonimmigrant workers to change jobs or nonimmigrants, and job portability third preference (EB3) categories, but
employers, including: (1) Beginning under section 204(j) of the Immigration who are unable to obtain LPR status due
employment with new H1B employers and Nationality Act (INA), 8 U.S.C. to immigrant visa backlogs, the final
upon the filing of non-frivolous 1154(j). rule provides that Form I140 petitions
Second, this rule builds on the that have been approved for 180 days or
petitions for new H1B employment
provisions listed above by making more would no longer be subject to
(H1B portability petition); and (2)
changes consistent with the goals of automatic revocation based solely on
allowing H1B employers to file
AC21 and ACWIA to further provide withdrawal by the petitioner or the
successive H1B portability petitions
stability and flexibility in certain termination of the petitioners business.
(often referred to as bridge petitions)
immigrant and nonimmigrant visa See final 8 CFR 205.1(a)(3)(iii)(C) and
and clarifying how these petitions affect
categories. The amended provisions (D).
lawful status and work authorization.
improve the ability of certain foreign
Counting against the H1B annual
workers, particularly those who are 2 The EB1 preference category is for individuals
cap. The final rule clarifies the way in
successfully sponsored for LPR status by with extraordinary ability, outstanding professors
which H1B nonimmigrant workers are
their employers, to accept new and researchers, and multinational executives and
counted against the annual H1B managers.
employment opportunities, pursue
3 In this final rule, the word final before a

1 Except where changes to current policies and normal career progression, better reference to 8 CFR is used to refer to a provision
practices are noted in the preamble of this final establish their lives in the United States, promulgated through this final rule and the word
rule, these amendments capture the longstanding and contribute more fully to the U.S. proposed before 8 CFR is used to refer to a
policies and practices that have developed since economy. These changes also provide provision of the proposed rule. See Retention of EB
AC21 and ACWIA were enacted. DHS also notes 1, EB2, and EB3 Immigrant Workers and Program
that policies implementing AC21 and ACWIA
certainty for the regulated community Improvements Affecting High-Skilled
provisions, if not referenced, discussed, or changed and improve consistency across DHS Nonimmigrant Workers; Proposed Rule, 80 FR
through this rulemaking, remain in place. adjudications, thereby enhancing DHSs 81899 (Dec. 31, 2015).
Eligibility for employment community, the final regulations codify accordance with an applicable Federal
authorization in compelling current DHS policy regarding Register notice regarding procedures for
circumstances. To enhance stability and exceptions to the requirement that renewing TPS-related employment
job flexibility for certain high-skilled makes the approval of an H1B petition documentation) and remains pending;
nonimmigrant workers in the United contingent upon the beneficiarys and (3) the individuals eligibility for
States with approved Form I140 licensure where licensure is required to employment authorization continues
petitions who cannot obtain an fully perform the duties of the relevant beyond the expiration of the EAD and
immigrant visa due to statutory limits specialty occupation. The final rule an independent adjudication of the
on the number of immigrant visas that generally allows for the temporary underlying eligibility is not a
may be issued, the final rule allows approval of an H1B petition for an prerequisite to the extension of
certain beneficiaries in the United States otherwise eligible unlicensed worker, if employment authorization.
in E3, H1B, H1B1, L1, or O1 the petitioner can demonstrate that the Concurrently, DHS eliminates the
nonimmigrant status to apply for worker is unable for certain technical regulatory provisions that require
separate employment authorization for a reasons to obtain the required license adjudication of the Application for
limited period if there are compelling before obtaining H1B status. The final Employment Authorization (Form I765
circumstances that, in the discretion of rule also clarifies the types of evidence or EAD application) within 90 days of
DHS, justify the issuance of that would need to be submitted to filing and that authorize interim EADs
employment authorization. See final 8 support approval of an H1B petition on in cases where such adjudications are
CFR 204.5(p). behalf of an unlicensed worker who will not conducted within the 90-day
10-day nonimmigrant grace work in a state that allows the timeframe. These changes provide
periods. To promote stability and individual to be employed in the enhanced stability and certainty to
flexibility for certain high-skilled relevant occupation under the employment-authorized individuals and
nonimmigrant workers, the final rule supervision of licensed senior or their employers while reducing
provides two grace periods of up to 10 supervisory personnel. See final 8 CFR opportunities for fraud and protecting
days, consistent with those already 214.2(h)(4)(v)(C). the security related processes
available to individuals in some As noted above, these changes codify undertaken for each EAD application.
nonimmigrant classifications, to and improve USCIS policies concerning See final 8 CFR 247a.13(d).
individuals in the E1, E2, E3, L1, various employment-based immigrant
and TN classifications. The rule allows and nonimmigrant visa classifications, 2. Summary of Changes From the Notice
an initial grace period of up to 10 days including by making it easier to hire and of Proposed Rulemaking
prior to the start of an authorized retain nonimmigrant workers who have Following careful consideration of
validity period, which provides approved Form I140 petitions and public comments received, DHS has
nonimmigrants in the above giving such workers additional career made several modifications to the
classifications a reasonable amount of options as they wait for immigrant visas regulatory text proposed in the Notice of
time to enter the United States and to become available. These Proposed Rulemaking (NPRM)
prepare to begin employment in the improvements are increasingly published in the Federal Register on
country. The rule also allows a second important considering the lengthy waits December 31, 2015. See Retention of
grace period of up to 10 days after the and consistently growing demand for EB1, EB2, and EB3 Immigrant
end of an authorized validity period, immigrant visas. Workers and Program Improvements
which provides a reasonable amount of Finally, to provide additional stability Affecting High-Skilled Nonimmigrant
time for such nonimmigrants to depart and certainty to U.S. employers and Workers; Proposed Rule, 80 FR 81899.
the United States or take other actions individuals eligible for employment Those changes include the following:
to extend, change, or otherwise authorization in the United States, this Retaining a Priority Date. In the
maintain lawful status. See final 8 CFR final rule changes several DHS final rule, DHS is responding to public
214.1(l)(1). regulations governing the processing of comment by revising proposed 8 CFR
60-day nonimmigrant grace applications for employment 204.5(e)(2)(iv), a provision that
periods. To further enhance job authorization. First, to minimize the risk identifies when error related to the
portability, the final rule establishes a of any gaps in employment approval of an employment-based
grace period of up to 60 consecutive authorization, this final rule immigrant visa petition can lead to loss
days during each authorized validity automatically extends the validity of of a priority date. The term error is
period for individuals in the E1, E2, Employment Authorization Documents clarified to mean material error in
E3, H1B, H1B1, L1, O1 or TN (EADs or Forms I766) in certain final 8 CFR 204.5(e)(2)(iv), which now
classifications. This grace period allows circumstances based on the timely filing states that a priority date may not be
high-skilled workers in these of EAD renewal applications. retained if USCIS revokes the approval
classifications, including those whose Specifically, the rule automatically of the Form I140 petition because it
employment ceases prior to the end of extends the employment authorization determined that there was a material
the petition validity period, to more and validity of existing EADs issued to error with regard to the petitions
readily pursue new employment should certain employment-eligible individuals approval.
they be eligible for other employer- for up to 180 days from the date of Eligibility for employment
sponsored nonimmigrant classifications expiration, as long as: (1) A renewal authorization in compelling
or employment in the same application is filed based on the same circumstances. In the final rule, DHS is
classification with a new employer. The employment authorization category as responding to public comment by
grace period also allows U.S. employers the previously issued EAD (or the revising several aspects of proposed 8
to more easily facilitate changes in renewal application is for an individual CFR 204.5(p) governing requests for
employment for existing or newly approved for Temporary Protected EADs in compelling circumstances.
recruited nonimmigrant workers. See Status (TPS) whose EAD was issued First, DHS is revising proposed 8 CFR
final 8 CFR 214.1(l)(2). under 8 CFR 274a.12(c)(19)); (2) the 204.5(p)(1)(i), which discusses the
H1B licensing. To provide clarity renewal application is timely filed prior eligibility of principal beneficiaries of
and certainty to the regulated to the expiration of the EAD (or, in immigrant visa petitions to obtain EADs
in compelling circumstances. In the beneficiaries applications are granted Moreover, in 214.1(l)(2), DHS is
final rule, DHS provides clarification under paragraph (p)(3)(i) and remain adding the O1 classification to the list
that principal beneficiaries may be valid. of visa classifications for which USCIS
eligible to file applications for such Finally, DHS is making several will not consider an individual to have
EADs during the authorized periods of technical revisions for readability and failed to maintain nonimmigrant status
admission that immediately precede or clarity. for a period of up to 60 days or until the
follow the validity periods of their Automatic revocation. In the final end of the authorized validity period,
nonimmigrant classifications (i.e., rule, DHS is responding to public whichever is shorter, solely because of
grace periods). comment by editing proposed 8 CFR the cessation of the employment on
Second, DHS also is making several 205.1(a)(3)(iii)(C) and (D), which which the visa classification was based.
revisions to proposed 8 CFR 204.5(p)(3), provide the grounds for automatically In addition, DHS is clarifying that the
which addresses certain eligibility revoking Form I140 petitions. DHS is 60-day grace period must be used in a
requirements for principal beneficiaries revising these provisions to clarify that single period of consecutive days during
and family members seeking to renew a Form I140 petition will remain the relevant authorized validity period.
EADs issued in compelling approved if a request to withdraw it is DHS also is changing the phrase for a
circumstances. DHS clarifies in final received or the petitioner terminates its one-time period during any authorized
204.5(p)(3) that applicants seeking to business 180 days or more after either validity period, to read once during
extend such employment authorization the date of the petitions approval or the each authorized validity period to
must file a renewal Form I765 before date of filing of an associated clarify that the 60-day grace period may
the expiration of their current be provided to an individual only once
application for adjustment of status.4 In
employment authorization. DHS also per authorized validity period.
addition, DHS is removing the phrase,
streamlines and clarifies the regulatory However, an individual may be
provided that the revocation of a
text covering the two instances in which provided other such grace periods if he
petitions approval under this clause
applicants may be eligible to apply for or she receives a new authorized
will not, by itself, impact a beneficiarys
renewal. DHS clarifies that under final validity period in one of the eligible
ability to retain his or her priority date
204.5(p)(3)(i)(A), applicants may apply nonimmigrant classifications. In
under 8 CFR 204.5(e) in
for renewal if the principal beneficiary addition, DHS is making other technical
205.1(a)(3)(iii)(C) and (D) because that
continues to demonstrate compelling revisions to proposed 214.1(l)(1), (2)
phrase was redundant of text in 8 CFR
circumstances and an immigrant visa is and (3).
not authorized for issuance to the 204.5(e), which, as proposed and Duties without licensure. In the
principal beneficiary based on his or her retained in this final rule, already final rule, DHS is responding to public
priority date. DHS also clarifies that establishes the ability of the beneficiary comment by modifying proposed 8 CFR
under final 204.5(p)(3)(i)(B), a to retain his or her priority date if his 214.2(h)(4)(v)(C), which sets standards
principal beneficiary may apply for or her immigrant visa petition is for H1B adjudication absent the
renewal if his or her priority date is one revoked on any ground other than those beneficiarys full licensure. First, DHS is
year or less either before or after the enumerated in final 8 CFR revising proposed 8 CFR
relevant date in the Department of State 204.5(e)(2)(i)(iv). The deletion of the 214.2(h)(4)(v)(C)(1) to expand the
Visa Bulletin. In determining whether redundant text does not change the evidence USCIS will examine in cases
the difference between the principal substance of the provisions. where a state allows an individual
beneficiarys priority date and the date Period of stay. In the final rule, DHS without licensure to fully practice the
upon which immigrant visas are is responding to public comment by occupation under the supervision of
authorized for issuance is one year or revising proposed 8 CFR 214.1(l), which licensed senior or supervisory personnel
less, DHS will use the applicable Final concerns authorized grace periods that to include evidence that the petitioner
Action Date in the Visa Bulletin that may immediately precede and follow is complying with state requirements.
was in effect on the date the application periods of nonimmigrant petition Second, DHS is expanding the
for employment authorization is filed. validity and other authorized periods of language in 214.2(h)(4)(v)(C)(2) to
Third, DHS is removing a ground of stay. DHS is removing from proposed 8 account for other technical requirements
ineligibility that was proposed in CFR 214.1(l)(1) the phrase to prepare in state or local rules or procedures that
204.5(p)(5), as it was duplicative of for departure from the United States or may, like the lack of a Social Security
requirements for renewal under to seek an extension or change of status number or employment authorization,
204.5(p)(3)(i)(B), which authorizes based on a subsequent offer of pose obstacles to obtaining a license.
eligibility for renewals when the employment because it is Specifically, in 214.2(h)(4)(v)(C)(2)(i),
difference between the principal unnecessarily limiting and did not fully DHS is adding the phrase or met a
beneficiarys priority date and the date comport with how the existing 10-day technical requirement following the
upon which immigrant visas are grace period may be used by individuals references to the Social Security number
authorized for issuance to the principal in the H, O and P nonimmigrant visa and employment authorization. DHS is
beneficiary is 1 year or less according to classifications. DHS is adding the making similar conforming changes in
the Visa Bulletin in effect on the date phrase or otherwise provided status two places in 214.2(h)(4)(v)(C)(2)(ii).
the application for employment after an alien admissible in E1, E2, Third, in 214.2(h)(4)(v)(C)(2)(ii),
authorization is filed. E3, H1B, L1, or TN classification and which discusses the petitioners
Fourth, DHS is revising proposed his or her dependents may be admitted qualifications for a license, DHS is
204.5(p)(3)(ii) to clarify that family to the United States to clarify that the adding substantive in front of the
members may submit applications to 10-day grace period may be granted to word requirements, to allow
renew employment authorization these nonimmigrants at time of flexibility to account for various state
concurrently with renewal applications admission or upon approval of an specific requirements. DHS is adding
filed by the principal beneficiaries, or extension of stay or change of status. these clarifications to address other
while such applications are pending, analogous obstacles of which DHS is not
but family renewal applications cannot 4 Such petitions will remain approved unless specifically aware, which present
be approved unless the principal revoked on other grounds. similar situations where the beneficiary
is qualified for licensure, but may not that a nonprofit entity is related to or approvals after the 7th year; and
obtain the licensure because of a affiliated with an institution of higher 214.2(h)(13)(iii)(D)(10), which
technical requirement. education. describes limits on future exemptions
In addition, DHS is making technical In addition, DHS is defining the from the lengthy adjudication delay.
edits by replacing the use of the word phrase governmental research Per country and worldwide limits.
or with and in the first clause of 8 organization in 214.2(h)(19)(iii)(C) to In the final rule, DHS is responding to
CFR 214.2(h)(4)(v)(C)(2)(ii) to reflect that include state and local government public comment by revising proposed 8
the beneficiary must have filed an research entities, and not just federal CFR 214.2(h)(13)(iii)(E), which governs
application for the license in accordance government research entities, whose when a nonimmigrant may be eligible
with State and local rules and primary mission is the performance or for H1B status in 3-year increments
procedures. This does not change the promotion of basic research and/or beyond the 6-year limitation that
intended meaning of the proposed rule. applied research. This definition is otherwise applies. This provision
Finally, DHS is making a technical edit adopted for cap exemption purposes at addresses eligibility for an extension of
in the second clause by replacing the 8 CFR 214.2(h)(8)(ii)(F)(3). H1B status under section 104(c) of
use of and/or with or preceding Calculating the maximum H1B AC21. DHS is striking the phrase, the
procedures. admission period. In the final rule, DHS unavailability must exist at time of the
Definitions of non-profit entities is responding to public comment by petitions adjudication to reflect
related to or affiliated with an revising proposed 8 CFR longstanding DHS policy. By striking
institution of higher education and 214.2(h)(13)(iii)(C), which discusses this phrase, DHS is clarifying that if the
governmental research organizations. In how to calculate the time spent Visa Bulletin that was in effect on the
the final rule, DHS is responding to physically outside the United States date the H1B petition is filed shows
public comment by editing proposed 8 during the validity of an H1B petition that the individual was subject to a per
CFR 214.2(h)(8)(ii)(F) and (h)(19), which that will not count against an country or worldwide visa limitation,
define which entities are (1) nonprofit individuals maximum authorized DHS may grant the extension under
entities that are related to or affiliated period of stay in H1B status. DHS is section 104(c) of AC21, even if the
with institutions of higher education, amending the regulatory text to clarify immigrant visa is available when the
and (2) governmental research that there is no temporal limit on petition is adjudicated, so long as the
organizations for purposes of the H1B recapturing time. The amendment beneficiary is otherwise eligible.
visa program. H1B nonimmigrant makes clear that such time may be Retaliatory action claims. In the
workers who are employed at such recaptured in a subsequent H1B final rule, DHS is responding to public
entities are exempt from the annual petition on behalf of the foreign worker, comment by amending proposed 8 CFR
limitations on H1B visas. Such entities at any time before the alien uses the 214.2(h)(20), which discusses eligibility
are also exempt from paying certain fees full period of authorized H1B for extensions of stay in H1B status or
in the H1B program. admission described in section 214(g)(4) change of status to other nonimmigrant
At 214.2(h)(8)(ii)(F)(2), DHS is of the Act. DHS also is making a classifications by beneficiaries who
adding the phrase if it satisfies any one technical edit to 214.2(h)(13)(iii)(C)(1) faced retaliatory action from their
of the following conditions, to clarify to clarify which form may be used for employers. Additionally, DHS is making
that a petitioner only has to meet one of this provision. a minor technical change to this section,
the listed requirements. DHS is adding Lengthy adjudication delay correcting labor certification
the same clarifying language to 8 CFR exemption from section 214(g)(4) of the application to labor condition
214.2(h)(19)(iii)(B). In Act. In the final rule, DHS is responding application.
214.2(h)(8)(ii)(F)(2)(iv) and to public comment by revising several Validity of petition for continued
(h)(19)(iii)(B)(4), which address cap subsections of proposed 8 CFR eligibility for adjustment of status. In the
exemption and ACWIA fee exemption, 214.2(h)(13)(iii)(D), which governs final rule, DHS is responding to public
respectively, for a nonprofit entity that when a nonimmigrant may be eligible comment by amending proposed 8 CFR
is related to or affiliated with an for H1B status in 1-year increments 245.25(a), which governs the
institution of higher education based on beyond the 6-year limitation that circumstances in which an individual
a formal written affiliation agreement, otherwise applies. DHS is amending the with a pending application for
DHS is replacing the term primary text of proposed 8 CFR adjustment of status can move to a job
purpose with fundamental activity 214.2(h)(13)(iii)(D)(1) by striking the in the same or a similar occupational
in response to public comments phrase, prior to the 6-year limitation classification. In particular, revisions
suggesting the term primary purpose being reached. This change clarifies are being made to implement DHSs
was too restrictive. As a result, when a that a qualifying labor certification or current section 204(j) portability policy
nonprofit entity claims exemption from Form I140 petition is not required to be and longstanding practice related to the
the cap and ACWIA fee based on a filed 365 days before the 6-year adjudication of qualifying Form I140
formal written affiliation agreement limitation is reached in order for the petitions that are not approved at the
with an institution of higher education, individual to be eligible for an time the beneficiarys application for
the final rule requires that a exemption under section 106(a) of adjustment of status has been pending
fundamental activity of the nonprofit AC21; instead, the labor certification or for 180 days or more.
entity is to directly contribute to the Form I140 petition would need to be First, in 245.25(a), DHS is replacing
research or education mission of the filed at least 365 days before the day the a general reference in the NPRM to a
institution of higher education. DHS is exemption would take effect. DHS is USCIS designated form with a
also removing the phrase absent shared also making several revisions to specific reference to Form I485
ownership or control from 214.2 simplify and clarify Supplement J as the form DHS intends
(h)(8)(ii)(F)(2)(iv) and (h)(19)(iii)(B)(4) to 214.2(h)(13)(iii)(D)(5), which concerns to be used for an individual to
clarify that an entity need not prove the advance filing; 214.2(h)(13)(iii)(D)(6), demonstrate continuing eligibility for
absence of shared ownership or control which defines petitioners who may seek adjustment of status based on an
when relying on the existence of a the exemption; 214.2(h)(13)(iii)(D)(7), existing or new job offer under INA
formal affiliation agreement to establish which describes subsequent exemption 204(j).
Second, DHS also is clarifying that the comment, DHS is making several B. Legal Authority
Supplement J may be accompanied by technical changes to the regulatory text The authority of the Secretary of
material and credible documentary in this final rule so that DHS regulations Homeland Security (Secretary) for these
evidence, in accordance with form better reflect current ACWIA fee regulatory amendments is found in
instructions. This revision expands the amounts and filing procedures: various sections of the Immigration and
types of evidence that can be submitted ACWIA fee amount and filing Nationality Act (INA), 8 U.S.C. 1101 et
in support of Supplement J beyond procedures. DHS is making technical seq., ACWIA, AC21, and the Homeland
material and credible information changes to 8 CFR 214.2(h)(19)(i), (ii), (v), Security Act of 2002 (HSA), Public Law
provided by another Federal agency, (vi) and (vii) to update the amount of 107296, 116 Stat. 2135, 6 U.S.C. 101 et
such as information from the Standard the ACWIA fee applicable to certain H seq. General authority for issuing the
Occupational Classification (SOC) 1B petitions in accordance with final rule is found in section 103(a) of
system, as had been proposed. As a statutory amendments, as well as the INA, 8 U.S.C. 1103(a), which
result, DHS is deleting the evidentiary procedures for submitting the fee to authorizes the Secretary to administer
list included in proposed 245.25(b). USCIS, or claiming an exemption from
Third, DHS is revising proposed and enforce the immigration and
the fee, to conform with current nationality laws, as well as section 102
245.25(a)(2)(ii) to reaffirm that a procedures.5 The statutory fee amount
qualifying Form I140 petition must be of the HSA, 6 U.S.C. 112, which vests
in INA 214(c)(9), 8 U.S.C. 1184(c)(9), all of the functions of DHS in the
approved before DHS examines a was amended by section 1 of Pub. L.
portability request under INA 204(j). Secretary and authorizes the Secretary
106311 (Oct. 17, 2000) (changing the to issue regulations. Further authority
Moreover, DHS is adding fee amount from $500 to $1,000), and
245.25(a)(2)(ii)(B) to confirm that, for the regulatory amendments in the
the Consolidated Appropriations Act, final rule is found in the following
unless approval of the petition would be 2005, Pub. L. 108447, Division J, Title
inconsistent with a statutory sections:
IV, sec. 422 (L1 Visa and H1B Visa Section 205 of the INA, 8 U.S.C.
requirement, a pending qualifying Form Reform Act) (Dec. 8, 2004) (permanently
I140 petition may be approved if (1) 1155, which grants the Secretary broad
extending the fee and changing the fee discretion in determining whether and
the petitioner established the ability to amount from $1,000 to a bifurcated
pay at the time of filing the petition and how to revoke the approval of any Form
amount of $1,500 for employers with I140 petition approved under section
(2) all other eligibility criteria are met at more than 25 employees, and half that
the time of filing and until the 204 of the INA, 8 U.S.C. 1154;
amount for those with up to 25 Section 214 of the INA, 8 U.S.C.
beneficiarys application for adjustment employees). DHS is updating its
of status has been pending for 180 days. 1184, including section 214(a)(1), 8
regulations to conform the fee amount to U.S.C. 1184(a)(1), which authorizes the
Finally, DHS is reorganizing and the figure in current INA 214(c)(9). DHS
renumbering 245.25(a), and making Secretary to prescribe by regulation the
regulations at 8 CFR 103.7(b)(1)(i)(CCC) terms and conditions of the admission
other technical and conforming edits.
and form instructions for the Petition for
Concurrently filed EAD of nonimmigrants;
applications. In the final rule, DHS is a Nonimmigrant Worker, Form I129, Section 274A(h)(3)(B) of the INA, 8
responding to public comment by already reflect these updated fee U.S.C. 1324a(h)(3)(B), which recognizes
amending proposed 8 CFR 274a.13(a) to amounts. The technical changes also the Secretarys authority to extend
facilitate USCISs ability to notify the reflect the elimination of references to employment authorization to
public of changes in concurrent filing the now obsolete Form I129W, which noncitizens in the United States;
procedures for EAD applications. DHS has been replaced by the Form I129 H Section 413(a) of ACWIA, which
is adding text indicating that USCIS 1B and H1B1 Data Collection and amended section 212(n)(2)(C) of the
may announce on its Web site Filing Fee Exemption Supplement and INA, 8 U.S.C. 1182(n)(2)(C), to authorize
circumstances in which an EAD which is already being used to make the Secretary to provide certain
application may be filed concurrently determinations for ACWIA fee whistleblower protections to H1B
with a related benefit request that, if exemptions. nonimmigrant workers;
granted, would form the basis for Additional entities exempt from the Section 414 of ACWIA, which
eligibility for employment ACWIA fee. DHS is making a technical added section 214(c)(9) of the INA, 8
authorization. Under the proposed rule, change to 8 CFR 214.2(h)(19)(iii) to U.S.C. 1184(c)(9), to authorize the
such announcement was limited to form include other entities that are statutorily Secretary to impose a fee on certain H
instructions. exempt from the ACWIA fee, and thus 1B petitioners to fund the training and
Automatic extensions of to conform the regulation to INA education of U.S. workers;
employment authorization for renewal 214(c)(9)(A), 8 U.S.C. 1184(c)(9)(A), as Section 103 of AC21, which
applicants. In the final rule, DHS is amended by section 1 of Pub. L. 106 amended section 214(g) of the INA, 8
responding to public comment by 311. DHS added a new paragraph (D) to U.S.C. 1184(g), to provide: (1) An
amending proposed 8 CFR 274a.13(d) to include primary or secondary exemption from the H1B numerical
clarify timeliness and termination rules educational institutions, and a new cap for certain H1B nonimmigrant
for the automatic extension of certain paragraph (E) to include nonprofit workers employed at institutions of
EAD renewal applicants. DHS is entities that engage in an established higher education, nonprofit entities
clarifying that a renewal EAD curriculum-related clinical training of related to or affiliated with such
application filed on the basis of a grant students registered at an institution of institutions, and nonprofit research
of TPS is timely if filed during the higher education. The Form I129 and organizations or governmental research
period described in the applicable its form instructions already list these organizations; (2) that an H1B
Federal Register notice regarding entities as fee exempt. nonimmigrant who ceases to be
procedures for renewing TPS. DHS is employed by a cap-exempt employer,
5 DHS finds that prior notice and comment for
also making clarifying edits to the and who was not previously counted
these technical changes is unnecessary, as DHS is
termination provision at 274a.13(d)(3). merely conforming its regulations to the self-
against the cap, will be subject to the H
In addition to the above changes that implementing statutory amendments. See 5 U.S.C. 1B numerical limitations; and (3) that a
were made in response to public 553(b)(B). worker who has been counted against
the H1B numerical cap within the 6 economic growth and job creation.7 For adjustment of status; (3) the
years prior to petition approval will not more information, the public may circumstances under which H1B
again be counted against the cap unless consult the Regulatory Impact Analysis nonimmigrant workers may begin
the individual would be eligible for a (RIA), which addresses the short-term employment with a new employer; (4)
new 6-year period of authorized H1B and long-term effects of these the method for counting time in status
admission. regulations. The RIA is available in the as an H1B nonimmigrant worker
Section 104(c) of AC21, which docket for this rulemaking. toward maximum periods of stay; (5) the
authorizes the extension of authorized DHS has analyzed potential costs of entities that are properly considered
H1B admission beyond the general 6- these regulations and has determined related to or affiliated with institutions
year maximum for H1B nonimmigrant that the changes have direct impacts to of higher education for purposes of the
workers who have approved EB1, EB individual beneficiaries of employment- H1B program; and (6) the
2, or EB3 Form I140 petitions but are based nonimmigrant and immigrant visa circumstances under which H1B
subject to backlogs due to application of petitions in the form of filing costs, nonimmigrant workers can claim
certain per-country limitations on consular processing costs, and potential whistleblower protections. The
immigrant visas; for longer processing times for EAD increased clarity provided by these rules
Section 105 of AC21, which added applications during filing surges, among enhances the ability of certain high-
what is now section 214(n) of the INA, other costs. Because some of these skilled workers to take advantage of the
8 U.S.C. 1184(n),6 to allow an H1B petitions are filed by sponsoring job portability and related provisions in
nonimmigrant worker to begin employers, this rule also has indirect AC21 and ACWIA.
concurrent or new H1B employment effects on employers in the form of The final rule also amends the current
upon the filing of a timely, non- employee replacement costs. regulatory scheme governing certain
frivolous H1B petition; The amendments clarify and amend immigrant and nonimmigrant visa
Sections 106(a) and (b) of AC21, policies and practices in various programs to further enhance job
which, as amended, authorize the employment-based immigrant and portability for certain workers and
extension of authorized H1B admission nonimmigrant visa programs, with the improve the ability of U.S. businesses to
beyond the general 6-year maximum for primary aim of providing additional retain highly valued individuals. These
H1B nonimmigrant workers who have stability and flexibility to foreign benefits are achieved by: (1) Revising
been sponsored for permanent residence workers and U.S. employers the provisions affecting the continued
by their employers and who are subject participating in those programs. In part, validity of approved Form I140
to certain lengthy adjudication or the final rule clarifies and improves petitions, and retention of priority dates
processing delays; upon longstanding policies adopted in of those petitions, for purposes of
Section 106(c) of AC21, which response to the enactment of ACWIA processing immigrant visas or
and AC21 to ensure greater consistency applications for adjustment of status; (2)
added section 204(j) of the INA to
across DHS adjudications and provide establishing a means for certain
authorize certain beneficiaries of
greater certainty to regulated employers nonimmigrant workers with approved
approved EB1, EB2, and EB3 Form
and workers. These changes provide Form I140 petitions to directly request
I140 petitions who have filed
various benefits to U.S. employers and separate employment authorization for a
applications for adjustment of status to
certain foreign workers, including the limited time when facing compelling
change jobs or employers without
enhanced ability of such workers to circumstances; (3) providing grace
invalidating their approved petitions;
accept promotions or change positions periods to certain nonimmigrants to
and
with their employers, as well as change enhance their ability to seek an
Section 101(b)(1)(F) of the HSA, 6
employers or pursue other employment authorized change of employment; and
U.S.C. 111(b)(1)(F), which establishes as opportunities. These changes also (4) identifying exceptions to licensing
a primary mission of DHS the duty to benefit the regulated community by requirements applicable to certain H1B
ensure that the overall economic providing instructive rules governing: nonimmigrant workers.
security of the United States is not (1) Extensions of stay for certain H1B The final rule also amends current
diminished by efforts, activities, and nonimmigrant workers facing long regulations governing the processing of
programs aimed at securing the delays in the immigrant visa process; (2) applications for employment
homeland. the ability of workers who have been authorization to provide additional
C. Costs and Benefits sponsored by their employers for LPR stability to certain employment-
status to change jobs or employers 180 authorized individuals in the United
Taken together, the amendments in
days after they file applications for States while addressing fraud, national
this final rule are intended to reduce security, and operational concerns. To
unnecessary disruption to businesses 7 Hart, David, et al., High-tech Immigrant prevent gaps in employment for such
and workers caused by immigrant visa Entrepreneurship in the United States, Small individuals and their employers, the
backlogs, as described in Section III.C of Business Administration Office of Advocacy (July
final rule provides for the automatic
this preamble. The benefits from these 2009), available at: https://www.sba.gov/sites/
default/files/rs349tot_0.pdf. See also Fairlie, extension of EADs (and, where
amendments add value to the U.S. Robert., Open for Business: How Immigrants are necessary, employment authorization)
economy by retaining high-skilled Driving Small Business Creation in the United upon the timely filing of a renewal
workers who make important States, The Partnership for a New American
application. To protect against fraud
Economy (August 2012), available at: http://
contributions to the U.S. economy, www.renewoureconomy.org/sites/all/themes/pnae/ and other abuses, the final rule also
including technological advances and openforbusiness.pdf; Immigrant Small Business eliminates current regulatory provisions
research and development endeavors, Owners a Significant and Growing Part of the
that require adjudication of applications
which are highly correlated with overall Economy, Fiscal Policy Institute (June 2012),
available at: http://www.fiscalpolicy.org/immigrant- for employment authorization in 90
small-business-owners-FPI20120614.pdf; days and that authorize interim EADs
6 Section 8(a)(3) of the Trafficking Victims Anderson, Stuart, American Made 2.0 How when that timeframe is not met.
Protection Reauthorization Act of 2003, Public Law Immigrant Entrepreneurs Continue to Contribute to
108193, (Dec. 19, 2003), redesignated section the U.S. Economy, National Venture Capital
DHS has prepared a full costs and
214(m) of the INA, 8 U.S.C. 1184(m), as section Association (June 2013), available at: http:// benefits analysis of the final rule, which
214(n) of the INA, 8 U.S.C. 1184(n). nvca.org/research/stats-studies/. can be found in the docket for this
rulemaking on regulations.gov. The table below provides a summary of the

provisions and impacts of this rule.
TABLE 1SUMMARY OF PROVISIONS AND IMPACTS

Provisions Purpose Expected impact of the final rule
Priority Date ......................... Clarifies when a priority date is established for employ- Quantitative:
ment-based immigrant visa petitions that do not re- Not estimated.
quire a labor certification under INA 203(b). Qualitative:
Removes ambiguity and sets consistent priority dates
for affected petitioners and beneficiaries.
Priority Date Retention ......... Explains that workers may retain priority dates and Quantitative:
transfer those dates to new and subsequently ap- Not estimated.
proved Form I140 petitions, except when USCIS re- Qualitative:
vokes approval of the petition for: Material error, Results in administrative efficiency and predictability
fraud or willful misrepresentation of a material fact, or by explicitly listing when priority dates are lost as the
revocation or invalidation of the labor certification ac- approval of the petitions that are revoked under
companying the petition. these specific grounds cannot be used as a basis for
an immigrant visa.
Improves the ability of certain workers to accept pro-
motions, change employers, or pursue other employ-
ment opportunities.
Employment-Based Immi- Incorporates statutory portability provisions into regula- Quantitative:
grant Visa Petition Port- tion. Petitioners
ability Under 204(j). Opportunity costs of time to petitioners for 1-year
range from $126,598 to $4,636,448.
DHS/USCIS
Neutral because the new supplementary form to the
application for adjustment of status to permanent res-
idence will formalize the process for USCIS requests
for evidence of compliance with INA 204(j) porting.
Qualitative:
Applicants/Petitioners
Replaces, through the Supplement J standardized
form, the need for individuals to submit job offer and
employment confirmation letters.
Provides stability and job flexibility to certain individ-
uals with approved employment-based immigrant
visa petitions.
Implements the clarifications regarding same or
similar occupational classifications through the new
Supplement J.
Allows certain foreign workers to advance and
progress in their careers.
Potential increased employee replacement costs for
employers.
DHS/USCIS
Administrative efficiency.
Standardized and streamlined process.
Employment Authorization Provisions allowing certain nonimmigrant principal Quantitative: Total costs over 10-year period to appli-
for Certain Nonimmigrants beneficiaries, and their dependent spouses and chil- cants are:
Based on Compelling Cir- dren, to apply for employment authorization if the $731.1 million for undiscounted costs.
cumstances. principal is a beneficiary of an approved EB1, EB2, $649.9 million at a 3% discounted rate.
or EB3 immigrant visa petition while waiting for his $565.2 million at a 7% discounted rate.
or her immigrant visa to become available. Applicants Qualitative:
must demonstrate compelling circumstances justi- Applicants
fying an independent grant of employment authoriza- Provides ability for nonimmigrants who have been
tion. sponsored for LPR status to change jobs or employ-
ers when compelling circumstances arise.
Incentivizes such skilled nonimmigrant workers con-
tributing to the economy to continue seeking LPR
status.
Nonimmigrant principal workers who take advantage
of the compelling circumstances EAD will lose their
current nonimmigrant status and may not be able to
adjust to LPR status in the United States.

Consular processing imposes potentially significant
costs, risk and uncertainty for individuals and their
families as well.
Dependents
Allows dependents to enter labor market earlier and
contribute to household income.
TABLE 1SUMMARY OF PROVISIONS AND IMPACTSContinued

90-Day Processing Time for Eliminates regulatory requirement for 90-day adjudica- Quantitative:
Employment Authorization tion timeframe and issuance of interim-EADs. Adds Not estimated.
Applications. provisions allowing for the automatic extension of Qualitative:
EADs for up to 180 days for certain workers filing re- Applicants
newal requests. Removing a regulatory timeframe and moving to one
governed by processing goals could potentially lead
to longer processing times whenever USCIS is faced
with higher than expected filing volumes. If such a
situation were to occur, this could lead to potential
delays in work employment start dates for first-time
EAD applicants until approval is obtained. However,
USCIS believes such scenarios will be rare and miti-
gated by the automatic extension provision for re-
newal applications which will allow the movement of
resources in such situations.
Providing the automatic continuing authorization for
up to 180 days for certain renewal applicants could
lead to less turnover costs for U.S. employers. In ad-
dition, the automatic extension provision minimizes
the applicants risk of any gaps in employment au-
thorization.
DHS/USCIS
Streamlines the application and card issuance proc-
esses.
Enhances the ability to ensure all national security
verification checks are completed.
Reduces duplication efforts.
Reduces opportunities for fraud and better accommo-
dates increased security measures.
Automatic Revocation With Revises regulations so that a petition may remain valid Quantitative:
Respect to Approved Em- despite withdrawal by the employer or termination of Not estimated.
ployment-Based Immigrant the employers business after 180 days or more of Qualitative:
Visa Petitions. approval, or 180 days or more after the associated Beneficiary retains priority date unless the petition is
application for adjustment of status has been filed. revoked for one of the reasons specified in final 8
CFR 204.5(e)(2).
Affords porting ability under INA 204(j) and extension
of H1B status pursuant to AC21 sections 104(c) and
106(a) and (b), as well as potential eligibility for the
new compelling circumstances EAD.
Period of Admission for Cer- Nonimmigrants in certain high-skilled, nonimmigrant Quantitative:
tain Nonimmigrant Classi- classifications may be granted grace periods of up to Not estimated.
fications. 10 days before and after their validity period, and a Qualitative: Nonimmigrant Visa Holders.
grace period upon cessation of employment on which Assists the beneficiary in getting sufficiently settled
the foreign nationals classification was based, for up such that he or she is immediately able to begin
to 60 days or until the end of their authorized validity working upon the start of the petition validity period.
period, whichever is shorter, during each authorized Provides time necessary to wrap up affairs to depart
validity period. the country.
Allows the beneficiary to maintain nonimmigrant sta-
tus when faced with a termination of employment to
wrap up affairs, find new employment, or change to a
different nonimmigrant classification.
Portability of H1B Status Updates, improves, and clarifies DHS regulations con- Quantitative:
Calculating the H1B Ad- sistent with policy guidance. Not estimated.
mission Period Exemp- Qualitative:
tions Due to Lengthy Adju- Formalizes existing DHS policy in the regulations,
dication Delays Per Coun- which will give the public access to existing policy in
try Limitation Exemptions one location.
Employer Debarment and Clarifies current DHS policy that there is no temporal
H1B Whistleblower Provi- limit on recapturing time.
sions.
H1B Licensing Require- Expands the evidence USCIS will examine in cases Quantitative:
ments. where a state allows an individual without licensure Not estimated.
to fully practice the relevant occupation under the su- Qualitative:

pervision of licensed senior or supervisory personnel Provides additional flexibilities in obtaining necessary
in that occupation to include evidence of compliance licensure while still permitting H1B employment dur-
with state requirements. Additionally, USCIS is ex- ing the pendency of state or local license applica-
panding the possible situations in which it may ap- tions.
prove an H1B petition even though the beneficiary Helps to relieve the circular predicament an H1B
cannot obtain a license for certain technical reasons. beneficiary may encounter.

May minimally increase time burden for the petitioner

to gather information and send it to USCIS. However,
DHS anticipates that the benefits to the petitioner
and beneficiary exceed the opportunity costs of time.
May increase opportunity costs of time for USCIS ad-
judicators to evaluate additional evidence in such
types of cases. However, DHS does not anticipate
that the opportunity costs of time will be so substan-
tial as to warrant additional hiring of staff or cause
significant adjudication delays.
Exemptions to the H1B Nu- Codifies definition of institution of higher education Quantitative:
merical Cap, Revised Def- and adds a broader definition of related or affiliated Not estimated.
inition of Related or Affili- nonprofit entity. Also, revises the definition of re- Qualitative:
ated Nonprofit Entity in lated or affiliated nonprofit entity for purposes of the Clarifies the requirements for a nonprofit entity to es-
the ACWIA Fee Context, ACWIA fee to conform it to the new definition of the tablish that it is related to or affiliated with an institu-
and Expanded Interpreta- same term for H1B numerical cap exemption. Ex- tion of higher education.
tion of Governmental Re- pands the interpretation of governmental research Better reflects current operational realities for institu-
search Organizations.. organizations for purposes of the ACWIA fee and tions of higher education and how they interact with,
aligns definitions for H1B cap and fee exemptions. and sometimes rely on, nonprofit entities.
Clarifies the interpretation of governmental research
organizations to include federal, state, and local gov-
ernmental organizations.
May expand the numbers of petitioners that are cap
exempt and thus allow certain employers greater ac-
cess to H1B workers.
III. Background will always benefit our nation by LCA attestation requirements, or for
creating more jobs for everyone.) 9 cooperating, or attempting to cooperate,
A. ACWIA and AC21 ACWIA also included several in an investigation or proceeding
1. The American Competitiveness and measures intended to improve pertaining to the employers LCA
Workforce Improvement Act of 1998 protections for U.S. and H1B compliance. See INA 212(n)(2)(C)(iv), 8
nonimmigrant workers. Section 413 of U.S.C. 1182(n)(2)(C)(iv). Section 413
ACWIA was enacted on October 21, the ACWIA provided enhanced further required the development of a
1998. Among other things, ACWIA was penalties for employer violations of process to enable H1B nonimmigrant
intended to address shortages of Labor Condition Application (LCA) workers who file complaints with DOL
workers in the U.S. high-technology obligations as well as willful regarding illegal retaliation, and are
sector. To increase the number of such misrepresentations by employers in otherwise eligible to remain and work in
workers in the United States, section LCAs. See ACWIA 413 (creating INA the United States, to seek other
411 of ACWIA increased the annual 212(n)(2)(C), codified at 8 U.S.C. appropriate employment in the United
numerical cap on H1B visas from 1182(n)(2)(C)). Section 413 of ACWIA States. See INA 212(n)(2)(C)(v), 8 U.S.C.
also made it a violation for an H1B 1182(n)(2)(C)(v).
65,000 to 115,000 in each of fiscal years
employer to retaliate against an Section 414 of ACWIA imposed a
(FY) 1999 and 2000, and to 107,500 in
employee for providing information to temporary fee on certain H1B
FY 2001.8 See section 411 of ACWIA the employer or other persons, or for employers to fund, among other things,
(amending INA 214(g)(1), codified at 8 cooperating in an investigation, related job training of U.S. workers and
U.S.C. 1184(g)(1)). The congressional to an employers violation of its LCA scholarships in the science, technology,
statements accompanying ACWIA attestations and obligations. Employers engineering, and mathematics (STEM)
recognized that the continued are prohibited from taking retaliatory fields. See ACWIA 414 (creating INA
competitiveness of the U.S. high- action in such situations, including any 214(c)(9), codified at 8 U.S.C.
technology sector is crucial for [U.S.] action to intimidate, threaten, restrain, 1184(c)(9)). Although initially
economic well-being as a nation, and for coerce, blacklist, discharge, or in any scheduled to sunset, the ACWIA fee was
increased economic opportunity for other manner discriminate against an eventually made permanent by the H
American workers. See 144 Cong. Rec. employee for disclos[ing] information 1B Visa Reform Act of 2004, enacted as
S12,741, S12,749 (daily ed. Oct. 21, to the employer, or to any other person, part of the Consolidated Appropriations
1998) (statement of Sen. Spencer that the employee reasonably believes Act, 2005, Public Law 108447, div. J,
Abraham); see also id. (This issue is evidences [an LCA] violation, any rule tit. IV. That later enactment also
not only about shortages, it is about or regulation pertaining to the statutory established the current fee amounts of
opportunities for innovation and $1,500 per qualifying petition, or $750
expansion, since people with valuable
9 Senator Abraham drafted and sponsored the
for employers with no more than 25
original Senate bill for ACWIA, then titled the full-time equivalent employees
skills, whatever their national origin, American Competitiveness Act, S. 1723, 105th
Cong. (1998), which passed the full Senate by a 78 employed in the United States
8 Section 102(a) of AC21 further amended INA 20 margin on May 18, 1998. 144 Cong. Rec. as (including employees employed by any
214(g)(1) by increasing the annual numerical cap on
S12,74849 (daily ed. Oct. 21, 1998). He negotiated affiliate or subsidiary of such employer).
with the House of Representatives on a compromise
H1B visas to 195,000 for each of the fiscal years ACWIA bill and was deputized to negotiate in talks
Congress in the interim had amended
2001, 2002, 2003. In fiscal year 2004 the annual H between Congress and the White House to finalize section 214(c)(9)(A) of the INA, 8 U.S.C.
1B numerical cap reverted to 65,000. the bill. 1184(c)(9)(A), by specifying additional
employers that are exempt from the fiscal year. See AC21 104(a) and (b) intended to allow such high-skilled
ACWIA fee. See Act of Oct. 17, 2010, (amending INA 202(a)(5), codified at 8 individuals to remain in the United
Public Law 106311. Exempt employers U.S.C. 1152(a)(5)); see also S. Rep. No. States as H1B nonimmigrant workers,
include primary and secondary 260, 106th Cong., 2nd Sess. at 2. This rather than being forced to leave the
education institutions, certain provision recognized the country and disrupt their employers due
institutions of higher education and discriminatory effects of [the per- to a long-pending labor certification
related or affiliated nonprofit entities, country limitations] on nationals from application or Form I140 petition. See
nonprofit entities engaged in certain Asian Pacific nations, S. Rep. No. 260, at 23.
curriculum-related clinical training, and specifically Chinese and Indian Finally, to provide stability and
nonprofit research organizations or nationals, which prevent[ed] an flexibility to beneficiaries of approved
governmental research organizations. employer from hiring or sponsoring Form I140 petitions subject to
See INA 214(c)(9)(A), 8 U.S.C. someone permanently simply because immigrant visa backlogs and processing
1184(c)(9)(A). he or she is Chinese or Indian, even delays, AC21 also provided certain
though the individual meets all other workers the improved ability to change
2. The American Competitiveness in the jobs or employers without losing their
legal criteria. See S. Rep. No. 260, at
Twenty-First Century Act of 2000 positions in the immigrant visa queue.
22.
AC21 was enacted on October 17, Section 104(c) of AC21 was designed Specifically, section 106(c) of AC21
2000. It made numerous changes to the to further ameliorate the impact of the provides that certain Form I140
INA designed to improve the U.S. per-country limitations on H1B petitions filed under the EB1, EB2,
economy in the short and long term. nonimmigrant workers who are the and EB3 preference categories will
First, AC21 sought to improve economic beneficiaries of approved EB1, EB2, remain valid with respect to a new
growth and job creation by immediately or EB3 Form I140 petitions. qualifying job offer if the beneficiary
increasing U.S. access to high-skilled Specifically, section 104(c) of AC21 changes jobs or employers, provided an
workers. See S. Rep. No. 260, at 10 authorized the extension of H1B status application for adjustment of status has
([A]rtificially limiting companies beyond the statutory 6-year maximum been filed and such application has
ability to hire skilled foreign for such individuals if immigrant visas been pending for 180 days or more. See
professionals will stymie our countrys are not immediately available to them AC21 106(c) (creating INA 204(j)). The
economic growth and thereby partially because the relevant preference category new job offer must be in the same or a
atrophy its creation of new jobs . . . is already over-subscribed for that similar occupational classification as
American workers interests are foreign nationals country of birth. See the job for which the original Form I
advanced, rather than impeded, by AC21 104(c). In support of this 140 petition was filed. Id.
raising the H1B cap). Second, AC21 provision, Congress noted that these
sought to improve the education and ii. AC21 Provisions Seeking To Improve
immigrants would otherwise be forced
training of U.S. workers in high-skilled the H1B Nonimmigrant Worker
to return home at the conclusion of their
sectors, and thereby produce a U.S. Classification
allotted time in H1B status, disrupting
workforce better equipped to fill the projects and American workers. See S. As noted above, one of the principal
need in such sectors, through the Rep. No. 260, at 22. Section 104(c) purposes for the enactment of AC21 was
funding of scholarships and high-skilled enables these foreign nationals to to improve the countrys access to high-
training programs. See section 111 of remain in H1B status until they are skilled workers. AC21 therefore
AC21. As noted by the accompanying able to receive an immigrant visa and contains several additional provisions
Senate Report, foreign-born high-skilled adjust their status within the United intended to expand and strengthen the
individuals have played an important States, thus limiting the disruption to H1B program.
role in U.S. economic prosperity and the American businesses. Id. a. Exemptions From the H1B
competitiveness of U.S. companies in AC21 also sought to more generally Numerical Cap
numerous fields. Id. AC21 sought to ameliorate the impact of the lack of
provide such benefits by improving both employment-based immigrant visas on Section 103 of AC21 amended the
the employment-based immigrant visa the high-skilled beneficiaries of INA to create an exemption from the H
process and the H1B specialty approved Form I140 petitions. Sections 1B numerical cap for those H1B
occupation worker program. 106(a) and (b) of AC21, as amended by nonimmigrant workers who are
section 11030A of the 21st Century employed or offered employment at an
i. AC21 Provisions Relating to institution of higher education, a
Department of Justice Appropriations
Employment-Based Immigrant Visas nonprofit entity related or affiliated to
Authorization Act, Public Law 107273
AC21 contained several provisions (2002), authorized the extension of H such an institution, or a nonprofit
designed to improve access to 1B status beyond the statutory 6-year research organization or governmental
employment-based immigrant visas for maximum for H1B nonimmigrant research organization. See INA
certain workers. Section 104 of AC21, workers who are being sponsored for 214(g)(5)(A) and (B); 8 U.S.C.
for example, sought to ameliorate the LPR status by U.S. employers and are 1184(g)(5)(A) and (B). Congress deemed
impact of the per-country limitations, subject to lengthy adjudication or such employment advantageous to the
which generally limit the number of processing delays. Specifically, these United States, based on the belief that
immigrant visas that may be issued to provisions exempted H1B increasing the number of high-skilled
the nationals of any one country to no nonimmigrant workers from the 6-year foreign nationals working at U.S.
more than 7 percent of the total number limitation on H1B status contained in institutions of higher education would
of immigrant visas. See INA 202(a)(2), 8 INA 214(g)(4), if 365 days or more have increase the number of Americans who
U.S.C. 1152(a)(2). Sections 104(a) and elapsed since the filing of a labor will be ready to fill specialty occupation
(b) of AC21 amended the INA to certification application (if such positions upon completion of their
effectively waive application of the per- certification is required under INA education. See S. Rep. No. 260, at 21
country limitations when such 212(a)(5), 8 U.S.C. 1182(a)(5)), or a Form 22. Congress reasoned that by virtue of
application would result in immigrant I140 petition under INA 203(b), 8 what they are doing, people working in
visas going unused in any quarter of the U.S.C. 1153(b). These provisions were universities are necessarily immediately
contributing to educating Americans. against the H1B numerical cap within B. Processing Applications for
Id. at 21. Congress also recognized that the 6 years prior to petition approval Employment Authorization Documents
U.S. institutions of higher education are shall not be counted against the cap The Secretary of Homeland Security
on a different hiring cycle from other unless that individual would be eligible has broad authority to extend
U.S. employers, and in years of high H for a new 6-year period of authorized H employment authorization to
1B demand, these institutions would be 1B admission. See INA 214(g)(7), 8 noncitizens in the United States. See,
unable to hire cap-subject H1B U.S.C. 1184(g)(7). In addition, an e.g., INA sections 103(a) and
nonimmigrant workers. Id. at 22. individual previously in the United 274A(h)(3)(B), 8 U.S.C. 1103(a) and
For purposes of this H1B numerical States in H1B nonimmigrant status is 1324a(h)(3)(B). DHS regulations at 8
cap exemption, the term institution of eligible for a full 6 years of authorized CFR 274a.12(a), (b), and (c) describe
higher education is given the same admission as an H1B nonimmigrant three broad categories of foreign
meaning as that set forth in section after residing and being physically nationals authorized to work in the
101(a) of the Higher Education Act of present outside the United States for the United States. Individuals in the first
1965, Public Law 89329, 79 Stat. 1224 immediate prior year. Id.
(1965), as amended (codified at 20 class, described at 8 CFR 274a.12(a), are
Section 103 of AC21 also amended authorized to work in the United States
U.S.C. 1001(a) (Higher Education the INA to address cases in which an H
Act)).10 See INA 214(g)(5)(A), 8 U.S.C. incident to their immigration status,
1B nonimmigrant worker seeks to without restriction as to the location of
1184(g)(5)(A). Due to the lack of change employment from a cap-exempt
statutory definitions, DHS defined the their employment or the type of
entity to a cap-subject entity. Section employment they may accept. In many
terms related or affiliated nonprofit 103 provides that once employment
entity, and nonprofit research cases, their immigration status and
ceases with respect to a cap-exempt attendant employment authorization is
organization or governmental research entity, the H1B nonimmigrant worker
organization at 8 CFR evidenced by the Arrival-Departure
will be subject to the cap if not Record (Form I94). Those individuals
214.2(h)(19)(iii)(B) and (C), respectively, previously counted and no other
and adopted these definitions as a seeking to obtain an EAD that contains
exemptions from the cap apply. See INA not only evidence of employment
matter of interpretation in the cap 214(g)(6), 8 U.S.C. 1184(g)(6).
exemption context.11 authorization, but also a photograph,
c. H1B Portability typically must file a separate
b. Application of the H1B Numerical application with USCIS. See 8 CFR
Cap to Persons Previously Counted Section 105 of AC21 further improved 274a.13(a).
the H1B program by increasing job Individuals in the second class,
Section 103 of AC21 also amended portability for H1B nonimmigrant
the INA to ensure that H1B described at 8 CFR 274a.12(b), are
workers. Specifically, section 105 employment authorized incident to
nonimmigrant workers can change jobs
allows an H1B nonimmigrant worker their nonimmigrant status, but each
or employers without again being
to begin concurrent or new H1B individuals employment authorization
counted against the H1B cap.
employment upon the filing of a timely, is valid only with a specific employer.
Specifically, section 103 provides that
nonfrivolous H1B petition. See INA Individuals in this second group do not
an individual who has been counted
214(n), 8 U.S.C. 1184(n). The H1B file separate requests for evidence of
10 Section 101(a) of the Higher Education Act of
nonimmigrant worker must have been employment authorization and are not
1965, as amended, defines institution of higher lawfully admitted to the United States, generally issued EADs. These
education as an educational institution in any must not have worked without individuals instead obtain a Form I94
state that: authorization after the lawful
(1) admits as regular students only persons indicating their nonimmigrant status
admission, and must be in a period of and attendant employment
having a certificate of graduation from a school
providing secondary education, or the recognized stay authorized by the Secretary.12 authorization.
equivalent of such a certificate, or persons who Employment authorization based on the Individuals in the third class,
meet the requirements of [20 U.S.C. 1091(d)]; pending petition continues until described at 8 CFR 274a.12(c), are
(2) is legally authorized within such state to adjudication. See INA 214(n)(1), 8
provide a program of education beyond secondary required to apply for employment
education; U.S.C. 1184(n)(1). If the H1B petition is authorization and may begin working
(3) provides an educational program for which denied, the employment authorization only if USCIS approves their
the institution awards a bachelors degree or provided under this provision ceases. application. This employment
provides not less than a 2-year program that is Id. Congress created H1B portability to
acceptable for full credit toward such a degree, or authorization is subject to the
awards a degree that is acceptable for admission to
allow an H1B visa holder to change restrictions described in the regulations
a graduate or professional degree program, subject employers at the time a new employer for the specific employment eligibility
to review and approval by the Secretary [of files the initial paperwork, rather than category. Generally, the approval of an
Education]; having to wait for the new H1B
(4) is a public or other nonprofit institution; and EAD application by an individual
petition to be approved. This responds described in 8 CFR 274a.12(c) is within
(5) is accredited by a nationally recognized
accrediting agency or association, or if not so to concerns raised about the potential the discretion of USCIS. There is no
accredited, is an institution that has been granted for exploitation of H1B visa holders as right to appeal the denial of an EAD
preaccreditation status by such an agency or a result of a specific U.S. employers application. See 8 CFR 274a.13(c).
association that has been recognized by the control over the employees legal
Secretary [of Education] for the granting of Individuals requesting an EAD must
preaccreditation status, and the Secretary [of status. See S. Rep. No. 260, at 2223. file Form I765 with USCIS in
Education] has determined that there is satisfactory accordance with the form instructions.
assurance that the institution will meet the 12 See USCIS Memorandum from Donald Neufeld,
accreditation standards of such an agency or Consolidation of Guidance Concerning Unlawful

See 8 CFR 274a.13. Under current
association within a reasonable time. Presence for Purposes of Sections 212(a)(9)(B)(i) regulations, if USCIS does not
11 See USCIS Memorandum from Michael Aytes, and 212(a)(9)(C)(i)(I) of the Act (May 6, 2009) adjudicate the Form I765 within 90
Guidance Regarding Eligibility for Exemption from (Neufeld May 2009 Memo) (describing various days from the date USCIS receives the
the H1B Cap Based on 103 of the American periods of authorized stay), available at https://
Competitiveness in the Twenty-First Century Act of www.uscis.gov/sites/default/files/USCIS/Laws/
application, the applicant will be
2000 (AC21) (Public Law 106313) (June 6, 2006) Memoranda/Static_Files_Memoranda/2009/ granted an interim document
(Aytes Memo June 2006) at 24. revision_redesign_AFM.PDF. evidencing employment authorization
with a validity period not to exceed 240 LPR status for many workers, especially become permanent residents. Their
days. See 8 CFR 274a.13(d). for workers from oversubscribed employment opportunities may be
countries who can face delays that limited to their original job duties with
C. The Increasing Challenges Caused by
extend for more than a decade.16 the U.S. employer that sponsored their
Immigrant Visa Backlogs AC21 was enacted as a response to the temporary admission to the United
The final rule addresses in part some long and growing delays for many States, despite the fact that they may
of the challenges that flow from the beneficiaries of Form I140 petitions, to have gained professional experience
statutory limits on immigrant visas, ameliorate the detrimental impact of that would otherwise allow them to
consistent with existing DHS such delays on the U.S. economy, U.S.
authorities. The number of employment- progress substantially in their careers.
businesses, and affected workers
based immigrant visas statutorily themselves. Those delays, however, Many individuals subject to the
allocated per year has remained have grown substantially longer than immigrant visa backlogs confront the
unchanged since the passage of the those that existed at the time AC21 was choice between remaining employed in
Immigration Act of 1990. In the passed. Although DHS has worked a specific job under the same terms and
intervening 25 years, the countrys diligently to improve processing times conditions originally offered to them, or
economy has expanded dramatically. during the intervening period, visa abandoning the pursuit of an immigrant
The size of the U.S. economy, as backlogs due to statutory numerical visa altogether if they do not have
measured by U.S. gross domestic limits for many individuals seeking EB another Form I140 petition filed on
product (GDP), increased by about 83 2 and EB3 classification have grown their behalf. When such a worker
percent since 1990, rising from $8.955 significantly for certain individuals.17 changes employers or jobsincluding a
trillion in 1990 to $16.397 trillion in DHS recognizes the resulting realities change to an identical job with a
2015.13 Over the same period, GDP per confronting individuals seeking different employer or to a new but
capita increased by just over 42 percent, employment-based permanent residence related job for the same employerthe
rising from $35,794 in 1990 to $50,970 who, due to immigrant visa
in 2015.14 The number of entities doing worker is typically subject to
unavailability, are required to wait
business in the United States increased uncertainty as to whether USCIS will
many years for visas to become available
by at least 24 percent during the same before they can file applications for approve his or her application for LPR
period.15 Over the same period, adjustment of status or seek immigrant status based on the change. Moreover,
employer demand for immigrant visas visas abroad and become LPRs. In many these individuals must consider
has increasingly outpaced supply in instances, these individuals are in the whether such changes would involve
some categories and for some United States in a nonimmigrant, expensive additional immigration
nationalities, resulting in growing waits employer-specific temporary worker processes, greatly discouraging them.
for some sponsored employees to obtain category (e.g., H1B or L1 visa Indeed, under current regulations, some
their LPR status. Such delays have classification) and may be unable to changes in employment could result in
resulted in substantial inequalities and accept promotions or otherwise change the loss of nonimmigrant status, loss of
other hardships flowing from limits on jobs or employers without abandoning the ability to change to another
the ability of sponsored workers to their existing effortsincluding great nonimmigrant status, loss of an
change employment to enhance their investments of time and moneyto approved immigrant visa, loss of the
skills, to accept promotions, or to ability to obtain an immigrant visa or
otherwise change their positions. Since 16 According to the Visa Bulletin for November
adjust to LPR status, or the need for the
AC21 was enacted in October of 2000, 2016, immigrant visas are currently issuable to all
affected worker and his or her family to
certain workers seeking LPR status in persons qualifying under the EB1 preference
category. The EB2 category Application Final immediately depart the United States.
the United States have faced increasing Action date cutoff is current for all countries except As a result, these employees often suffer
challenges as a consequence of the for China and India; the cutoff date for China is July
through many years of effective career
escalating wait times for immigrant 15, 2012 and the cutoff date for India is November
visas. Numerical limitations in the 1, 2007, meaning nationals of these countries may stagnation, as they are largely
have to wait 4 to 9 years for a visa to be authorized dependent on current employers for
various employment-based preference for issuance. The Application Final Action cut-off
categories, combined with the per- dates for nationals of most countries under the EB
immigration status and are substantially
country limitations that further reduce 3 preference category are set at July 1, 2016 (a wait restricted in their ability to change
visa availability to certain workers, has of less than five months). But for EB3 Indian employers or even accept promotions
nationals, the Application Final Action cutoff dates
produced significant oversubscription are set at March 8, 2005 (a wait of more than 10
from, or make lateral movements
in the EB2 and EB3 categories, years) and EB3 cutoff dates for Chinese nationals within, their current employers.
particularly for individuals born in are set at April 15, 2013 (a wait of more than 3
years). See Visa Bulletin for November 2016,
Simply put, many workers in the
India and China. This oversubscription https://travel.state.gov/content/visas/en/law-and- immigrant visa process are not free to
results in substantial delays in obtaining policy/bulletin/2017/visa-bulletin-for-november- consider all available employment and
2016.html. career development opportunities. This
13 U.S. Department of Commerce, Bureau of 17 According to the Visa Bulletin for October 2000
Economic Analysis, Table 1.1.6 Real Gross (the month AC21 was enacted), visa availability was effectively prevents U.S. employers
Domestic Product, Chained (2009) Dollars, https:// current for all persons qualifying under the EB1 from treating them like the high-
www.bea.gov/iTable/index_nipa.cfm. preference category. The EB2 category was current potential individuals the employer
14 U.S. Department of Commerce, Bureau of for all countries except for China and India. The
Economic Analysis, Table 7.1 Selected Per Capita EB2 cut-off dates were March 8, 1999 for persons
hired them to be, thus restricting
Product and Income Series and Chained (2009) chargeable to China (a wait of 19 months) and productivity and the promise they offer
Dollars, https://www.bea.gov/iTable/index_ November 1, 1999 for persons chargeable to India to our nations economy. The lack of
nipa.cfm. (a wait of 11 months). The EB3 category likewise predictability and flexibility for such
15 Compare U.S. Census data collected in 1992 was current for all countries except for China and
identifying over 4.61 million firms doing business India, with a cut-off date of March 15, 1998 for workers may also prevent them from
in the United States, available at http:// individuals charged to China (a wait of 31 months) otherwise investing in and contributing
www.census.gov/prod/www/economic_census.html, and February 8, 1997 for individuals charged to to the local, regional, and national
with U.S. Census data collected in 2012 identifying India (a wait of 44 months). See http://
over 5.72 million firms doing business, available at dosfan.lib.uic.edu/ERC/visa_bulletin/2000 economy or fully integrating into
http://www.census.gov/econ/susb/. 10bulletin.html. American society.
IV. Discussion of Comments could have gone further under existing B. Authority of DHS To Administer and
statutory authorities. Enforce Immigration Laws
A. Overview of the Comments
A number of other comments were 1. Description of DHSs Legal Authority
During the 60-day public comment
period, DHS received 27,979 comments opposed to the proposed rule based on As discussed at length in section II.B.
offering a wide variety of opinions and generalized concerns about its impact above, the authority of the Secretary for
recommendations on the NPRM and on the U.S. economy. Some commenters these regulatory amendments is found
related forms. A range of entities and were concerned that this rule may in various sections of the INA, ACWIA,
individuals submitted comments, facilitate the displacement of American AC21, and the HSA. General authority
including nonimmigrants seeking to workers in certain sectors of the U.S. for issuing the final rule is found in
become LPRs, U.S. workers, schools and economy, such as in the information section 103(a) of the INA, 8 U.S.C.
universities, employers, labor technology sector. Other commenters 1103(a), which authorizes the Secretary
organizations, professional were concerned that the rule could to administer and enforce the
organizations, advocacy groups, law facilitate the displacement of U.S. immigration and nationality laws, as
firms and attorneys, and nonprofit workers and a decrease in wages for well as section 102 of the HSA, 6 U.S.C.
organizations. U.S. citizen workers. One commenter 112, which vests all of the functions of
Many commenters expressed support opposing the proposed rule advocated DHS in the Secretary and authorizes the
for the rulemaking, in whole or in part. for developing U.S. citizens Secretary to issue regulations. Other
Supporters of the proposed rule agreed employment skills to enable them to sections of the INA, together with
that it would help the United States have more employment opportunities. ACWIA and AC21, provide specific
attract and retain high-skilled foreign Others submitted comments related to statutory authority for multiple
workers and would provide some relief the potential for fraud or to perceived provisions of the final rule as detailed
to nonimmigrants and their families in section III.A of this preamble. DHS
irregularities in the rulemaking process.
during their transition to LPR status. In notes that, to the extent some of the
Commenters, for example, expressed
particular, these commenters approved commenters requests for changes
concern that this rule could increase the
of the proposals to retain priority dates require action from Congress or other
for the beneficiaries of immigrant visa potential for fraud and abuse,
Departments, the Department lacks the
petitions; provide grace periods of up to particularly by employers seeking to
authority to adopt these changes. DHS
60 days for certain high-skilled take advantage of the immigration believes that this final rule improves
nonimmigrant workers to enhance job system. Commenters also expressed upon existing policies and provides
portability; extend grace periods of up concern that the substance of the additional flexibilities consistent with
to 10 days for certain high-skilled rulemaking was unduly affected by a DHSs existing authority to administer
nonimmigrant workers so that they may former lobbyist. Other commenters were the U.S. immigration system under the
more easily change or extend their concerned that provisions in the relevant statutes passed by Congress.
nonimmigrant status; and codify proposed rule would provide greater
guidance on counting previously financial benefits to immigration 2. Public Comments and Responses
exempt workers under nonimmigrant attorneys and to USCIS than to the Comment. Many commenters opposed
visa caps, as well as policies foreign workers who are the subject of the rule based on what they perceived
determining admission periods for such the rule. to be insufficient legal authority
workers. Some commenters who Finally, DHS received a number of supporting the proposed changes. Many
generally supported the proposals also comments that were beyond the scope of these commenters asserted that the
suggested changes to certain provisions. of this rulemaking. For example, several provisions in this rule were tantamount
Other commenters opposed the commenters asked DHS to include to new immigration legislation and that
proposed rule for different reasons. provisions creating new immigration the rule thus effected an
Some commenters who opposed the unconstitutional circumvention of
benefits for inventors, researchers, and
proposed rule questioned DHSs legal Congress role to establish the
founders of start-up enterprises, a
authority to promulgate some of the immigration laws. A few commenters
proposal that was not raised in the
regulatory changes contained therein. A claimed that only certain discrete
substantial number of other NPRM and some of which is the subject
proposals included in this rule are
commenters, however, objected to the of a different rulemaking.18 Other
beyond DHSs legal authority.
proposed rule because they believed commenters focused on the U.S. Response. DHS maintains that each
many proposed changes should and political climate without addressing the proposed revision in this rule is fully
could be more expansive. Such proposed rule. Similarly, some within DHSs statutory authority.
commenters, for example, believed that submitted comments on the merits of Section 103(a) of the INA, 8 U.S.C.
the rule should have substantially other commenters views without 1103(a), expressly vests the Secretary
broadened the criteria for obtaining providing their own views on the with broad authority to administer and
independent employment authorization proposal itself. enforce the immigration laws, including
for beneficiaries of immigrant visa DHS has reviewed all of the public by establishing regulations or
petitions, rather than limiting such a comments received in response to the prescribing such forms as necessary to
benefit to cases involving compelling proposed rule and thanks the public for carry out this authority. Additionally,
circumstances. Many commenters who its extensive input during this process. section 102 of the HSA 6 U.S.C. 112,
opposed the rule were intending In the discussion below, DHS vests all of the functions of DHS in the
immigrants who described their summarizes and responds to all relevant Secretary and authorizes the Secretary
personal experiences to illustrate how comments that were timely submitted to issue regulations.
they would have been helped by the on the NPRM, which are grouped by This rulemaking reflects the lawful
additional changes they requested. subject area. exercise of statutory authority delegated
Some commenters argued that the by Congress. In the preamble to this
proposed rule did nothing more than 18 See International Entrepreneur Rule, 81 FR final rule, DHS has identified the
codify existing policies and that DHS 60129 (Aug. 31, 2016). statutory authorities for all of the
revisions being made, including various children) employment authorization petitioners that are cap-exempt, DHS
provisions of the INA, the HSA, ACWIA while they wait for their immigrant believes that the changes improve
and AC21. Through this rulemaking, visas to become available. For example, current policy by better reflecting
DHS is exercising its authority to one commenter stated that the rule current operational realities for
promulgate regulations as necessary to would nullify[ ] Americans statutory institutions of higher education and
properly implement and administer protections against job-threatening flows governmental research organizations,
existing immigration laws. As such, this of excess foreign labor. Other and are consistent with the exemption
final rule will improve processes for commenters believed that the perceived enacted by Congress. In addition, DHS
U.S. employers seeking to sponsor and increase in the number of visas that added a provision that will protect
retain immigrant and nonimmigrant would be issued under this rule reflects against indefinite H1B extensions
workers; provide greater stability and the Administrations favoring of skilled under section 106(a) of AC21. See 8 CFR
job flexibility for such workers; and immigrant workers over natural-born 214.2(h)(13)(iii)(D)(10).
increase transparency and consistency U.S. citizens. One commenter claimed Additionally, DHS is not providing
in the application of DHS policy related that the proposal to allow an H1B compelling circumstances employment
to affected classifications. worker whose employer has applied for authorization to an unlimited number of
Comment. Several commenters LPR status on the workers behalf to stay foreign workers and their dependents
questioned the general basis for various and work in the United States beyond while they wait for immigrant visas to
immigration actions taken by the the 6-year limit violates the become available. Rather, DHS is
Executive Branch related to businesses Constitution, including by waiv[ing] allowing certain high-skilled
and high-skilled workers. These federal law without action of the nonimmigrant workers and their
commenters believed that the Executive Congress of the United States. dependents, who are all on the path to
Branch has exceeded its role by taking Additionally, one commenter expressed LPR status, to apply for independent
it upon itself to achieve something that concern that the proposed changes and temporary employment
[C]ongress has failed to do. would allow foreign workers in the authorization if they meet certain
Response. As noted above, DHS has United States on expired H1B visas to criteria, including demonstrating that
the requisite legal authority to issue this extend their stay indefinitely by the workers need such employment
final rule. In enacting the INA, ACWIA, applying for employment-based LPR authorization due to compelling
AC21, and the HSA, Congress accorded status. The commenter stated that this circumstances. While some of the
DHS the responsibility for was an impermissible change because dependents of these individuals may
implementing and administering these Congress is responsible for setting the not have been part of the workforce at
laws. Consistent with that authority, annual limits on H1B visas. the time they receive such employment
DHS is promulgating this final rule to Response. DHS is not modifying authorization, they would eventually
further define and clarify existing immigrant or nonimmigrant numerical become part of the workforce even
statutory requirements. With this final limits set forth in the INA and is not without this separate employment
rule, DHS is also responding to a changing the classes of foreign workers authorization as they are already on the
specific directive from the Secretary to who qualify for employment-based path to permanent residence. See
strengthen and improve various immigrant or nonimmigrant visas. Section IV, part F of this preamble for
employment-based visa programs Contrary to commenters statements, the a discussion of compelling
within the Departments existing legal provisions contained in this rule reflect circumstances employment
authority,19 including to consider a clear congressional mandate with
authorization.
amending its regulations to ensure that respect to H1B beneficiaries who are
approved, longstanding visa petitions pursuing LPR status, but face long waits C. Immigration Fraud and National
remain valid in certain cases where the due to backlogs resulting from the Security Concerns
beneficiaries seek to change jobs or statutory limits on immigrant visas or
employers. 20 These executive actions 1. Description of Final Rule and
certain other adjudication or processing
do not impinge on Congresss legislative Changes From the NPRM
delays. Through the enactment of AC21,
role. Congress authorized these individuals DHSs core responsibilities include
Comment. Commenters stated that to remain in the United States beyond enhancing homeland security and
this rule would effectively increase the their initial 6-year period of authorized preventing terrorism, enforcing and
number of immigrant visas issued in admission. See AC21 104(c) and 106(a) administering the immigration laws,
excess of their respective annual caps. and (b). and ensuring the integrity of the
These commenters also expressed Finally, with regard to the concerns immigration system.21 When drafting
concern that the rule would increase the about this rule increasing the number of this rule, DHS carefully considered the
number of H1B workers who would be H1B visas that are exempt from the impact of the proposed regulatory
cap-exempt. Specifically, commenters annual limit, DHS notes that, for the provisions on the safety and security of
stated that this rule circumvents overall most part, this regulation codifies our nation and the integrity of the
caps on authorized visas through a two- longstanding policy and practice immigration system. DHS believes that
step process: (1) Authorizing an implementing the relevant provisions of the regulations as proposed
unlimited number of individuals to seek AC21. This rule generally codifies appropriately address these concerns
permanent residence in excess of the already existing policy interpretations and further believes that this final rule
cap on immigrant visas; and (2) giving identifying which employers are cap- will not compromise its vigilance.
these individuals (and their spouses and exempt under the H1B program and
DHS also includes revised definitions of 2. Public Comments and Responses

19 See Memo from Jeh Charles Johnson, Secretary related or affiliated nonprofit entity Comment. Several commenters raised
of Homeland Security, Policies Supporting U.S. and governmental research concerns about terrorism stemming from
High-Skilled Business and Workers (Nov. 20, organizations to clarify certain terms
2014)(Secretary Johnson Nov. 20, 2014 memo),
foreign nationals in various immigration
available at http://www.dhs.gov/sites/default/files/ and to avoid confusion. See IV, part J. statuses, and the adequacy of
publications/14_1120_memo_business_actions.pdf. In particular, although the revised
20 Id. definitions may expand the number of 21 See https://www.dhs.gov/our-mission.
background checks for those seeking to (a)(6), 236(c), 237(a)(1)(A) and (G), (a)(2) investigations into major fraud
acquire immigration status. and (a)(3), 316(a), 318, 8 U.S.C. 1101(f), conspiracies. Individuals with
Response. DHS takes its core mission 1154(c), 1182(a)(2) and (a)(6), 1226(c), information regarding fraud and abuse
to safeguard the homeland extremely 1227(a)(1)(A) and (G), (a)(2) and (a)(3), in the immigration benefits system are
seriously, and it has a number of 1427(a), 1429. USCIS adjudicators encouraged to contact FDNS at
mechanisms in place to detect fraud and receive training to recognize potential reportfraudtips@uscis.dhs.gov, by mail
security threats. Individuals requesting fraud indicators across all benefit types at 111 Massachusetts Ave. NW., Ste.
immigration benefits from USCIS are and the guidelines for referring cases of 7002, Mail Stop 2280, Washington, DC
subject to a variety of background and suspected fraud for further 205292280, or call (202) 5292280.
security checks, which vary depending investigation. DHS believes that existing rules and
on the benefit. USCIS created the Fraud Additionally, as provided under measures collectively provide adequate
Detection and National Security section 214(c)(12) of the INA, 8 U.S.C. tools to detect and combat fraud and
Directorate (FDNS) in part to investigate 1184(c)(12), a Fraud Prevention and abuse, and that this rulemaking does not
whether individuals or organizations Detection Fee must be paid by an require new or additional protections.
filing for immigration benefits pose a employer petitioning for a beneficiarys Accordingly, DHS has not made any
threat to national security, public safety, initial grant of H1B or L nonimmigrant changes in response to these comments.
or the integrity of the immigration classification, as well as for a
D. Petitions for Employment-Based
system. FDNS officers resolve beneficiary who is changing employers
Immigrants and Priority Date Retention
background check information and within these classifications. The INA
other concerns that surface during the requires fees deposited into the Fraud 1. Description of Final Rule and
processing of immigration benefit Prevention and Detection Account to be Changes From the NPRM
applications and petitions. Resolution of divided into thirds, and allocated to The final rule clarifies when priority
specific questions related to an DHS, DOL, and DOS. See INA 286(v); 8 dates are established for employment-
application or petition often requires U.S.C. 1356(v). DHS uses its portion of based immigrants and expands the
communication with law enforcement the fees to support activities related to ability of beneficiaries of approved
or intelligence agencies to make sure preventing and detecting fraud in the Form I140 petitions in the EB1, EB
that the information pertains to the delivery of all immigration benefit 2, and EB3 categories to retain their
applicant or petitioner and to determine types.23 priority dates for use with subsequently
whether the information would have an Additionally, FDNS currently filed Form I140 petitions. First, the
impact on his or her eligibility for the combats fraud and abuse across all final rule fills a hole in current
benefit. FDNS officers also check benefit typesincluding the EB1, EB regulations. Existing regulations
various databases and public 2, EB3, H1B, and L1 programsby establish that the priority date of an
information, as well as conduct other developing and maintaining efficient employment-based immigrant visa
administrative inquiries, including pre- and effective anti-fraud and screening petition accompanied by a labor
and post-adjudication site visits, to programs, leading information sharing certification is established when the
verify information provided on, and in and collaboration activities, and labor certification is accepted for
support of, applications and petitions. supporting the law enforcement and processing by DOL. Those regulations,
FDNS uses the Fraud Detection and intelligence communities. As mentioned however, do not indicate when the
National Security Data System (FDNS above, FDNSs primary mission is to priority date is established for an
DS) to identify fraud and track potential determine whether individuals or employment-based petition that is not
patterns. In addition, FDNS routinely organizations requesting immigration accompanied by a labor certification. To
works with U.S. Immigration and benefits pose a threat to national provide further clarity, this final rule
Customs Enforcement (ICE), U.S. security, public safety, or the integrity of provides, generally, that the priority
Customs and Border Protection (CBP), the nations immigration system. USCIS date of a Form I140 petition that does
and other law enforcement and verifies information and combats not require a labor certification is the
intelligence agencies, consistent with all immigration fraud using various tools, date such petition is properly filed with
relevant policies on information sharing including the Administrative Site Visit USCIS. See final 8 CFR 204.5(d).
and referrals.22 and Verification Program (ASVVP), Second, the final rule disallows
Comment. DHS received several under which FDNS conducts retention of the priority date of an
comments concerning alleged fraud in compliance review site visits for approved Form I140 petition if the
the EB1, H1B, and L1 visa programs, petitions in the H1B, L1, and religious approval of the petition is revoked
including falsification of worker worker programs. USCIS also conducts because of fraud, willful
qualifications and other misuses. These checks of various USCIS and other misrepresentation of a material fact, the
commenters requested that additional databases, including the FDNSDS and invalidation or revocation of a labor
measures be taken to combat fraud. the Validation Instrument for Business certification, or material error. See final
Response. DHS continually seeks to Enterprises (VIBE). USCIS has formed a 8 CFR 204.5(e). Third, the final rule
strengthen its abilities to detect and partnership with ICE, under which amends existing automatic revocation
combat immigration-related fraud. FDNS pursues administrative inquiries regulations to prevent Form I140
Possible consequences for fraud already into most application and petition fraud petitions that have been approved for
include detention and removal, and ICE conducts criminal 180 days or more from being
inadmissibility to the United States, automatically revoked based solely on
ineligibility for naturalization and other 23 Further information about USCIS use and
the withdrawal of the petition by the
benefits, and criminal prosecution. See, collection of fees can be found in March 2015
Congressional testimony available at https:// petitioner or the termination of the
e.g., INA 101(f), 204(c), 212(a)(2) and www.uscis.gov/tools/resources-congress/ petitioners business. See final 8 CFR
presentations-and-reports/oversight-us-citizenship- 205.1(a)(3)(iii)(C) and (D). In response to
22 Individuals may report suspicious activity to and-immigration-services-ensuring-agency-
ICE Homeland Security Investigations at priorities-comply-law-senate-committee-judiciary-
comments, the final rule also prevents
www.ice.gov/webform/hsi-tip-form or at (866) 347 subcommittee-immigration-and-national-interest- automatic revocation of approved
2423. march-2015. petitions that are withdrawn or where
the business terminates 180 days after this provision, DHS adopts this not believe it was fair to have an
an associated adjustment of status provision as proposed, including the individual who is recently entering a
application is filed. See id. These proposed technical edits to delete specific queue to receive a better
approved petitions will continue to be obsolete references and otherwise position than an individual who has
valid for priority date retention improve the readability of the rule. Id. been waiting in that queue for some
purposes, unless approval is revoked on time, even if the former individual has
ii. Retaining a Priority Date
other grounds specified in final 8 CFR been waiting in a different queue for a
204.5(e)(2).24 They also generally will Comment. Some commenters stated longer period of time.
remain valid for various other purposes that the policy that provides for the Response. The ability to retain
under immigration laws including: (1) retention of priority dates in cases in priority dates in cases in which a
Job portability under INA section 204(j); which an employer withdraws an worker is changing EB preference
(2) extensions of status for certain H1B approved petition already existed before categories has long been permitted
nonimmigrant workers under sections this rulemaking. Those commenters under existing regulations at 8 CFR
104(c) and 106(a) and (b) of AC21; and suggested that the rule thus provides no 204.5(e); it is not a policy newly
(3) eligibility for employment additional benefits to such beneficiaries afforded by this rulemaking. DHS
authorization in compelling as they await adjustment of status. believes that allowing certain
circumstances under final 8 CFR Response. DHS believes the final rule beneficiaries of multiple approved Form
204.5(p). clarifies and expands the ability of I140 petitions to continue to retain the
In addition, the final rule clarifies that beneficiaries of approved EB1, EB2, earliest established priority date for use
an approved Form I140 petition that is and EB3 Form I140 petitions to retain with subsequently approved Form I140
subject to withdrawal or business their priority dates for use with petitions, including cases of transfers
termination cannot on its own serve as subsequently filed EB1, EB2, and EB between EB preference categories,
a bona fide employment offer related to 3 Form I140 petitions. See final 8 CFR provides needed stability, job flexibility,
the petition. See final 8 CFR 204.5(e). The prior regulations and certainty for workers while they
205.1(a)(3)(iii)(C) and (D). To obtain an disallowed priority date retention in all await adjustment of status. The policy
immigrant visa or adjust status, instances in which approval of a Form also facilitates the ability of individuals
beneficiaries of these petitions must I140 petition was revoked. Thus, under to progress in their careers while they
have either new Form I140 petitions the prior regulations, revocation of a wait for visa availability. DHS believes
filed on their behalf, or, if eligible for Form I140 petition based on the policy is consistent with the goals of
job portability under section 204(j) of withdrawal by the petitioner would the AC21 statute and has accordingly
the INA, new offers of employment in have prevented the beneficiary of the chosen to maintain it.
the same or a similar occupational petition from retaining his or her Comment. A number of commenters
classification. See id.; final 8 CFR priority date. The NPRM proposed to supported the provisions in proposed 8
245.25(a)(2). change the prior regulations so that the CFR 205.1(a)(3)(iii)(C) and (D), which
DHS believes these regulatory changes beneficiary of a Form I140 petition can provide that approval of a Form I140
are critical to fully implementing the job retain the priority date of that petition petition will not be automatically
portability provisions of AC21. unless USCIS denies the petition or revoked based solely on withdrawal by
Therefore, the final rule retains these revokes the petitions approval due to: the petitioner or termination of the
proposals with minor modifications to (1) Fraud or a willful misrepresentation petitioners business if 180 days or more
reflect public comment summarized of a material fact; (2) revocation or have passed since petition approval.
below. invalidation of the labor certification The commenters said these provisions
associated with the petition or (3) a provide needed clarity and assurance to
2. Public Comments and Responses determination that there was a material workers about the retention of priority
i. Establishing a Priority Date error with regards to USCISs approval dates in cases involving withdrawal or
of the petition. See final 8 CFR business termination. Several other
Comment. Several commenters 204.5(e)(2). commenters requested that DHS allow
supported the proposed clarification of This change expands the ability of Form I140 petitions to remain valid
the methods for establishing priority beneficiaries to retain the priority dates and approved despite petitioner
dates. of approved Form I140 petitions, withdrawal or business termination
Response. DHS agrees with including but not limited to when a regardless of the amount of time that has
commenters and believes such petitions approval is revoked based passed since petition approval (i.e.,
clarification will provide increased solely on withdrawal of the petition. even for petitions that have not been
transparency and certainty for This provision improves the ability of approved for 180 days or more).
stakeholders. As noted above, the final certain workers to accept promotions, Response. DHS agrees that retaining
rule generally establishes that the change employers, or pursue other the NPRM proposal related to validity of
priority date of an employment-based employment opportunities without fear Form I140 petitions in the event of
immigrant visa petition that does not of losing their place in line for certain withdrawal or business termination will
require a labor certification is the date employment-based immigrant visas. bring clarity and assurance to workers
on which such petition is appropriately Comment. Although many that a petitions approval is not
filed with USCIS. See final 8 CFR commenters supported the retention of automatically revoked based solely on
204.5(d). Given commenters support of priority dates, one commenter objected an employers withdrawal of the
to the retention of the earliest priority petition or termination of the
24 The four grounds are (i) fraud, or a willful
misrepresentation of a material fact; (ii) revocation

date in cases in which a worker is employers business 180 days or more
by the Department of Labor of the approved shifting between employment-based after the petition is approved or the
permanent labor certification that accompanied the immigrant visa (EB) preference associated application for adjustment of
petition; (iii) invalidation by USCIS or the categories. The commenter believed the status is filed. This provision is
Department of State of the permanent labor
certification that accompanied the petition; and (iv)
provision was unfair to individuals who intended to provide greater stability and
a determination by USCIS that petition approval have been waiting in those EB flexibility to certain workers who are
was based on a material error. preference queues. The commenter did the beneficiaries of approved Form I
140 petitions and are well on the path Additionally, DHS believes the 180-day those individuals who are not yet
to obtaining LPR status in the United threshold protects against fraud and eligible for INA 204(j) portability from
States. misuse while providing important the automatic revocation of the approval
DHS notes, however, that commenters stability and flexibility to workers who of a Form I140 petition that had been
may have confused provisions that have been sponsored for permanent approved for 180 days or more.
govern the retention of priority dates residence. In addition to the period that Consistent with the intent of AC21 and
with provisions that govern the it typically takes for a petitioning DHS policy, DHS is revising the
retention of petition approval. As employer to obtain a labor certification regulatory language at 8 CFR
proposed and in this final rule, 8 CFR from DOL and approval of a Form I140 205.1(a)(3)(iii)(C) and (D) to make clear
204.5(e)(2) allows for the retention of petition from DHS, the 180-day that an approved Form I140 petition
the priority date of an approved EB1, requirement provides additional involving withdrawal or business
EB2, or EB3 Form I140 petition assurance that the petition was bona termination occurring 180 days or more
regardless of the amount of time that has fide when filed. The final rule, after either petition approval or the
passed since petition approval. As therefore, maintains Form I140 petition filing of an associated application for
discussed, once such a petition has been approval despite petitioner withdrawal adjustment of status remains approved,
approved, the beneficiary may retain or business termination when such unless its approval is revoked on other
that priority date for use with another petitions have been approved for 180 grounds. See final 8 CFR 205.1(a)(3)(iii).
EB1, EB2, or EB3 Form I140 days or more, or its associated Comment. One commenter
petition, so long as the approval of the adjustment of status application has recommended that the final rule require
former petition was not revoked due to: been pending for 180 days or more. See that the beneficiary of an employment-
(1) Fraud or a willful misrepresentation final 8 CFR 205.1(a)(3)(iii)(C) and (D). based Form I140 petition remain with
of a material fact; (2) revocation or Comment. One commenter suggested the petitioning employer for at least 3
invalidation of the labor certification changes to the regulatory text years before the employee is able to
associated with the petition; or (3) a concerning the requirement that the retain the priority date of that petition.
determination that there was a material Form I140 petition be approved for 180 The commenter stated that a 3-year
error with regards to USCISs approval days or more. Specifically, the mandatory stay would provide some
of the petition. See final 8 CFR commenter recommended amending the stability and security to petitioning
204.5(e)(2). In contrast, final 8 CFR text to make clear that the 180-day employers.
205.1(a)(3)(iii)(C) and (D) allow for threshold would not apply in cases in Response. DHS declines to adopt the
retention of a petitions approval, which an applicant has a pending commenters suggested mandatory
despite withdrawal or business Application to Register Permanent stay requirement as it is contrary to the
termination, but only if such Residence or Adjust Status (Form I485) principles and policy goals of this final
withdrawal or termination occurs 180 that may provide job portability under rule. Furthermore, DHS notes that Form
days or more after the approval or 180 INA 204(j). The commenter stated that, I140 petitions are for prospective
days or more after the associated as proposed, the regulation would create employment, and there is no guarantee
application for adjustment of status is a double waiting period in the that the beneficiary of an approved
filed. Thus, under this rule, the portability context, requiring the foreign Form I140 petition has or would be
beneficiary of a Form I140 petition national to wait 180 days from approval able to obtain work authorization to
may be able to retain his or her priority of the Form I140 petition and an commence employment with the
date even if approval of the petition is additional 180 days from filing of the petitioner prior to obtaining lawful
revoked due to withdrawal or business application of adjustment of status in permanent residence. In addition,
termination. order to be able to move to a new allowing priority date retention furthers
To further provide clarity in this area, position. The commenter believed this the goals of AC21 to grant stability,
DHS removed the phrase provided that outcome would be inconsistent with flexibility, and mobility to workers who
the revocation of a petitions approval congressional intent under AC21. are facing long waits for LPR status.
under this clause will not, by itself, Response. DHS thanks the commenter Comment. Several commenters
impact a beneficiarys ability to retain for identifying the potential for requested that the rules provision
his or her priority date under 8 CFR confusion given the text of proposed restricting revocation of a petitions
204.5(e) from proposed 8 CFR 205.1(a)(3)(iii)(C) and (D) and DHSs approval based on withdrawal or
205.1(a)(3)(iii)(C) and (D). DHS intended stated goal to codify and expand upon business termination apply retroactively
this phrase to simply restate that under its existing policy implementing INA to petitions whose approvals were
204.5(e), a priority date may be 204(j). DHS proposed to allow a Form I revoked prior to the rules publication.
retained, despite withdrawal or business 140 petition to remain valid for certain Response. DHS appreciates the
termination that occurs less than 180 purposes if such a petition was commenters suggestion; however, DHS
days after the petitions approval. DHS withdrawn or the petitioners business has determined that retroactive
is removing the phrase from the terminated 180 days or more after the application of this provision would be
proposed text because it could be Form I140 petition had been approved. problematic. Generally, there is a
construed as creating an unintended This provision was intended to build presumption against retroactive
exception to the priority date retention upon existing DHS policies that have application of new regulations. Cf.
provision. governed the validity of Form I140 Bowen v. Georgetown Univ. Hosp., 488
DHS declines to adopt commenters petitions in the event of withdrawal or U.S. 204 (1988). Moreover, in this case,
proposal that a Form I140 petition business termination before and after retroactive application of the revised
remains approved if the withdrawal or beneficiaries are eligible to change jobs automatic revocation provision would
business termination occurs at any time or employers under INA 204(j). DHS did impose a disproportionate operational
before the Form I140 has been not intend that its regulatory proposal burden on USCIS, as it would require
approved for at least 180 days. DHS would modify the existing timeframe significant manual work. USCIS systems
believes that the 180-day threshold is before an individual would become cannot be queried based on the specific
consistent with and furthers the goals of eligible to port under INA 204(j); rather, reason(s) for revocation, and USCIS
job portability under INA 204(j). this provision was intended to protect would be required to manually identify
and review these cases in order to verify situations in which an adjudicator Comment. Some commenters
the reason(s) for revocation, thus relied on an inaccurate employer requested that beneficiaries of approved
creating a highly labor-intensive process identification number and associated Form I140 petitions who are not yet
that would significantly strain USCIS financial information that did not eligible for 204(j) portability be
resources. Therefore, the final 8 CFR pertain to the petitioner for purposes of permitted to change jobs and adjust
205.1(a)(3)(iii)(C) and (D) provisions establishing its continuing ability to pay status to lawful permanent residence
will apply prospectively from the the proffered wage; information later without the requirement of obtaining a
effective date of this final rule. comes to light indicating that the new application for labor certification
petitioner did not establish the ability to and a new approved Form I140
iii. Priority Date Not Retained if
pay under the applicable regulatory petition. Some who advocated for this
Approval Revoked for Fraud, Willful
criteria; or an adjudicator finds evidence change noted that the ability to reuse or
Misrepresentation, DOL Revocation,
in a subsequent related matter that the port an approved Form I140 petition
Invalidation by USCIS or DOS, Material
beneficiary did not have the education should be available after the initial
Error, or Petition Denial
or experience required for the position petition has been approved for 180 days
Comment. Some commenters offered. DHS declines to accept or more, and others requested that
supported the rules requirement that commenters recommendations that the portability be allowed immediately after
priority dates will not be retained in final regulation remove the error the petitions approval. Similar to job
cases of fraud, willful standard in its entirety because of the portability under INA 204(j) in certain
misrepresentation, revocation or need to take appropriate action in cases regards, these and other commenters
invalidation of the labor certification, a in which the petition was not suggested that beneficiaries of approved
determination that petition approval approvable in the first instance. Form I140 petitions should be allowed
was the result of an error, or the denial Furthermore, it should be noted that the to change jobs, file a Form I485
of the petition. Other commenters scope of the material error standard application and adjust status to lawful
opposed the inability to retain priority pertains only to whether the priority permanent residence on the basis of the
dates where a Form I140 petitions date is retained based on a USCIS original Form I140 petition as long as
approval has been revoked based on a revocation of the petition approval. the new job is in the same or a similar
determination that USCIS erroneously occupation as the job described in the
Comment. One commenter suggested
approved the petition. One commenter approved Form I140 petition. Some
that USCIS allow the retention of Form
requested that DHS change the standard commenters stated that there is an
for revoking petition approval in error to I140 priority dates even in cases in
which it is later discovered that the increase in time and monetary costs
material error to remain consistent associated with multiple labor
with other USCIS policies in cases petitioner made material
misrepresentations on the original certification filings. Most of the
where DHSs error in a prior commenters agreed that very few
adjudication requires review of that petition and the petitions approval is
revoked, as well as cases in which the benefits were provided by requiring a
adjudicatory outcome. new labor certification. Commenters
Response. DHS agrees that it is petitions approval is revoked based on
also expressed that recertification
important for the integrity of the USCIS errorso long as it can be
additionally deters employers from
immigration system not to retain a reasonably verified that the beneficiary
sponsoring current foreign worker
priority date in cases in which the had no involvement in the
employees who are beneficiaries of
approval of a Form I140 petition is misrepresentation or the error later
Form I140 petitions based on new jobs.
revoked for fraud, willful discovered by USCIS.
One commenter urged DHS to allow a
misrepresentation of a material fact, the Response. DHS understands that withdrawn or revoked Form I140
invalidation or revocation of a labor revocation of long approved Form I140 petition to remain valid for the purposes
certification, or USCIS error. Based on petitions due to the later discovery of of obtaining an immigrant visa, in order
feedback from commenters, however, willful misrepresentation(s) committed to fully implement Congresss intent in
DHS has determined that the text of the by the petitioner, but that are passing AC21.
proposed rule at 204.5(e)(2)(iv) that unbeknownst to the beneficiary, can Response. A foreign worker may
reads, [a] determination by USCIS that negatively impact the beneficiary by obtain an employment-based immigrant
petition approval was in error, needs to causing the loss of his or her priority visa only if he or she is the beneficiary
be clarified. In the final rule, that text date and, therefore, the beneficiarys of an approved employment-based
is amended to read, [a] determination place in line for an immigrant visa. The immigrant visa petition. See INA 204(b),
by USCIS that petition approval was revocation of the approval of a long 8 U.S.C. 1154(b). In this final rule, DHS
based on a material error in order to approved Form I140 petition due to is allowing certain approved Form I140
clarify that a priority date will only be material errors that are not the fault of petitions to remain approved for various
lost in those cases in which the error the beneficiary can also negatively purposes despite withdrawal or
leading to revocation involves the impact the beneficiary. DHS, however, business termination. However, such a
misapplication of a statutory or believes it would be inappropriate to petition may not be used to obtain
regulatory requirement to the facts at allow a Form I140 petition that had its lawful permanent residence, unless it
hand. See final 8 CFR 204.5(e)(2)(iv). approval revoked for fraud or willful meets the requirements of INA 204(j).
The change to the material error misrepresentation of a material fact, or With respect to obtaining lawful
standard is consistent with other USCIS because the Form I140 petition was not permanent residence under the EB2
policy that addresses agency deference eligible for approval in the first place, to and EB3 classifications, the INA
to prior adjudicatory decisions.25 confer a priority date. Allowing the requires that the worker be the
Examples of material errors include beneficiary of such petition to remain in beneficiary of a valid Form I140
line ahead of other individuals who are petition, which generally must be
25 See USCIS Memorandum from William Yates,
the beneficiaries of properly approved supported by a valid labor certification
The Significance of a Prior CIS Approval of a Form I140 petitions would be contrary at the time of adjustment of status. See
Nonimmigrant Petition in the Context of a
Subsequent Determination Regarding Eligibility for to DHSs goal of upholding the integrity INA 203(b)(2), (3); 204(a)(1)(F); and
Extension of Petition Validity (Apr. 24, 2004). of the immigration system. 212(a)(5)(A) and (D), 8 U.S.C. 1153(b)(2),
(3); 1154(a)(1)(F); 1182(a)(5)(A) and (D). approved Form I140 petitions to retain extend H1B status beyond the 6-year
Outside of the 204(j) context, an their priority dates in certain situations maximum period and to port to a same
approved Form I140 petition filed by and allowing certain Form I140 or similar occupation under INA
an employer that no longer intends to petitions to remain valid, including for section 204(j). Commenters also cited to
employ the worker upon approval of the purposes of section 204(j) portability, various recent federal cases that have
Form I485 application, whether notwithstanding withdrawal of the supported the commenters
presently or at any time in the future, petition or termination of the interpretation of AC21.
does not represent a bona fide job offer petitioners business, as described Response. DHS appreciates the
and, therefore, is not sufficient to above.26 concerns raised by these comments.
support an application for adjustment of While DHS is unable to address these
iv. Beneficiary Standing To Challenge
status. concerns in this final rule because they
INA section 212(a)(5)(A) and (D) the Revocation of an Employment-Based
are outside the scope of this rulemaking,
generally prohibits any foreign worker Immigrant Visa Petitions Approval
DHS is considering separate
seeking to perform skilled or unskilled Comment. Several commenters administrative action outside of this
labor from being admitted to the United expressed concern that individual final rule to address these concerns.
States under the EB2 and EB3 beneficiaries of Form I140 petitions are
immigrant visa classifications unless the not provided notice when USCIS seeks E. Continuing and Bona Fide Job Offer
Secretary of Labor has determined and to revoke the approval of those and Supplement J Form
certified that there are not sufficient petitions. The commenters stated that 1. Description of Final Rule and
workers who are able, willing, qualified, this policy prevented beneficiaries from Changes From NPRM
and available to perform that work at checking the status of their pending
Form I140 petitions and providing the The final rule at 8 CFR 245.25 codifies
the location the foreign worker will
evidence needed to avail themselves of DHS policy and practice requiring that
perform the work and that the
employment of that foreign worker will AC21 portability. The commenters a foreign worker seeking to adjust his or
not adversely affect the wages and stated that under USCISs current her status to that of an LPR must have
working conditions of similarly situated practice, a beneficiary may be unaware a valid offer of employment at the time
U.S. workers. Under current DOL that approval of his or her Form I140 the Form I485 application is filed and
regulations, a permanent labor petition has been revoked until his or adjudicated. DHS at final 8 CFR
certification remains valid only for the her application for adjustment of status 245.25(a)(2) codifies the existing policy
particular job opportunity, for the is denied. The commenters stated that and practice to determine eligibility to
individual named on the labor not providing beneficiaries with notice adjust status based on a request to port
certification, and for the area of and an opportunity to respond in such under section 204(j) of the INA. In the
intended employment stated on the cases raises serious issues of final rule at 8 CFR 245.25(a)(2)(ii)(A)
application for permanent labor fundamental fairness that could be and (B), DHS reaffirms that a qualifying
certification. See 20 CFR 656.30(c)(2). remedied by permitting beneficiaries of immigrant visa petition has to be
However, section 106(c)(2) of AC21 petitions that may afford portability approved before DHS examines a
created an exception to this under section 204(j) to participate in portability request under INA 204(j) and
admissibility requirement, by allowing visa petition proceedings, consistent determines an individuals eligibility or
an approved Form I140 petition with Congresss intent when it enacted continued eligibility to adjust status
supported by the associated labor AC21. The commenters urged DHS to based on the underlying visa petition.
certification to remain valid for certain undertake rulemaking to bring notice DHS also codifies current practice
long-delayed adjustment applicants regulations in line with the realities of regarding the adjudication of portability
with respect to a new job accepted by todays AC21 statutory scheme. Finally, requests when the Form I140 petition
the individual after the individual a commenter stated that beneficiaries of is still pending at the time the
changes jobs or employers if the new job Form I140 petitions have interests application for adjustment of status has
is in the same or a similar occupational equal to or greater than those of been pending for 180 days or more in
classification as the job for which the petitioners, including because final 8 CFR 245.25(a)(2)(ii)(B).
certification was issued. INA revocation impacts beneficiaries ability Based on its program experience in
212(a)(5)(A)(iv), 8 U.S.C. to retain priority dates, their adjudicating adjustment of status
1182(a)(5)(A)(iv). DHS does not have admissibility, their eligibility to have applications, USCIS determined that
authority to regulate the terms and immigrant visa petitions approved on certain threshold evidence regarding the
requirements of these labor their behalf, and their eligibility for job offer is required in all cases to
certifications and therefore cannot adjustment of status under section successfully determine eligibility for
prescribe what is necessary for the labor 245(i) of the INA, 8 U.S.C. 1255(i). The adjustment of status based on an
certification to remain valid even for commenter added that the enactment of employment-based immigrant visa
long-delayed applicants for adjustment AC21 had altered the analysis of which petition and facilitate the administrative
of status, although DHS does have individuals should be considered processing of INA 204(j) porting
authority to invalidate labor interested parties before USCIS on requests. USCIS has consequently
certifications for fraud or willful various issues, including the ability to developed a new formSupplement J to
misrepresentation. The INA designates Form I485, Confirmation of Bona Fide
DOL as the federal department 26 The priority date of the earliest petition will be Job Offer or Request for Job Portability
responsible for making permanent labor preserved in cases where the Form I140 petition Under INA Section 204(j) (Supplement
has been approved, no matter the amount of time

certification determinations. that has passed since the approval, subject to the
J)to standardize the collection of
While DHS cannot expand portability restrictions in 8 CFR 204.5(e)(2). See final 8 CFR such information. The offer of
beyond the INA 204(j) context, the final 204.5(e)(1). The priority date can be retained even employment may either be the original
rule does provide some additional if approval is subsequently revoked, unless it is job offer or, pursuant to INA 204(j), a
revoked for fraud, willful misrepresentation of a
flexibility and stability for individuals material fact, the invalidation or revocation of a
new offer of employment, including
who may not be eligible for INA 204(j) labor certification, or USCIS material error as qualifying self-employment, that is in
portability, by allowing beneficiaries of required by 8 CFR 204.5(e)(2). the same or similar occupational
classification as the original job consider implementing a fee in the 8 CFR 245.25(a)(2)(ii)(A) and (B), DHS
offer.27 See final 8 CFR 245.25(a)(1)(2). future. reaffirms that a qualifying immigrant
In the final rule at 8 CFR 245.25(a) and visa petition must be approved before
(b), DHS clarifies that it may require DHS examines a portability request
individuals to use Supplement J, or i. Portability Under INA 204(j) under INA 204(j) and determines an
successor form, to confirm existing or Comment. One commenter requested individuals eligibility or continued
new job offers prior to adjudication of that DHS clarify regulatory language to eligibility to adjust status on the basis of
an application to adjust status. DHS also reflect current practice that permits a the underlying visa petition. DHS also
eliminates duplicative evidentiary foreign national whose application for sets forth in this final rule how USCIS
provisions that were proposed in 8 CFR adjustment of status has been pending will assess specific Form I140 petition
245.25(b). As amended, the final 8 CFR for 180 days or more to request eligibility requirements, including the
245.25(a) makes clear that any portability under INA 204(j) in cases in petitioners ability to pay, when a
supporting material and credible which the Form I140 petition porting request has been made on a
documentary evidence may be underlying the application for pending Form I140 petition.
submitted along with Supplement J, adjustment of status is not yet approved. First, in accordance with existing
according to the form instructions. The The commenter noted that current practice, USCIS will only adjudicate a
definition of same or similar policy allows for such portability qualifying Form I140 petition in
occupational classification that was requests to be made provided the Form accordance with the standards
proposed in 8 CFR 245.25(c) is being I140 petition was approvable based on described in final 8 CFR 245.25(a)(2)(ii)
retained without change in the the facts in existence at the time of when USCIS has been notified that the
redesignated final 8 CFR 245.25(b). filing, with the exception of the beneficiary intends to port to a new job
The use of Supplement J will ensure petitioners ability to pay the offered pursuant to INA 204(j). As indicated in
uniformity in the collection of wage. The commenter stated that this the precedent decision, Matter of Al
information and submission of initial has been USCISs policy since 2005, Wazzan, 25 I&N Dec. 359, 367 (BIA
evidence. Supplement J will be used to when DHS confirmed through policy 2010), the qualifying immigrant visa
assist USCIS, as appropriate, in guidance that the 180-day portability petition
confirming that the job offer described clock under INA 204(j) begins to run must have been filed for an alien who is
in a Form I140 petition is still available when the Form I485 application is entitled to the requested classification and
at the time an individual files an filed, not when the Form I140 petition that petition must have been approved by
is approved. This commenter cited to a USCIS officer pursuant to his or her
application for adjustment of status, or authority under the Act . . . [A] petition is
a qualifying job offer otherwise the Aytes Memo, Interim guidance for
not made valid merely through the act of
continues to be available to the processing I140 employment-based filing the petition with USCIS or through the
individual before final processing of his immigrant petitions and I485 and H passage of 180 days.
or her application for adjustment of 1B petitions affected by the American
Competitiveness in the Twenty-First The burden is on the applicant to
status. Supplement J also will be used demonstrate eligibility or otherwise
by applicants for adjustment of status to Century Act (AC21) (Public Law 106
313) (May 12, 2005, revised Dec. 27, maintain eligibility for adjustment of
request job portability, and by USCIS to status to lawful permanent
determine, among other things, whether 2005) (Aytes 2005 memo) at 2, 45.
Response. DHS agrees that residence.29 See INA sections 204(e) and
a new offer of employment is in the 291, 8 U.S.C. 1154(e) and 1361; see also
same or a similar occupational clarification is needed in the final rule
regarding DHSs practice for qualifying Tongatapu Woodcraft of Hawaii, Ltd. v.
classification as the job offer listed in
the Form I140 petition. Form I140 petitions that remain
pending when the beneficiarys governing adjustment of status consistent with
Supplement J collects necessary longstanding agency policy. Id. at 81915.
application for adjustment of status has
information about the job offer and 29 USCIS may inquire at any time whether an
been pending for 180 days or more. As applicant for adjustment of status has, or continues
includes attestations from the foreign
noted by the commenter, there may be to have, a qualifying job offer until the applicant
national and employer regarding ultimately obtains lawful permanent residence. See
instances in which an individual can
essential elements of the portability INA sections 204(a)(1)(F), (b), (e), (j) and 212(a)(5),
request job portability pursuant to INA
request. In a number of ways, 8 U.S.C. 1154(a)(1)(F), (b), (e), (j), and 1182(a)(5); cf.
204(j) because the workers Form I485 Yui Sing Tse v. INS, 596 F.2d 831, 835 (9th Cir.
Supplement J will improve the
application has been pending for 180 1979) (finding that an alien need not intend to
processing of porting requests submitted remain at the certified job forever, but at the time
days or more, but the Form I140
under INA 204(j). As further described of obtaining lawful permanent resident status, both
petition has not yet been adjudicated. In
in the responses to comments below, the employer and the alien must intend that the
such cases, however, the qualifying alien be employed in the certified job); Matter of
DHS is making a revision to the
Form I140 petition must be approved Danquah, 16 I&N Dec. 191 (BIA 1975) (adjustment
Supplement J instructions to clarify that of status denied based on the ground that the labor
before a portability request under INA
individuals applying for adjustment of certification was no longer valid because the foreign
204(j) may be approved.
status on the basis of a national interest In response to this comment, DHS
national was unable to assume the position
waiver (NIW), as well as aliens of specified in the labor certification prior to obtaining
amended proposed 8 CFR 245.25(a)(2) adjustment of status). USCIS may become aware of
extraordinary ability, are not required to to reflect DHSs current policy and certain information that raises questions about
use Supplement J. Currently, USCIS is longstanding practice related to such whether an applicant for adjustment of status
not adding an extra fee for submission pending Form I140 petitions.28 In final
continues to have a qualifying job offer (e.g., a letter
of this new supplement, but may from the petitioner requesting the withdrawal of the
petition). In this and similar instances when the

28 As indicated in the proposed rule, regulatory Form I140 petition has already been approved,
27 For additional information on USCIS policy provisions would largely conform DHS regulations USCIS may issue a Notice of Intent to Deny (NOID)
regarding the parameters of porting to self- to longstanding agency policies and procedures or Request for Evidence (RFE) to the applicant to
employment, please see USCIS memorandum, established in response to certain sections of make sure that the applicant has a new job offer that
Determining Whether a New Job is in the Same [ACWIA] and [AC21]. See 80 FR 81899, 81901 preserves his or her eligibility to become a lawful
or a Similar Occupational Classification for (Dec. 31, 2015). The new regulatory provision under permanent resident in connection with the same
Purposes of Section 204(j) Job Portability (Mar. 18, 8 CFR 245.25(a)(2)(ii) is one such provision that Form I485 application and based on the same
2016) (Same or Similar Memo March 2016). update[s] and conform[s] [DHSs] regulations qualifying petition pursuant to INA 204(j).
Feldman, 736 F.2d 1305, 1308 (9th Cir. of filing and until the foreign nationals workers who cannot immediately adjust
1984) (stating that the applicant bears application for adjustment of status has status based on backlogs to move to new
the ultimate burden of proving been pending for 180 days. See final 8 employment while their applications for
eligibility and that this burden is not CFR 245.25(a)(2)(ii)(B)(2). Consistent adjustment of status remain pending.
discharged until lawful permanent with current policy and practice, DHS Accordingly, for petitioners to satisfy
residence is granted); 8 CFR 103.2(b)(1). will review the pending petition to the ability to pay requirement in this
Second, in determining whether a determine whether the preponderance limited context, eligibility will be
Form I140 petitioner meets the ability of the evidence establishes that the deemed established through
to pay requirements under 8 CFR petition is approvable or would have adjudication for purposes of 8 CFR
204.5(g)(2) for a pending petition that a been approvable had it been adjudicated 103.2(b)(1) if the ability to pay existed
beneficiary seeks to rely upon for 204(j) before the associated application for at the time the priority date is
portability, DHS reviews the facts in adjustment of status has been pending established through time of the
existence at the time of filing. See final for 180 days or more.31 For example, if petitions filing. See 8 CFR 204.5(g)(2).
8 CFR 245.25(a)(2)(ii)(B)(1).30 Thus, DHS receives a written withdrawal Similarly, again in this limited INA
during the adjudication of the petition, request from the petitioner, or the 204(j) context, DHS is defining
DHS reviews any initial evidence and petitioners business terminates, after eligibility for all other Form I140
responses to requests for evidence the associated application for eligibility requirements for purposes of
(RFEs), notices of intent to deny adjustment of status has been pending 8 CFR 103.2(b)(1) (i.e., separate and
(NOIDs), or any other requests for more for 180 days or more, DHS will not deny apart from the ability to pay
information that may have been issued, the petition based solely on those requirement) as being established if
to determine whether the petitioner met reasons.32 DHS, however, will deny a such eligibility can be demonstrated at
the ability to pay requirement as of the Form I140 petition if DHS receives the time of filing through the date the
date of the filing of the petition. To written withdrawal request, or a associated application for adjustment of
effectuate the intent of INA 204(j) to business termination occurs, before the status has been pending for 180 days,
enable workers to change employment, associated application for adjustment of instead of the date the final decision is
DHS looks only at the facts existing at status has been pending for 180 days, issued.
the time of filing to determine whether even when DHS adjudicates the petition DHS believes that this specific
the original petitioner has the ability to after the associated application for adjudicatory practice is consistent with
pay, notwithstanding the language in 8 adjustment of status has been pending the requirements in 8 CFR 103.2(b)(1),33
CFR 204.5(g)(2), which otherwise for 180 days or more. accommodates the circumstances
requires that a petitioner has continuing Section 8 CFR 245.25(a)(2), as contemplated in final 8 CFR
ability to pay after filing the petition amended in this final rule, is consistent 245.25(a)(2)(ii), and is important to
and until the beneficiary obtains lawful with AC21, existing regulations, USCIS ensure that the goals of AC21 are met.
permanent residence. To require that policies implementing AC21, and As a practical matter, petitioners have
the original Form I140 petitioner current practice. Specifically, DHS reads diminished incentives to address
demonstrate a continuing ability to pay 8 CFR 245.25(a)(2), as amended in this inquiries regarding qualifying Form I
when the beneficiary no longer intends final rule, in harmony with 8 CFR 140 petitions once the beneficiaries
to work for that petitioner is illogical 103.2(b)(1), which requires an applicant have a new job offer that may qualify for
and would create an incongruous or petitioner to establish that he or she INA 204(j) portability and the relevant
obstacle for the beneficiary to change is eligible for the requested benefit at focus has shifted to whether the new job
jobs, thus unnecessarily undermining the time of filing the benefit request and offer meets the requirements of INA
the purpose of INA 204(j). USCIS will must continue to be eligible through 204(j). Accordingly, denying a
not review the original petitioners adjudication. In cases involving a qualifying Form I140 petition for either
continuing ability to pay after the filing request for INA 204(j) portability that is ability to pay issues that occur after the
date of the qualifying petition before it filed before USCIS adjudicates the Form time of filing, or for other petition
may approve such petition and then I140 petition, DHS will assess a eligibility issues that transpire after the
review a portability request. Under this petitioners ability to pay as of the date associated application for adjustment of
final rule, USCIS will continue to the Form I140 petition was filed and
determine whether the subsequent offer all other issues as of the date on which 33 The current language in 8 CFR 103.2(b)(1)
of employment by an employer that is the application for adjustment of status requires in pertinent part that a petitioner
establish that he or she is eligible for the requested
different from, or even the same as, the was pending 180 days, regardless of the benefit at the time of filing the benefit request and
employer in the original Form I140 date on which the petition is actually must continue to be eligible through adjudication.
petition is bona fide. adjudicated. DHS believes this policy This policy was codified through a final rule (with
Third, DHS is clarifying for INA 204(j) meaningfully implements congressional request for comments) in 2011 in which DHS noted
the longstanding policy and practice, as well as a
portability purposes that a qualifying intent in enacting INA 204(j) to allow basic tenet of administrative law, [ ] that the
Form I140 petition will be approved if decision in a particular case is based on the
eligibility requirements (separate and 31 See Aytes 2005 Memo, at 1 (stating in the administrative record that exists at the time the
apart from the ability to pay response to Section I, Question 1 that if it is decision is rendered. 76 FR 53764, 53770 (Aug. 29,
discovered that a beneficiary has ported under an 2011) (citing Citizens to Preserve Overton Park v.
requirement) have been met at the time unapproved Form I140 petition and Form I485 Volpe, 401 U.S. 402 (1972)). The practice that DHS
application that has been pending for 180 days or currently outlines in 8 CFR 245.25(a)(2)(ii), in
30 See Aytes 2005 Memo, at 2; Donald Neufeld more, the adjudicator should, among other things, which DHS interprets eligibility through
Memorandum Supplemental Guidance Relating to review the pending I140 petition to determine if adjudication in 8 CFR 103.2(b)(1) as eligibility at
Processing Forms I140 Employment-Based the preponderance of the evidence establishes that the time of filing (for the ability to pay requirement)
Immigrant Petitions and I129 H1B Petitions, and the case is approvable or would have been or eligibility at the time of filing and up to the day
Form I485 Adjustment Applications Affected by approvable had it been adjudicated within 180 before the associated application for adjustment of
the American Competitiveness in the Twenty-First days). status has been pending for 180 days (for other
Century Act of 2000 (AC21) (Pub. L. 106313), as 32 Under current INA 204(j) portability practice, requirements separate and apart from the ability to
amended, and the American Competitiveness and DHS considers the date it receives a withdrawal pay requirement), were in place since at least 2005,
Workforce Improvement Act of 1998 (ACWIA), Title request from the petitioner as the date of are consistent with the AC21 statute, and were not
IV of Div. C. of Public Law 105277 at 9, (May 30, withdrawal regardless of the date on which DHS superseded by the amendments to 8 CFR 103.2(b)(1)
2008) (Neufeld May 2008 Memo). adjudicates the Form I140 petition. in 2011.
status has been pending for 180 days or updated only once every 8 years, a the statutory requirements related to
more, would be contrary to a primary schedule that is often outpaced by the labor certification approval.
goal of AC21. Such a policy would in speed of innovation, particularly with Response. DHS disagrees with these
significant part defeat the aim to allow STEM occupations. Another commenter comments. Congress did not define the
individuals the ability to change jobs described concern that adjudicators will term same or similar, thus delegating
and benefit from INA 204(j) so long as rely exclusively on the SOC codes when that responsibility and authority to
their associated application for determining whether two jobs are in the DHS. Through this final rule, DHS
adjustment of status has been pending same or similar occupational adopts a definition that is consistent
for 180 days or more. DHS notes that classification(s) (same or similar with the statutory purpose underlying
this does not prevent DHS from determinations). INA 204(j), and that reflects both
requiring a response from the Form I Response. DHS agrees with the common dictionary definitions and
140 petitioner and taking appropriate commenters and, in this final rule, longstanding DHS practice and
action on a request for evidence or removes the specific reference to SOC experience in this area. As has long
notice of intent to deny issued before codes in the final rule. See final 8 CFR been the case, to determine whether two
the associated application for 245.25. This change from the proposed jobs are in the same occupational
adjustment of status has been pending rule is consistent with DHS policy classification, USCIS looks to whether
for 180 days or more or, if appropriate under which SOC codes are just one the jobs are identical or resembling
for reasons described below, after that factor that may be considered, in in every relevant respect. 34 To
period. conjunction with other material determine whether two jobs are in
Finally, DHS maintains through this evidence, when making the portability similar occupational classifications,
final rule its existing policy and practice determination. To demonstrate that two USCIS looks to whether the jobs share
to deny a pending Form I140 petition jobs are in the same or similar essential qualities or have a marked
at any time, and even after the occupational classification(s) for resemblance or likeness. 35
associated application for adjustment of purposes of INA 204(j) portability, DHS recognizes that individuals earn
status has been pending for 180 days or applicants and/or their employers opportunities for career advancement as
more, if the approval of such petition is should submit all relevant evidence. they gain experience over time. Cases
inconsistent with a statutory Such evidence includes, but is not involving career progression must be
requirement in the INA or other law. limited to, a description of the job considered under the totality of the
See final 8 CFR 245.25(a)(2)(ii)(B)(2). duties for the new position; the circumstances to determine whether the
For example, DHS will deny an necessary skills, experience, education, applicant has established by a
otherwise qualifying Form I140 training, licenses or certifications preponderance of the evidence that the
petition at any time if the beneficiary required for the new job; the wages relevant positions are in similar
seeks or has sought LPR status through offered for the new job; and any other occupational classifications for INA
a marriage that has been determined by material and credible evidence 204(j) portability purposes. For further
DHS to have been entered into for the submitted by the applicant. Applicants guidance on the DHS analysis of cases
purpose of evading the immigration or their employers may also reference involving career progression,
laws. See INA 204(c), 8 U.S.C. 1154(c). DOLs labor market expertise as commenters are encouraged to read the
DHS also will deny, at any time, a reflected in its SOC system, which is March 16, 2016, USCIS policy
pending Form I140 petition that used to organize occupational data and memorandum, Determining Whether a
involves a petitioner or an employer classify workers into distinct New Job is in the Same or a Similar
that has been debarred, under INA occupational categories, as well as other Occupational Classification for
212(n)(2)(C)(i) and (ii), 8 U.S.C. relevant and credible information, when Purposes of Section 204(j) Job
1182(n)(2)(C)(i) and (ii), even when the making portability determinations. Portability. 36
debarment occurs after the filing of the DHS recognizes that variations in job
ii. Concerns Raised Regarding
petition. Similarly, DHS will deny a duties are natural and may occur
Supplement J
Form I140 petition, at any time, if the because they involve employers in
beneficiary is required by statute to be different economic sectors. This does Comment. DHS received a number of
licensed to perform his or her job and not necessarily preclude two positions comments on the new Supplement J to
the beneficiary loses such licensure from being in similar occupational Form I485, many of which came from
before the petition is adjudicated. See classifications for purposes of 204(j) individuals who are currently in the
e.g., INA 212(a)(5)(B) and (C), 8 U.S.C. portability. SOC codes provide a process of pursuing lawful permanent
1182(a)(5)(B) and (C). DHS notes that measure of objectivity in such residence as beneficiaries of Form I140
these examples do not encompass all assessments and thus can help address petitions. Many commenters stated that
scenarios when a statute requires DHS uncertainty in the portability the Supplement J requirement is an
to deny a pending Form I140 petition. determination process. unnecessary burden that will make
DHS will review such petitions on a Comment. Several commenters stated portability requests under INA 204(j)
case-by-case basis. that the definition of same or similar more complex and cumbersome.
Comment. Some commenters in proposed 8 CFR 245.25(c) is overly Commenters also stated that the
requested that DHS eliminate references restrictive and will particularly cause requirement would create uncertainty
to the Department of Labors Standard difficulty for workers seeking and confusion among employers and
Occupational Classification (SOC) promotions because the definition may applicants. Commenters noted that
system in the regulatory text governing not cover moves to certain higher level employers may understand the
the adjudication of porting requests. positions. In contrast, another Supplement J requirement as a

One commenter noted that occupations commenter stated that the proposed
34 For additional information on USCIS policy
that rely on similar skills, experience, definition is arbitrary and capricious,
regarding the parameters of porting to same or
and education are often classified in and that the definition effectively similar employment, please see Same or Similar
disparate major groups within the SOC lowers the standard set in prior DHS Memo March 2016.
structure. This commenter was also guidance. That commenter believed the 35 Id.
concerned that the SOC system is new definition would effectively nullify 36 Id.
disincentive to retaining or hiring new correspondence. Among other things, cases to submit job offer or employment
foreign nationals, as the requirement Supplement J provides a consistent confirmation letters supporting INA
would increase administrative burdens format and uniform content, which 204(j) portability. For this same reason,
and legal risks for employers in an allows DHS to more easily find and DHS believes the Supplement J
already time-consuming and expensive capture necessary information as well as requirement will also not impose
process. Commenters stated that match the form with the corresponding significant new legal costs, including by
employers unfamiliar with the INA Form I485 application. Because there increasing the likelihood that
204(j) process may be unwilling to is no standardized form currently individuals or employers will need to
cooperate in the completion of associated with porting requests, DHS consult with lawyers.38
Supplement J. They also noted that the contract and records staff cannot While DHS presents a sensitivity
Supplement J requirement may require efficiently enter data associated with analysis for the potential annual costs of
employers to draft new company those requests. With the Supplement J, Supplement J in the RIA as ranging from
policies concerning the supplement, standardized data can more readily be $126,598 to $4,636,448, DHS believes
thus further increasing administrative entered and tracked in agency electronic that the submission of Supplement J
burdens. Some commenters stated that systems. This, in turn, will greatly does not impose significant additional
the Supplement J requirement would enhance USCISs ability to monitor the burdens on USCIS or employers because
disrupt employers existing procedures status of portability requests, track file applicants are already required to
covering individuals seeking portability movement, and otherwise improve submit letters from employers when
under INA 204(j). accountability and transparency requesting INA 204(j) portability. DHS
Response. The majority of regarding USCISs processing of does not have information on how long
commenters that opposed the portability requests. it currently takes to complete
Supplement J requirement argued that it DHS does not agree with several employment confirmation or job offer
would be burdensome and complex, but commenters statements that the letters, so DHS cannot conduct side-by-
they did not provide detailed Supplement J requirement will increase side comparisons. However, anecdotal
explanations, analysis, or evidence uncertainty with respect to job input suggests that, notwithstanding
supporting these assertions. Individuals portability requests. Rather, DHS concern to the contrary, the Supplement
requesting job portability under INA believes that Supplement J will reduce J requirement in fact is roughly
204(j) have typically complied with that past uncertainties by facilitating (1) the equivalent to the letter-writing process,
provision by submitting job offer letters tracking of portability requests through as employment confirmation and job
describing the new job offer and how the adjudication process, (2) the offer letters currently provide
that new job is in the same or a similar provision of timely acknowledgements information similar to that requested in
occupational classification as the job and notices, and (3) the ability of Supplement J.
offer listed in the underlying Form I individuals to know if their new job is Additionally, USCIS recognizes in the
140 petition. The Supplement J in a same or a similar occupational RIA that the simplified and
requirement is intended to replace the classification before the Form I485 standardized process provided by the
need to submit job offer and application is adjudicated. Supplement J requirement may facilitate
employment confirmation letters by Additionally, an individual who seeks the ability of employees to change
providing a standardized form, which to port in the future may affirmatively employers. This process, along with the
will benefit both individuals and the file Supplement J to seek a potential for an increased awareness of
Department. Under this rule, determination as to whether a new job INA 204(j) portability as a result of this
individuals will now have a uniform offer is in the same or a similar regulation, could potentially increase
method of requesting job portability and occupational classification. A DHS the number of Supplement J forms
USCIS will have a standardized means decision will inform the individual
submitted. While beneficial to
for capturing all of the relevant whether the new job offer can support
applicants, such an increase has the
information necessary for processing.37 the pending Form I485 application and
potential to result in higher turnover for
DHS believes that a single standardized continued eligibility to obtain lawful
some employers, along with additional
form, with accompanying instructions, permanent residence without the need
costs that may be incurred due to
provides greater clarity to the public for a new employer to file a new Form
employee replacement. However, DHS
regarding the types of information and I140 petition. This process will
does not currently have data on the
evidence needed to support job provide transparency into USCISs
percentage of employees who port to
portability requests. The form also same or similar determinations,
other employers vis-a-vis those who
ensures continued compliance with providing individuals with increased
certainty and better allowing them to port to other positions with their same
Paperwork Reduction Act (PRA) employers. In the RIA, DHS
requirements. make informed career decisions, such as
whether to change jobs prior to final qualitatively discusses the potential
Given the large overall number and costs to employers resulting from
variety of benefit requests and adjudication of the pending Form I485
application. employee turnover.
applications that USCIS adjudicates DHS reiterates that the Supplement J
each year, DHS can more efficiently While an applicant may be required to
submit Supplement J when requesting requirement will streamline
intake and process INA 204(j) adjudication by providing clear
job portability, or in response to an RFE
portability requests on Supplement J instructions on the types of information
or NOID, DHS does not believe that this
than those submitted through letter
new requirement will create significant
38 DHS notes that the RIA in this rulemaking

37 Along with Supplement J, individuals will still
new burdens or legal risks for employers provides potential filing costs of Supplement J as
be able to provide additional information and and employees. As discussed in more prepared by human resources specialists, in-house
documentary evidence supporting any aspect of the detail in the Regulatory Impact Analysis attorneys, and other attorneys. DHS included such
porting request. Individuals, if they so choose, may (RIA), the submission of Supplement J legal costs not because it believes that legal
also include a letter further explaining how the new assistance will be required to fill out Supplement
job offer is in the same or a similar occupational
will not impose significant additional J, but because many individuals and employers
classification as the job offer listed in the qualifying burdens of time on employers, because already use attorneys to submit portability requests
Form I140 petition. employers are already required in such under INA 204(j).
required to be submitted to USCIS. Comment. Many commenters also visa preference categories, which may
Additionally, DHS does not believe that expressed concern that the Supplement lead to visas becoming unavailable after
employers will need to create any new J requirement will cause additional Form I485 applications are filed.
administrative processes for filling out processing delays or fail to alleviate Congress established the numerical
Supplement J, as employers are already current employment-based immigrant limitations on employment-based
required to submit job offer or visa wait times. Many commenters who immigrant visa numbers. The
employment confirmation letters. DHS were on the path to obtaining lawful Department of State allocates
believes that Supplement J places permanent residence expressed their employment-based immigrant visas
similar burden on employers from what belief that the Supplement J based on the applicants preference
is required through the current process. requirement will exacerbate the already category, priority date, and country of
Similarly, because Supplement J backlogged process for adjusting status. chargeability. Supplement J does not
requests substantially the same Commenters also suggested the affect the statutory availability of
information that is currently provided requirement will lead to even more employment-based immigrant visas or
by employers through letter procedural requests for evidence, the allocation of such numbers by DOS.
correspondence, DHS does not believe further delaying completion of USCIS cannot approve an individuals
the Supplement J creates any new legal processing efforts. Another commenter application for adjustment of status
risks for those employers. For a more requested elimination of the until a visa has again become available
detailed analysis of the economic Supplement J requirement from the rule, to that individual.
impact of this rule, please refer to the stating that the requirement would deter Supplement J improves
full RIA published on regulations.gov. employers from hiring porting workers administration of the portability
Comment. Several commenters and thus set back efforts to increase provisions that Congress created so that
expressed concern that Supplement J portability among workers. individuals experiencing lengthy delays
will allow employers to take advantage Response. DHS does not believe the in the adjudication of their Form I485
of and assert more control over foreign Supplement J requirement will applications can change jobs while
workers. Some commenters specifically exacerbate or otherwise increase Form retaining their eligibility to adjust status
focused on the requirement that I485 application processing times, nor on the basis of an approved Form I140
employers review and sign Supplement will it deter employers from hiring petition. Supplement J will result in the
J before it is submitted to USCIS. Those porting workers, because it is simply more efficient adjudication of Form I
commenters believed that this replacing the existing requirement to 485 applications once visas become
requirement could create a power provide letters from employers. To the available, which DHS believes will
dynamic in which employers could contrary, DHS believes Supplement J encourage, not deter employers from
further control and exploit workers, will streamline the processing of Form hiring workers eligible to port under
including by forcing them to accept I485 applications, minimizing any section 204(j).
depressed wages. processing delays caused by a potential Comment. Several commenters
Response. DHS does not believe that increase in porting resulting from this indicated that Supplement J will require
Supplement J will give employers more rule. USCIS currently reviews the use of attorneys, which may
power over, or the ability to take employment letters, often in response to diminish employers desires to extend
advantage of, foreign workers. When the inquiries issued by USCIS, when new job offers pursuant to INA 204(j)
use of Supplement J becomes effective, adjudicating Form I485 applications. and therefore limit job portability. One
an applicant for adjustment of status Now USCIS will review and process commenter expressed the belief that
will continue to have the same Supplement J submissions instead. corporate human resources
flexibility to accept other job offers, if Supplement J aims to reduce exchanges representatives will not feel comfortable
eligible for INA 204(j) portability, as between applicants and adjudicators, filling out Supplement J and will
they currently have. including by eliminating the need for therefore seek the involvement of
Applicants requesting portability USCIS to issue RFEs and NOIDs to immigration attorneys.
under INA 204(j) must provide evidence obtain employment confirmation letters, Response. An attorney is not required
that the employer is a viable employer thereby reducing the adjudication time to complete or file Supplement J,
extending a bona fide offer of full-time involved in such cases. It allows DHS to although individuals and employers
employment to the applicant, and that standardize data entry and tracking may choose to be represented by
the employer will employ the applicant pertaining to permanent job offers that attorneys. As indicated previously,
in the job proffered upon the applicants are required in order for the principal Supplement J will standardize
grant of lawful permanent resident beneficiaries of Form I140 petitions to information collection for job portability
status. The current practice is to have be eligible for adjustment of status. requests under INA 204(j) and request
applicants submit this evidence in the Moreover, the electronic capture of data information and evidence that many
form of job offer letters from employers. pertaining to job offers will help DHS individuals and employers already
These letters must contain the monitor the status of certain Form I485 submit to demonstrate eligibility under
employers signature, as well as a applications awaiting visa allocation INA 204(j). While DHS is aware that
certification that everything in the letter and will enable DHS to better determine many individuals and employers have
is true and correct. Supplement J does which Form I485 applications have the in the past been represented by or
not depart from this past practice in any required evidence prior to final received assistance from attorneys in
meaningful way. Because Supplement J processing. relation to portability requests under
requests the same information as is DHS agrees with commenters, INA 204(j), DHS disagrees that requiring
currently provided in letters that are however, that Supplement J will not the use of Supplement J will
currently provided by employers, and alleviate current employment-based substantially increase the likelihood
that contain the employers signature, immigrant visa wait times. Many Form that individuals or employers will need
DHS does not see how the Supplement I485 applications may remain pending to consult with attorneys on future
J requirement increases the ability to for lengthy periods of time due to the submissions, given that the information
take advantage of, or otherwise assert retrogression of visa numbers for collected by the form largely overlaps
control over, employees. particular employment-based immigrant with the information that individuals
and employers already provide through available and bona fide. Specifically, F. Compelling Circumstances
less formalized channels.39 As noted commenters referred to sections in Employment Authorization
above, Supplement J does not impose Supplement J that require employers to 1. Description of Final Rule and
any new requirements and will assist provide information such as type of Changes From NPRM
DHS in determining an individuals business, gross annual income, net
eligibility to adjust status to lawful annual income, and number of The final rule provides a stopgap
permanent residence in certain measure, in the form of temporary
employees. Commenters suggested
employment-based immigrant visa employment authorization, to certain
revising the form to only require that
categories, as well as to modernize and nonimmigrants who are the
kinds of information normally beneficiaries of approved employment-
improve the process for requesting job contained in employment confirmation
portability under INA 204(j). based immigrant visa petitions, are
letters. caught in the continually expanding
iii. Miscellaneous Comments on Response. DHS agrees that certain backlogs for immigrant visas, and face
Supplement J information requested by Supplement J, compelling circumstances. This stopgap
Comment. Several commenters asked such as the size of the employers measure is intended to address certain
for clarification on whether individuals workforce, by itself, may not be particularly difficult situations,
granted EB2 national interest waivers determinative in the assessment of including those that previously may
would be required to file Supplement J. whether two jobs are in the same or have forced individuals on the path to
Response. Grantees of national similar occupational classification(s), or lawful permanent residence to abruptly
interest waivers will not be required to whether the job offered in the stop working and leave the United
file Supplement J. Individuals seeking States. When sponsored workers and
underlying Form I140 petition is still
immigrant visas under certain their employers are in particularly
available. However, such information
employment-based immigrant visa difficult situations due to employment-
categories do not require job offers from can be relevant in the same or similar
based immigrant visa backlogs, the
employers, including those filing EB1 determination under the totality of the compelling circumstances employment
petitions as an alien of extraordinary circumstances, as well as when USCIS authorization provision may provide a
ability and those filing EB2 petitions is assessing whether a job offer is bona measure of relief, where currently there
based on a national interest waiver, fide. DHS believes the information is none.
which waives the normal EB2 job offer requested on Supplement J will assist Specifically, the final rule provides
requirement when DHS determines that USCIS in validating employers and in that, to obtain a temporary grant of
doing so is in the national interest. See assessing whether a prospective compelling circumstances employment
8 CFR 204.5(h)(5) and (k)(4)(ii). An employer is viable and making a bona authorization, an individual must (1) be
individual classified as an alien of fide job offer to the applicant. And in in the United States in E3, H1B, H
extraordinary ability or granted a cases involving the same employer 1B1, O1, or L1 nonimmigrant status,
national interest waiver is not required named in the underlying Form I140 including in any applicable grace
to demonstrate a job offer at the time of petition, Supplement J will assist USCIS period, on the date the application for
adjudication of the Form I485 in determining whether the employer is employment authorization is filed; (2)
application and therefore would not still viable and is still extending a bona be the principal beneficiary of an
need to submit Supplement J (although fide job offer to the applicant. approved Form I140 petition; (3)
they are not precluded from doing so). establish that an immigrant visa is not
Comment. Some commenters authorized for issuance based on his or
However, USCIS may inquire whether
expressed concern that Supplement J her priority date, preference category,
such applicants are continuing to work
in the area or field that forms the basis would prevent economic growth and and country of chargeability according
of their immigrant visa eligibility. reduce labor mobility among workers to the Final Action Date in effect on the
USCIS may also assess inadmissibility who have various talents, especially in date the application is filed; and (4)
by determining whether an individual the technology sector. They argued that demonstrate compelling circumstances
would likely become a public charge the ability of high-skilled talent to move that justify the exercise of USCIS
under INA 212(a)(4). USCIS revised the between various organizations, or discretion to issue an independent grant
Supplement J instructions to clarify that between different industries of the U.S. of employment authorization. See final
the form need not be filed by aliens of economy, would spur economic growth. 8 CFR 204.5(p)(1). The final rule limits
extraordinary ability or individuals the grant of employment authorization
Response. DHS disagrees that the
applying for adjustment of status on the in compelling circumstances to a period
Supplement J requirement would
basis of a national interest waiver. of 1 year. See final 8 CFR 204.5(p)(4).
prevent economic growth and hinder Additionally, the principal beneficiary
Comment. Several commenters stated labor mobility. As noted previously,
that Supplement J requires certain may seek renewals of this employment
Supplement J simply allows DHS to authorization in 1-year increments if: (1)
information that is not relevant to either
collect and process information that He or she continues to face compelling
a portability determination under INA
employers already provide using a circumstances and establishes that an
204(j) or to confirm that a job offer is
standardized information collection immigrant visa is not authorized for
39 As noted previously, the RIA in this instrument, but it does not change the issuance based on his or her priority
rulemaking provides potential filing costs of applicable standards of review. Contrary date, preference category, and country
Supplement J as prepared by human resources to assertions that Supplement J will of chargeability according to the Final
specialists, in-house attorneys, and other attorneys.

DHS recognizes that not all entities have human
limit worker mobility, DHS believes that Action Date in effect on the date the
resources specialists or low-cost access to attorneys. Supplement J will facilitate the ability renewal application is filed; or (2) the
DHS reaffirms, however, that aid of an attorney or for eligible individuals to change difference between his or her priority
a human resources specialist is not required to fill between jobs while increasing the date and the relevant Final Action Date
out Supplement J. DHS included these costs
because many larger entities already rely on such awareness of the availability of job is 1 year or less (without having to show
individuals when preparing documents for use in portability under INA 204(j). compelling circumstances). See final 8
portability requests under INA 204(j). CFR 204.5(p)(3)(i). The final rule allows
family members of these individuals to themselves in particularly difficult employed under a compelling
also apply for employment situations generally outside of their circumstances EAD leaves the United
authorization, and provides that the control while they wait for their States to apply for a nonimmigrant or
validity period for their EADs may not immigrant visas to become available. immigrant visa at a consular post
extend beyond that authorized for the Comment. One commenter supported abroad, the departure will not trigger the
principal beneficiary. See final 8 CFR the provision making individuals with a unlawful presence grounds of
204.5(p)(2) and (p)(3)(ii). The large felony conviction ineligible for inadmissibility, as long as he or she is
majority of these individuals, after compelling circumstances employment not subject to those grounds by virtue of
availing themselves of this temporary authorization and recommended that having otherwise accrued periods of
relief, are likely to continue on their such felons be deported without asking unlawful presence. USCIS intends to
path to permanent residence. questions. adjust its policy guidance to confirm
DHS is finalizing the compelling Response. DHS confirms that, that holders of compelling
circumstances employment consistent with other processes, circumstances EADs will be considered
authorization provision with several applicants who have been convicted of to be in a period of stay authorized by
changes to the proposed regulatory text any felony or two or more the Secretary for that purpose. Because
to clarify the eligibility requirements for misdemeanors are ineligible for such individuals will be considered as
initial and renewal applications filed by employment authorization under the being in a period of authorized stay for
principals and dependents. An compelling circumstances provision. purposes of calculating unlawful
individual requesting an EAD must file See final 8 CFR 204.5(p)(5). DHS, presence, DHS does not believe it
an application on Form I765 with however, will not deport individuals generally would be necessary to provide
USCIS in accordance with the form without due process or in a manner them with deferred action, which is an
instructions. Under final 8 CFR inconsistent with controlling statutory act of prosecutorial discretion that may
204.5(p)(3), some individuals may be and regulatory authority. be granted to individuals who generally
eligible for a renewal of their ii. Status of Individuals Who Are have no other legal basis for being in the
compelling circumstances EAD on Granted a Compelling Circumstances United States.
either or both bases of eligibility, EAD Comment. Commenters suggested that
depending on their circumstances. DHS individuals who use compelling
Comment. A few commenters asked circumstances EADs should be
also recognizes that an applicant may DHS to clarify the status of an
seek to renew his or her compelling permitted to adjust their status to lawful
individual who receives employment permanent residence once a visa
circumstances EAD on a different basis authorization based on compelling
than that on the initial application. In becomes available, regardless of
circumstances. One commenter asked whether they are maintaining
the responses to comments below, DHS DHS to clarify whether such individuals
further explains the provisions in the nonimmigrant status.
will be given a period of deferred Response. With limited exception,40
final rule, including the manner in action so as to provide them with a
which DHS determined the specific the INA does not permit the relief these
temporary reprieve from removal or commenters are requesting. Workers
population of beneficiaries who would other enforcement action. Similarly, the who initially apply for compelling
be eligible for this type of employment commenter asked DHS to confirm that circumstances EADs must be in a lawful
authorization and its rationale for individuals who receive employment nonimmigrant status. When a high-
providing employment authorization authorization under compelling skilled worker engages in employment
only to those individuals who are facing circumstances will not accrue unlawful under a compelling circumstances EAD,
compelling circumstances. presence. Another commenter asked he or she will no longer be working
2. Public Comments and Responses DHS to provide an underlying status for under the terms and conditions
beneficiaries of compelling contained in the underlying
i. Support for Compelling circumstances EADs or to consider such
Circumstances Employment nonimmigrant petition. Although the
beneficiaries to be in lawful status for foreign national may remain in the
Authorization purposes of INA 245(k)(2)(A), 8 U.S.C. United States and work under a
Comment. Some commenters 1255(k)(2)(A), so that these beneficiaries compelling circumstances EAD, and
supported the rule completely as would be eligible to file applications for generally will not accrue unlawful
written and therefore supported adjustment of status from within the presence while the EAD is valid, he or
employment authorization based on United States, rather than having to she may be unable to adjust status to
compelling circumstances as proposed. consular process. lawful permanent residence in the
Many of these commenters expressed Response. Congress sets the categories United States when his or her priority
general support and did not provide a or statuses under which foreign date becomes current. An individual
detailed explanation for their position. nationals may be admitted to the United who is seeking lawful permanent
Other commenters highlighted the States. While individuals eligible for residence based on classification as an
benefits of compelling circumstances compelling circumstances EADs must employment-based immigrant is
employment authorization, such as have lawful nonimmigrant status at the generally barred by statute from
facilitating the ability of certain time they apply, such individuals will applying to adjust status in the United
nonimmigrants to work for other generally lose that status once they States if he or she is not in lawful
employers (i.e., not just the sponsoring engage in employment pursuant to such nonimmigrant status. See INA 245(c)(2)
employer). an EAD. Such a foreign national will no and (7), 8 U.S.C. 1254(c)(2) and (7). If an
Response. DHS appreciates these longer be maintaining his or her individual working on a compelling
comments. The compelling nonimmigrant status, but he or she will circumstances EAD finds an employer
circumstances provision fills a gap in generally not accrue unlawful presence who is willing to sponsor him or her for
the regulations and provides short-term during the validity period of the EAD or a nonimmigrant classification (such as
relief to high-skilled individuals who during the pendency of a timely filed
are already on the path to lawful and non-frivolous application. This 40 See, e.g., INA 245(i) and (k), 8 U.S.C. 1255(i)
permanent residence, but who find means that if an individual who was and (k).
the H1B nonimmigrant classification), imposing the compelling circumstances grants of employment authorization in
he or she would have to leave the condition. 1-year increments to certain high-skilled
United States and may need to obtain a Response. The Department believes individuals facing difficult situations,
nonimmigrant visa from a consulate or the compelling circumstances DHS intends to provide something
embassy overseas before being able to employment authorization provision differenta stopgap relief measure for
return to the United States to work in strikes a reasonable balance between intending immigrants, well on their way
that status. See INA 248, 8 U.S.C. 1258; competing priorities. By providing to achieving lawful permanent resident
8 CFR 248.1(b). Once the individual has greater flexibility to certain high-skilled status, in the event certain
been admitted in nonimmigrant status, foreign workers who are on the path to circumstances arise outside their
he or she may be eligible to adjust status permanent residence but are facing control, and that the existing framework
to lawful permanent residence, if particularly difficult situations, the fails to meaningfully address. Where no
otherwise eligible. provision incentivizes such workers to such circumstances are present, these
continue contributing to our economy; individuals can avail themselves of
iii. Changing the Scope of Proposed affords greater fairness to such other opportunities already permitted
Employment Authorization individuals who have already cleared them under the INA and DHS
Comment. A majority of commenters significant legal hurdles to becoming regulations, including the improved
supported the ability of high-skilled LPRs; and complements the flexibilities flexibilities provided by this final rule.
workers to obtain independent otherwise introduced by this Among other things, this final rule
employment authorization but stated rulemaking in a way that harmonizes provides high-skilled workers with
that the proposal in the NPRM was too with the broader immigration system. nonimmigrant grace periods and
restrictive, particularly because of the DHS therefore declines to expand the includes provisions that help such
inclusion of the compelling group of people who may be eligible for workers retain approval of their
circumstances requirement. employment authorization under 8 CFR employment-based immigrant visa
Commenters instead supported 204.5(p). petitions and related priority dates.
employment authorization for foreign DHS believes the expansions These provisions enhance flexibility for
workers in the United States who are suggested by commenters have the employers and nonimmigrant workers
beneficiaries of approved Form I140 potential to create uncertainty among and will decrease instances where the
petitions, who are maintaining employers and foreign nationals with compelling circumstances EAD might
nonimmigrant status, and who are consequences for predictability and otherwise be needed. Relatedly, DHS
waiting for their immigrant visa priority reliability in the employment-based believes that providing compelling
dates to become current, regardless of immigration system. Among other circumstances EADs only to the subset
whether they face compelling things, the suggestions could lead to of the employment-sponsored
circumstances. unlimited numbers of beneficiaries of population in need of this relief will
A common concern expressed by approved immigrant visa petitions limit disincentives for employers to
commenters opposing the compelling choosing to fall out of nonimmigrant sponsor foreign workers for permanent
circumstances requirement was that the status, as described in greater detail residence. DHS thus disagrees that the
number of individuals who would be below. The resulting unpredictability in proposed eligibility factors for
eligible for such EADs would be too the employment-based immigrant visa employment authorization in
narrow. Some commenters suggested process must be carefully weighed in compelling circumstances are too
that it would be better to never finalize light of the Secretarys directive to restrictive and negate the value of the
the rule if the compelling circumstance provide stability to these entire regulation. Further, DHS
provision were to remain intact. Certain beneficiaries, while modernizing and
commenters opposed DHSs disagrees with the commenters
improving the high-skilled visa characterizations that the limitations on
introduction of a compelling system.41 DHS is cognizant of these
circumstances requirement because no the compelling circumstances EAD are
consequences for foreign nationals who unfairly or improperly targeting
other employment authorization may apply for compelling circumstances
category is conditioned upon a showing certain high-skilled workers. DHS
EADs, and carefully weighed these believes that the compelling
of compelling circumstances. One consequences when assessing the
commenter, for example, reasoned that circumstances EAD provides a useful
classes of individuals who should be benefit for all eligible high-skilled
the compelling circumstances eligible for such EADs. Moreover, the
requirement should be eliminated workers by allowing them to continue to
INA affords numerous mechanisms for progress in their careers and remain in
because applicants for adjustment of high-skilled workers to obtain
status, who similarly are on the path to the United States while they await
employment in the United States under immigrant visas, despite compelling
lawful permanent residence, need not a variety of applicable nonimmigrant
demonstrate compelling circumstances circumstances that might otherwise
classifications and, as necessary, change force them to leave the United States.
to obtain an EAD. Other commenters from one nonimmigrant status to
noted that recipients of deferred action Retaining these high-skilled
another.42 DHS regulations accordingly nonimmigrant workers who are well on
under the Deferred Action for
provide the processes and criteria for their way to becoming LPRs is
Childhood Arrivals (DACA) policy are
obtaining such statuses on behalf of important when considering the
not required to establish compelling
high-skilled workers.43 By authorizing contributions of these individuals to the
circumstances to qualify for
employment authorization and stated U.S. economy, including through
41 See Memo from Jeh Charles Johnson, Secretary

that it is only fair that nonimmigrants contributions to entrepreneurial
of Homeland Security, Policies Supporting U.S.
with approved Form I140 petitions High-Skilled Business and Workers 2 (Nov. 20, endeavors and advances in research and
who are contributing to society by 2014), available at http://www.dhs.gov/sites/ development.44
default/files/publications/14_1120_memo_
working and paying taxes be treated business_actions.pdf. 44 See Hart, David, et al., High-tech Immigrant
equivalently. Some commenters 42 See INA 101(a)(15), 214(e), and 248, 8 U.S.C.
Entrepreneurship in the United States, Small
concluded that the Department is 1101(a)(15), 1184(e), and 1258. Business Administration Office of Advocacy, at 60
targeting certain foreign workers by 43 See 8 CFR parts 214 and 248. (July 2009), available at: https://www.sba.gov/sites/
Comment. Several commenters stated sections 103 and 274A(h)(3)(B), 8 U.S.C. concerning portability of high-skilled
that the Department clearly has the legal 1103, and 1324a(h)(3)(B). The workers and their spouses is addressed
authority to implement the compelling Secretarys exercise of discretion to in several elements of this rulemaking,
circumstances EAD, as well as the legal grant employment authorization is including through the new H1B
authority to significantly broaden narrowly tailored in this final rule to portability provisions, the section 204(j)
eligibility for such EADs. Other address the needs of a group of portability provisions, and provisions
commenters questioned DHSs legal individuals who face compelling revising the circumstances under which
authority to extend employment circumstances. The employment Form I140 petitions are automatically
authorization to certain non-U.S. authorization is valid for 1 year, with revoked. To the degree these comments
citizens based on compelling limited opportunities for renewal, and is
specifically relate to provisions
circumstances. One such commenter only available to discrete categories of
authorizing employment of H4
emphasized that employment for other nonimmigrant workers.
categories is expressly authorized by Comment. Several commenters nonimmigrant spouses of H1B
statute. opposed to the compelling nonimmigrant workers who have been
Response. DHS agrees with the circumstances limitation noted that sponsored for permanent resident
commenters who recognized that the such limitation was not referenced in status, that provision was subject to
Department has the statutory authority the Secretarys November 20, 2014 separate notice-and-comment
to grant employment authorization to Memorandum, Policies Supporting rulemaking and is now codified at 8
these individuals. Such authority stems, U.S. High-Skilled Businesses and CFR 214.2(h)(9)(iv).
in part, from the Secretarys broad Workers. 45 Similarly, many Comment. Several commenters
discretion to administer the Nations commenters stated that the proposed claimed that the compelling
immigration laws and broad authority to rule did not deliver portable work circumstances EAD provision has
establish such regulations . . . and authorization for high-skilled workers limited value because it introduces
perform such other acts as he deems and their spouses, as described in the
additional hurdles for individuals who
necessary for carrying out his authority White House Fact Sheet on Immigration
wish to ultimately adjust their status
under the [INA]. See INA 103(a)(3), 8 Accountability Executive Action.46
U.S.C. 1103(a)(3). Further, section Response. In the November 20, 2014 domestically. Some commenters
274A(h)(3)(B) of the INA, 8 U.S.C. Memorandum, the Secretary directed asserted that the provision would
1324a(h)(3)(B) recognizes that USCIS to take several steps to provide employers with increased
employment may be authorized by modernize and improve the immigrant avenues to exploit workers.
statute or by the Secretary. See Arizona visa process for high-skilled workers. In Response. DHS appreciates that
Dream Act Coalition v. Brewer, 757 F.3d relevant part, the Secretary instructed workers who are eligible for the
1053, 1062 (9th Cir. 2014) (Congress USCIS to carefully consider regulatory compelling circumstances EAD may
has given the Executive Branch broad or policy changes to better assist and nevertheless choose to not to apply for
discretion to determine when provide stability to the high-skilled this option after weighing all
noncitizens may work in the United beneficiaries of approved Form I140 immigration options relevant to their
States.); Perales v. Casillas, 903 F.2d petitions. DHS believes this rule meets specific situations. DHS is providing
1043, 1048, 1050 (5th Cir. 1990) the Secretarys objectives. Although the this new option in addition to others
(describing the authority recognized by compelling circumstances provision already available to foreign workers,
INA 274A(h)(3) as permissive and was not specifically referenced in the such as changing status to another
largely unfettered). The fact that November 20, 2014 Memorandum, it
nonimmigrant category or applying for
Congress has directed the Secretary to was proposed by the Department in
an extension of stay with a new
authorize employment to specific response to the Secretarys directive to
carefully consider other regulatory or employer in the same nonimmigrant
classes of foreign nationals (such as the
policy changes to better assist and category. DHS anticipates that an
spouses of E and L nonimmigrants) does
not diminish the Secretarys broad provide stability to the beneficiaries of individual evaluating whether to apply
authority to administer the INA and to approved Form I140 petitions. 47 The for a compelling circumstances EAD
exercise discretion in numerous compelling circumstances provision will consider the benefits and
respects, including through granting specifically enables the beneficiaries of drawbacks of using such an EAD. DHS
employment authorization as a valid such petitions to remain and work in expects that such individuals will
exercise of such discretion. See INA the United States if they face compelling specifically consider the effects of losing
circumstances while they wait for an nonimmigrant status by working under
default/files/rs349tot_0.pdf (presenting the immigrant visa to become available, and a compelling circumstances EAD, which
economic contributions of high-skilled immigrants therefore directly responds to the may require consular processing to
and the need to retain them, and concluding that
36 percent of immigrant-founded companies
Secretarys directive. reenter the United States on a
conduct R&D and 29 percent of immigrant-founded The White House Fact Sheet on nonimmigrant or immigrant visa. DHS
companies held patents, both higher percentages Immigration Accountability Executive believes that the rule provides a
than native-founded companies); Fairlie, Robert, Action referenced by the commenters meaningful benefit to high-skilled
Open for Business: How Immigrants are Driving
Small Business Creation in the United States, The individuals who otherwise may face
45 See Memo from Jeh Charles Johnson, Secretary
Partnership for a New American Economy (August, particularly difficult situations.
2012), available at: http:// of Homeland Security, Policies Supporting U.S.
www.renewoureconomy.org/sites/all/themes/pnae/ High-Skilled Business and Workers 2 (Nov. 20, Finally, commenters did not suggest
openforbusiness.pdf; Immigrant Small Business 2014), available at http://www.dhs.gov/sites/ how the compelling circumstances EAD
Owners a Significant and Growing Part of the default/files/publications/14_1120_memo_
business_actions.pdf. would facilitate the ability of employers
Economy (June 2012), available at: http://
www.fiscalpolicy.org/immigrant-small-business- 46 See FACT SHEET: Immigration Accountability to exploit their employees. DHS
owners-FPI-20120614.pdf; Anderson, Stuart, Executive Action, White House (Nov. 20, 2014), disagrees that the availability of such
American Made 2.0 How Immigrant Entrepreneurs https://www.whitehouse.gov/the-press-office/2014/ EADs, which are available to high-
Continue to Contribute to the U.S. Economy, 11/20/fact-sheet-immigration-accountability-
National Venture Capital Association, available at: executive-action. skilled nonimmigrant workers on a
http://nvca.org/research/stats-studies/. 47 See id. at 2. voluntary basis, would result in
increased exploitation of such compelling circumstances. Another circumstances that USCIS, in its
workers.48 commenter suggested that DHS broaden discretion, might find compelling.
the circumstances in which employer USCIS emphasizes that this list is not
iv. Illustrations of Compelling
retaliation would be considered to be exhaustive of the types of situations that
Circumstances
compelling, so as to benefit employees might involve compelling
In the NPRM, DHS provided four involved in labor disputes. The circumstances.
examples of situations that, depending commenter noted that, as discussed in Serious Illnesses and Disabilities.
on the totality of the circumstances, may the preamble of the NPRM, the category The nonimmigrant worker can
be considered compelling and justify titled Employer Retaliation would demonstrate that he or she, or his or her
the need for employment authorization: require an employee to document that dependent, is facing a serious illness or
(1) Serious illness or disability faced by an employer had taken retaliatory action disability that entails the worker moving
the nonimmigrant worker or his or her before the employee could become to a different geographic area for
dependent; (2) employer retaliation eligible to apply for employment treatment or otherwise substantially
against the nonimmigrant worker; (3) authorization based on compelling changing his or her employment
other substantial harm to the applicant; circumstances. To alleviate undue risk, circumstances. A move to another part
and (4) significant disruption to the the commenter recommended revising of the country to ensure proper medical
employer. These situations are meant to the category so that it would cover care is just one example of compelling
be illustrative, as compelling individuals involved in labor disputes. circumstances resulting from a serious
circumstances will be decided on a The commenter believed this change illness or disability of the principal
case-by-case basis and may involve facts would reduce the harm that retaliation beneficiary or his or her family member.
that vary from those provided above. can cause to employees and prevent the Employer Dispute or Retaliation.
For that reason, DHS invited the public chilling effect such retaliation can have The nonimmigrant worker can
to suggest other types of compelling on the exercise of labor rights. demonstrate that he or she is involved
circumstances that may warrant a A commenter also requested that, as in a dispute regarding the employers
discretionary grant of separate related to DHSs proposal to consider alleged illegal or dishonest conduct as
employment authorization. DHS also significant disruption to employers, evidenced by, for example, a complaint
requested comments on the manner in compelling circumstances apply when filed with a relevant government
which applicants should be expected to an employer attests that departure of the agency 49 or court, and that the
document such compelling employee will: (1) Delay a project; (2) employer has taken retaliatory action
circumstances. In response, DHS require the company to expend time or that justifies granting separate
received numerous comments providing resources to train another employee to employment authorization to the worker
examples and suggestions, which are fill the role; (3) result in additional costs on a discretionary basis or that the
discussed below. to recruit and hire a new employee; or dispute otherwise is shown to have
Comment. Several commenters (4) harm the companys professional created compelling circumstances. DHS
requested that DHS clearly define the reputation in the marketplace. recognizes that employer retaliation in
term compelling circumstances. Some Response. DHS understands that response to a dispute is not limited to
of these commenters stated that the establishing a bright-line definition may termination of employment and could
subjectivity of the compelling be easier to apply in the view of some include any number of actions taken by
circumstances provision would lead to stakeholders; however, it may also have an employer, including harassment.
unfair and inconsistent results. Other the effect of limiting DHSs flexibility to Depending on the unique circumstances
commenters stated that the lack of a recognize the various circumstances that of a situation, an employer dispute
definition would lead to confusion. could be considered compelling. Such
Another commenter requested that could rise to the level of compelling
flexibility is better afforded through a circumstances even absent employer
DHS expand on the phrase other mechanism that permits DHS to
substantial harm to the applicant, retaliation, but DHS declines to adopt
determine which situations involve the suggestion to grant a compelling
believing that this provision may be the compelling circumstances on a case-by-
most common basis for demonstrating circumstances EAD on the sole basis
case basis. Therefore, in the preamble to that the applicant is involved in a labor
the NPRM, DHS identified four
48 DHS takes worker exploitation seriously. The dispute. DHS is allowing sufficient
illustrative (i.e., non-exhaustive) types
Department has created the Blue Campaign to flexibility under this ground, including
of circumstances in which the
combat human trafficking and aid victims. More by not defining retaliation or labor
information about the Blue Campaign can be found Department may consider granting
dispute in this rule or confining the
at www.dhs.gov/blue-campaign. Other U.S. employment authorization. The possible
Government resources include the Department of ground to LCA violations alone. DHS
types of circumstances that DHS may
Justices Office of Special Counsel for Immigration- further notes that the employer
consider compelling are not restricted to
Related Unfair Employment Practices, which retaliation example does not identify the
enforces the anti-discrimination provision of the these examples. In finalizing this rule,
universe of fact patterns that might
INA. See INA section 274B; 8 U.S.C. 1324b. More DHS considered comments requesting
involve improper behavior by
information about reporting an immigration-related additional scenarios for DHS to add to
unfair employment practice may be found at http:// the illustrative list of potential employers. DHS believes that the
www.justice.gov/crt/about/osc. In addition, the U.S.
compelling circumstances in the NPRM. approach outlined in this final rule will
Equal Employment Opportunity Commission make appropriate relief available for
(EEOC) enforces Title VII of the Civil Rights Act of The broad range of additional scenarios
1964 (Title VII), as amended, and other federal laws suggested underscores the importance certain employees who can demonstrate
that prohibit employment discrimination based on for retaining flexibility in making these
race, color, national origin, religion, sex, age, 49 Relevant government agencies include, but are
disability and genetic information. More

discretionary determinations. Therefore, not limited to, the Department of Labor, the Equal
information about Title VII and the EEOC may be DHS declines to define the term Employment Opportunity Commission, the
found at www.eeoc.gov. DHS also notes that DOLs compelling circumstances in more National Labor Relations Board, and state or local
Wage and Hour Division investigates allegations of concrete and limiting terms in this counterparts to these federal agencies (e.g., the
employee abuse. Information about reporting a Massachusetts Labor and Workforce Development
potential wage and hour violation can be found at
rulemaking. In response to the public Office, the New Hampshire Public Employee Labor
www.dol.gov or by calling 18664USWAGE (1 comments, however, the agency Relations Board, and the Oregon Employment
8664879243). provides this updated list of illustrative Relations Board).
that they do not have the option of would cause the petitioning employer continuously extend nonimmigrant
remaining with their current employer substantial disruption. DHS does not status was in itself a compelling
or that they face retaliatory actions if believe that, standing alone, a time circumstance and that employment
they do remain with their current delay in project completion would authorization should be granted on that
employer. likely rise to a compelling circumstance, basis alone. Commenters suggested
Other Substantial Harm to the as a commenter suggested; however, various timeframes for when the wait
Applicant. The nonimmigrant worker such delays when combined with other for an immigrant visa would be lengthy
can demonstrate that due to compelling factors, such as the cost to train or enough to qualify as a compelling
circumstances, he or she will be unable recruit a replacement or harm to an circumstance, including situations
to timely extend or otherwise maintain employers reputation in the involving beneficiaries: Who are facing
status, or obtain another nonimmigrant marketplace, might rise to a compelling waits of over 5 years before they are
status, and absent continued circumstance. Additional examples of eligible to file their applications for
employment authorization under this significant disruption may include the adjustment of status; who have
proposal the applicant and his or her following: completed 6 years in H1B
family would suffer substantial harm. In An L1B nonimmigrant worker nonimmigrant status and have an
some situations, this showing might be sponsored for permanent residence by approved Form I140 petition; who
tied to financial hardship facing the an employer that subsequently have an approved Form I140 petition
principal and his or her spouse and undergoes corporate restructuring (e.g., and are facing at least a three month
children. An example of such a sale, merger, split, or spin-off) such wait before they may be eligible to file
substantial harm may involve an H1B that the workers new employer is no their applications for adjustment of
nonimmigrant worker who has been longer a multinational company eligible status; or who have reached the limit of
applying an industry-specific skillset in to employ L1B workers, there are no their nonimmigrant status solely
a high-technology sector for years with available avenues to promptly obtain because of the backlog on immigrant
a U.S. entity that is unexpectedly another work-authorized nonimmigrant visas.
terminating its business, where the status for the worker, and the employer Academic Qualifications. Several
worker is able to establish that the same would suffer substantial disruption due commenters suggested that DHS should
or a similar industry (e.g., nuclear to the critical nature of the workers grant compelling circumstances EADs to
energy, aeronautics, or artificial services. In such cases, the employment individuals seeking to gain advanced
intelligence) does not materially exist in authorization proposal would provide academic experience, such as those
the home country. Another example the employer and worker a temporary obtaining a U.S. graduate degree based
might include a nonimmigrant worker bridge allowing for continued on specialized research or entering a
whose return to his or her home country employment while they continue in fellowship program. One commenter
would cause significant hardship to the their efforts to obtain a new requested that U.S. educated advanced-
worker and his or her family by nonimmigrant or immigrant status. degree holders in the fields of science,
resulting in a series of circumstances An H1B nonimmigrant worker technology, engineering, and
regarding the family being uprooted that who provides critical work on mathematics (STEM) be granted
in their totality, rise to the level of biomedical research for a non-profit compelling circumstances employment
compelling circumstances. In this entity, affiliated with an institution of authorization. Another commenter
circumstance, the employment higher education, that subsequently requested employment authorization
authorization proposal would provide reorganizes and becomes a for-profit under compelling circumstances for
the individual with an opportunity to entity, causing the worker to no longer workers who are pursuing part-time
find another employer to sponsor him or be exempt from the H1B cap. In cases education and would like to switch to
her for immigrant or nonimmigrant where the worker may be unable to a different type of job.
status and thereby protect the worker obtain employment authorization based Dissatisfaction with Current
and his or her family members from the on his or her H1B status, and the Position or Salary. Some commenters
substantial harm they would suffer if employer is unable to file a new H1B indicated that job dissatisfaction should
required to depart the United States. petition based on numerical limitations be a compelling circumstance, because
Although approaching or reaching the or to obtain another work-authorized remaining in such employment can
statutory temporal limit on an nonimmigrant status, the employment cause emotional harm and other
individuals nonimmigrant status will authorization available under 8 CFR problems.
not, standing alone, amount to 204.5(p) could provide a temporary Home Ownership. One commenter
compelling circumstances, this could be bridge for continued employment of the recommended that home ownership be
a factor considered by DHS in weighing worker as his or her departure would considered a compelling circumstance.
the totality of the circumstances on a create substantial disruption to the Unemployment. One commenter
case-by-case basis. Likewise, job loss employers biomedical research. recommended that unemployment be
alone will not be considered substantial Comment. The NPRM requested that considered a compelling circumstance.
harm to the applicant, unless an commenters submit examples of Effects on Derivatives. One
individual can show additional additional scenarios that could be commenter suggested that certain family
circumstances that compound the considered for compelling situations should be considered
hardship associated with job loss. circumstances EADs. Many commenters compelling circumstances. Specifically,
Significant Disruption to the suggested fact patterns that they the commenter stated that employment
Employer. The nonimmigrant worker believed should rise to the level of a authorization should be approved where
can show that due to compelling compelling circumstance. DHS received the employee submits evidence that his
circumstances, he or she is the following specific suggestions: or her departure will: (1) Negatively
unexpectedly unable to timely extend or Extraordinary Wait. Many affect the employees, or a derivative
change status, there are no other commenters asked DHS to consider a family members, professional career; or
possible avenues for the immediate lengthy wait for an immigrant visa to be (2) disrupt the ongoing education of the
employment of such worker with that a compelling circumstance. A number of employees child. Many commenters
employer, and the workers departure commenters noted that having to requested that DHS amend the proposed
regulation to protect derivatives who not consider that these common operation of law.50 See INA 101(b)(1)
may be aging out. The majority of consequences, on their own, would and 203(d), 8 U.S.C. 1101(b)(1) and
these commenters believed that aging amount to compelling circumstances. 1153(d). Such an individual would no
out itself constituted a compelling Nor does DHS believe that many of the longer qualify as an eligible dependent
circumstance. other scenarios suggested by beneficiary of the principals Form I
Entrepreneurship. Some commenters involve compelling 140 petition and would not be able to
commenters advocated for granting circumstances on their own. Home immigrate to the United States on that
employment authorization to ownership, notable academic basis. As such, DHS will not extend the
individuals who would like to start a qualifications, or dissatisfaction with a benefits of a compelling circumstances
business. These commenters suggested position or salary, standing alone, do employment authorization to children
that such entrepreneurship should not rise to the level of a compelling who have aged out and will not
always be a compelling circumstance. circumstance. However, any one of consider the potential for aging-out as a
National Interest Waivers. Several these situations could rise to the level per se compelling circumstance
commenters urged DHS to include of compelling circumstances in standing alone.
approval of a national interest waiver as combination with other circumstances. While circumstances relating to a
a stand-alone compelling circumstance. Likewise, unemployment, in and of business start-up could be relevant to a
One commenter requested that DHS itself, will generally not be considered presentation of compelling
grant employment authorization to a compelling circumstance. However, circumstances, an interest in
beneficiaries who have pending unemployment could rise to the level of entrepreneurship standing alone cannot
petitions for national interest waivers, a compelling circumstance if, for support an employment authorization
and that DHS eliminate the requirement example, the applicant demonstrates request based on a compelling
that individuals be maintaining lawful that the unemployment was a result of circumstance. With regard to Form I
nonimmigrant status to adjust status serious illness, employer retaliation, or 140 petitions approved in the EB2
pursuant to an employment-based would result in substantial harm or category based on a national interest
immigrant visa petition. Another significant employer disruption, as waiver, in this final rule DHS is
commenter requested that employment described above and in the NPRM. See confirming that beneficiaries of
authorization be granted to physicians 80 FR 81899, at 81925. The compelling approved Form I140 petitions under
with national interest waivers who have circumstances requirement is a higher the EB2 category, which include
worked for at least 3 years in federally standard than mere inconvenience, and national interest waiver beneficiaries
designated underserved areas. the applicant would need to establish and physicians working in medically
Response. Compelling circumstances underserved areas, are eligible to apply
the harm resulting from the loss of
are generally situations outside a for employment authorization based on
employment and the benefits to be
workers control that warrant the compelling circumstances, as long as
gained by being able to continue
Secretarys exercise of discretion in they meet all other applicable
employment in the United States.
granting employment authorization, on requirements.51
a case-by-case basis, given the totality of DHS closely considered comments
the circumstances. Adjudicators will advocating for protection of derivatives. v. Nonimmigrant and Immigrant
look at various factors, including all DHS has determined it is appropriate to Classifications of Individuals Eligible To
factors identified by the applicant, and extend the benefits provided by the Request Employment Authorization
may consider whether the evidence compelling circumstances provision to Based on Compelling Circumstances
supports providing compelling spouses and children of principal In the NPRM, DHS proposed to limit
circumstances employment beneficiaries whose employment the discretionary grant of employment
authorization, such as where the high- authorization has not been terminated authorization based on compelling
skilled nonimmigrant worker is facing or revoked. See final 8 CFR 204.5(p)(2). circumstances only to certain workers
retaliation from the employer for DHS, however, purposefully made the who are in the United States in E3, H
engaging in protected conduct, where determinative factor the principals 1B, H1B1, O1, or L1 nonimmigrant
loss of work authorization would result status, because it is the principals status and who are the beneficiaries of
in significant disruption to the employer status that forms the basis for the approved employment-based immigrant
or cause significant harm to the worker, familys presence in the United States.
or other circumstances of similar A principal beneficiary, however, would 50 The Child Status Protection Act (CSPA) was
magnitude. be able to present evidence that, for enacted on August 6, 2002, and provides continuing
example, his or her departure will eligibility for certain immigration benefits to the
DHS acknowledges that many principal or derivative beneficiaries of certain
beneficiaries eagerly await the negatively impact the derivative family benefit requests after such beneficiaries reach 21
opportunity to become lawful members professional career or disrupt years of age. See Public Law 107208; INA sections
permanent residents. The Department the ongoing education of the employees 201(f), 203(h), 204(k) 207(c)(2), and 208(b)(3), 8
child, and DHS will consider these U.S.C. 1151(f), 1153(h), 1154(k), 1157(c)(2), and
works closely with DOS to improve the 1158(b)(3). Specifically, the CSPA addresses certain
immigrant visa processing system, but factors together with all supporting situations involving delays in the adjudication of
notes that it is inevitable that factors as part of the overall analysis. petitions or applications. The CSPA has wide
DHS also specifically considered applicability, covering family-sponsored and
beneficiaries may experience long waits employment-based beneficiaries, Diversity Visa
and that processing times will vary. As comments expressing concern for immigrants, refugees, and asylees.
indicated in the NPRM, DHS does not children who may age out or have 51 DHS observes that physicians receiving
believe that a long wait for an immigrant recently aged out of immigration employment authorization based on compelling
visa constitutes a compelling benefit eligibility. DHS notes that, by circumstances who have sought a national interest
statute, once a person turns 21, he or waiver based on an immigrant visa petition under
circumstance on its own. Many workers section 203(b)(2)(B)(ii) of the Act remain subject to
who face a lengthy wait for an she is no longer a child for purposes all requirements relating to the national interest
immigrant visa, including those who of the INA, subject to certain statutory waiver. Similarly, a physician who may be eligible
exceptions by which individuals who for a compelling circumstance EAD may still be
have reached their statutory maximum subject to, and limited by, any applicable
time period in nonimmigrant status, surpass that age are or may be obligations under sections 212(e) and 214(l) of the
often face difficult choices. DHS does considered to remain a child by Act.
visa petitions. See proposed 8 CFR (EB4) category, including certain that compelling circumstances exist.
204.5(p)(1)(i). DHS invited public religious workers; Iraqis who have DHS notes that a Form I765
comment on the proposed assisted the United States; Iraqi and application filed far in advance of the
nonimmigrant classifications, including Afghan translators; employees of expiration of the foreign nationals
whether other nonimmigrant international organizations; and others. nonimmigrant status may be
classifications should be considered. The commenter further noted that some adjudicated before such status expires;
DHS also invited public comment on Iraqi translators have been neglected by however, DHSs approval of the
the requirement that applicants be the the U.S. immigration system, and that employment authorization based on
beneficiaries of approved EB1, EB2, DHS, through the NPRM, was compelling circumstances would still be
or EB3 immigrant visa petitions. These continuing this asserted neglect. limited to an initial grant of 1 year
comments are addressed below. Response. DHS aligned this beginning on the date of approval.
Comment. Commenters specifically rulemaking with the principles With respect to the timing of the
asked DHS to expand eligibility for the underlying AC21 and ACWIA, codifying renewal application, DHS has reviewed
compelling circumstances provision to longstanding policies and practices the renewal provision as proposed and
other nonimmigrant classifications, implementing those statutes, and agrees with commenters that the
including to the E1, E2, and J1 building upon those provisions to proposed regulatory text was ambiguous
nonimmigrant classifications. Some of provide stability and flexibility to regarding the timing of renewal
these commenters noted that certain foreign workers who are applications. Therefore, DHS clarifies in
nonimmigrants in these classifications successfully sponsored for LPR status by the final rule at 204.5(p)(3) that
could experience the same types of their employers. DHS has carefully applications for renewal of employment
hardship as nonimmigrants covered by tailored the compelling circumstances authorization based on compelling
the proposed rule. EAD provision as a stopgap measure for circumstances must be filed by the
Response. In developing the proposed certain high-skilled individuals facing applicant prior to the expiration of his
rule, DHS carefully considered the particularly difficult situations who are or her current employment
classes of nonimmigrant workers who on the path to lawful permanent authorization. Requiring renewal
should be eligible to apply for residence under the EB1, EB2 and applications to be properly filed prior to
compelling circumstances EADs. EB3 immigrant visa classifications. the expiration of the current
Providing additional benefits to E1 and DHS declines the commenters employment authorization is consistent
E2 nonimmigrants would impact request to include EB4 beneficiaries as with DHSs goal of promoting ongoing
international treaties and foreign policy eligible to apply for employment employment and also encourages such
considerations and DHS therefore authorization based on compelling applicants to avoid accruing unlawful
believes it is inappropriate to include circumstances because Congress, with presence, which could affect their
them in this rulemaking. Likewise, very limited exception,52 did not eligibility to obtain LPR status. Like
changes related to J1 nonimmigrants prioritize the EB4 visa category in other Form I765 applicants,
could not be made solely by DHS, as the AC21, which this rule was broadly individuals applying for employment
program is administered predominantly intended to complement. Moreover, authorization based on compelling
by DOS. Moreover, many J1 DHS did not propose to expand the circumstances, at either the initial or
nonimmigrants are statutorily required scope of the rulemaking to address renewal stage, must be in the United
to complete a 2-year foreign residence issues related to EB4 beneficiaries, and States when applying for the benefit.
requirement before they can remain in therefore cannot adopt the commenters Comment. One commenter asked DHS
the United States, and providing them suggestion. to clarify whether a beneficiary in a
with employment authorization in many grace period may submit an initial
circumstances could be contrary to vi. Application Timeframes for
request for employment authorization
these statutory restrictions. See INA Compelling Circumstances EADs
pursuant to compelling circumstances.
101(j), 212(e), 214(l), and 248, 8 U.S.C. Comment. One commenter suggested Response. DHS affirms that
1101(j), 1182(e), 1184(l) and 1258. that individuals should be permitted to beneficiaries may file an initial
Therefore, DHS declines to include apply for an initial compelling application for a compelling
these classifications as eligible for circumstances EADs well in advance (a circumstances EAD if, on the date of
employment authorization for minimum of 180 days) of the expiration filing, they are in a period authorized by
compelling circumstances. of their current nonimmigrant status. 214.1(l)(l) or (2), as well as any other
Comment. One commenter focused on Other commenters sought clarification grace period authorized by this chapter.
DHSs inclusion of E3 and H1B1 on the timing requirements for renewal See final 8 CFR 204.5(p)(1)(i).
nonimmigrants in the compelling applications.
Response. DHS believes that vii. EAD Validity Period
circumstances provision, and asked
whether DHS intended to include E3 establishing a timeframe for individuals Comment. Some commenters opposed
and H1B1 nonimmigrants among the to request initial employment granting extensions in 1-year increments
categories of nonimmigrants that are authorization based on compelling and requested that extensions instead be
afforded dual intent. circumstances is not necessary. Under granted in longer increments. Several
Response. DHS notes that the doctrine this rule, an applicant can file a Form commenters noted that providing
of dual intent is beyond the scope of I765 application to request an initial employment authorization in 1-year
this regulation. DHS notes, however, EAD based on compelling increments would cause certain
that individuals in these categories can circumstances at any time before the beneficiaries to incur filing fees and
be the beneficiaries of approved Form I expiration of his or her nonimmigrant other expenses on an annual basis.
140 petitions while continuing to status. For approval, the applicant must Another commenter requested that
maintain nonimmigrant status. be able to demonstrate that he or she certain individuals be granted
Comment. One commenter requested meets the criteria in 8 CFR 204.5(p)(1) indefinite renewals for 3 years if they
that DHS grant compelling or (2) on the date of filing, including have been in H1B status for 10 years
circumstances EADs to individuals in and have had their Form I140 petitions
the employment-based fourth preference 52 See AC21 104(a). approved for 5 years. Similarly, one
commenter requested employment at the time the application is filed. DHS EADs and were concerned that, as
authorization under compelling designed this provision specifically to proposed, the provisions were internally
circumstances for up to 3 years so that assist those individuals who otherwise inconsistent and even in conflict with
the validity period would be in line may apply for and be granted an one another. In particular, commenters
with the initial periods of petition immigrant visa or adjustment of status stated that interactions between the
approval for individuals in the H1B but for the unavailability of an priority date limitations proposed for
and L1 classifications and consistent immigrant visa. The Department initial applicants (proposed 8 CFR
with section 104 of AC21. Commenters determined that linking eligibility for an 204.5(p)(1)(ii)), eligibility for renewals
contended that such proposals would EAD based on compelling without demonstrating compelling
provide increased certainty and the circumstances to the authorization to circumstances (proposed 8 CFR
ability to plan, while minimizing the issue an immigrant visa will provide 204.5(p)(3)(i)(B)), and ineligibility
possibility of employment disruptions. stability to individuals already on the grounds (proposed 8 CFR 204.5(p)(5)(ii))
Response. DHS disagrees that a single path to lawful permanent residence. The may prevent some eligible individuals
grant of employment authorization Visa Bulletin notifies individuals from renewing their compelling
under compelling circumstances should whether visas are authorized for circumstances EADs.
last longer than 1 year. The compelling issuance. Response. DHS agrees with
circumstances provision is meant to be At the same time, DHS also wants to commenters that the final rule needs to
a stopgap measure for nonimmigrant ensure that foreign workers whose clarify when an applicant can qualify
workers facing particularly difficult priority dates have already been reached for a renewal by demonstrating
circumstances outside of their control, take appropriate measures to apply for compelling circumstances or based
such as a serious illness, employer permanent residence, as the compelling solely on his or her priority date.
retaliation, significant disruption to the circumstances EAD is not a substitute Moreover, DHS recognizes that the
employer, or other substantial harm. for lawful permanent residence. DHS, proposed regulatory language at
The compelling circumstances EAD is therefore, believes it is reasonable to 204.5(p) could have led commenters to
not a substitute for completing the condition compelling circumstances conclude that the provision was
employment-based immigrant visa EADs to the unavailability of immigrant internally inconsistent or contradictory.
process or for obtaining nonimmigrant visas, thereby ensuring that foreign In the NPRM, DHS proposed to require
classifications authorizing foreign workers avail themselves of the initial applicants to show that an
nationals to work or live in the United opportunity to apply for and obtain immigrant visa was not immediately
States. While some nonimmigrants may lawful permanent residence when able available to the principal beneficiary.
experience compelling circumstances to do so. See proposed 8 CFR 204.5(p)(1)(ii). For
that last beyond one year, DHS Comment. A few commenters renewals, DHS proposed that principal
anticipates many of the compelling requested that DHS clarify which chart beneficiaries would need to demonstrate
circumstances presented will be in the newly reformatted Visa Bulletin either that they continue to face
resolved within that timeframe. DHS would govern the eligibility for compelling circumstances or that their
thus intends to require confirmation individuals seeking employment priority dates are 1 year or less (either
that a foreign nationals circumstances authorization based on compelling before or after) from the date visas are
justify an extension of employment circumstances (i.e., the Application authorized for issuance according to the
authorization each year to ensure that Final Action Date chart or the Dates current Visa Bulletin. See proposed 8
such employment authorization for Filing Employment-Based Visa CFR 204.5(p)(3)(i)(A) and (B). In
continues to be merited. DHS confirms Applications chart). addition, DHS proposed at
that employment authorization for Response. All references in 8 CFR 204.5(p)(5)(ii) that an individual
compelling circumstances will be 204.5(p) to the Visa Bulletin dates are to would be ineligible to apply for or
granted only in 1-year increments. the Final Action Date chart. DHS renew a compelling circumstances EAD
intends that this date will be used to if [t]he principal beneficiarys priority
viii. Visa Bulletin Dates determine eligibility for both the initial date is more than 1 year beyond the date
Comment. Several commenters and renewal applications for immigrant visas were authorized for
generally objected to conditioning employment authorization. To provide issuance according to the Visa Bulletin
compelling circumstances EADs on the clarification in this regard, DHS in effect at the time of filing.
unavailability of immigrant visas, and modified 8 CFR 204.5(p)(1)(ii) by As noted by commenters, the
they requested that DHS remove all replacing the phrase immediately proposed ineligibility ground based on
references to the State Department Visa available with authorized for a priority date being current for more
Bulletin in the compelling issuance to signal that the relevant date than one year was superfluous with
circumstances provision. Commenters for eligibility for an initial grant of respect to initial applicants (who were
asserted that this restriction weakens employment authorization would be the required to show that a visa was not
the compelling circumstances provision Final Action Date for the principal immediately available), as their
because a beneficiary with an available beneficiarys preference category and eligibility would have already ended at
immigrant visa may still have a lengthy country of chargeability that was the time their immigrant visa was
wait before receiving independent effective on the date the application for authorized for issuance. The proposed
employment authorization. Other employment authorization, or successor ineligibility ground was also
commenters objected to the references form, is filed. superfluous with respect to the second
to priority dates in the regulatory text renewal criterion (i.e., that the
because of the unpredictability of the ix. Renewals of Employment difference between the beneficiarys
Visa Bulletins priority date movement. Authorization Granted Pursuant to priority date and the date visas are
Response. DHS disagrees with Compelling Circumstances authorized for issuance must be 1 year
commenters who requested eliminating Comment. Several commenters or less), because that ineligibility
the requirement that an immigrant visa expressed confusion about the ground was already embedded within
must not be immediately available and regulatory provisions governing that renewal ground. In addition, there
authorized for issuance to an individual renewals of compelling circumstances was significant confusion as to the
interaction between the proposed Comment. Several commenters application is filed indicates that the
ineligibility ground and the first ground suggested that individuals with beneficiarys priority date is not
for renewal (i.e., that the beneficiary compelling circumstances EADs be able authorized for immigrant visa issuance,
continues to demonstrate compelling to renew such EADs without restriction applicants can seek renewal of their
circumstances). DHS acknowledges that (i.e., without needing to meet the employment authorization based on a
the proposed ineligibility ground was proposed eligibility criteria for renewal). showing of new or continuing
superfluous to the initial eligibility Commenters submitted a variety of compelling circumstances.
ground and the second renewal reasons for requesting this revision, In addition, DHS believes that
criterion, and that the provisions were including that such a change would: Be important additional flexibility for
confusing as written. Therefore, without truly useful for the immigrant principal beneficiaries of Form I140
changing the eligible population as community; help stop employer petitions results from retaining the
identified in the NPRM for the exploitation of workers; provide greater second ground for renewal, which
compelling circumstances EAD, DHS certainty to immigrants waiting to allows applicants to renew employment
has streamlined the ineligibility and become LPRs; and help address the lack authorization without a showing of
renewal grounds to eliminate any of available immigrant visas. In compelling circumstances if the
superfluous overlap and to clarify addition, several commenters applicants priority date is close to
eligibility for renewal under the Final questioned the usefulness of allowing becoming or recently became eligible for
Rule. for renewal where the applicants immigrant visa issuance (i.e., is one year
In response to public comment, DHS priority date is less than 1 year from the or less either before or after the date on
is simplifying the renewal criteria for current cut-off date for the relevant which immigrant visas are authorized
compelling circumstances EADs. As employment-based category and country for issuance). This provision recognizes
modified, the final rule makes clear that of nationality in the most recently that applicants, most of whom are high-
a principal beneficiary seeking to renew published Visa Bulletin. Some skilled workers who have invested a
an EAD based on compelling commenters sought clarification about substantial amount of time in the United
circumstances remains eligible if his or the situations in which an applicant States, are at advanced stages in the
her priority date is not authorized for may seek renewal of compelling immigration process and, after waiting
immigrant visa issuance with respect to circumstances EADs. many years, may be able to obtain
his or her preference category and Response. DHS agrees that the lawful permanent residence in the near
country of chargeability based on the renewal of the employment future. If the immigrant visa has
Final Action Date in the Visa Bulletin in authorization under this provision recently been authorized for issuance or
effect on the date the renewal could be based on the same compelling may be authorized for issuance in the
application is filed. This modification circumstances that supported the initial near future, it is consistent with the
tracks the eligibility criteria for the grant of a compelling circumstances purpose for this provision to continue
initial application for the EAD, and EAD. Moreover, DHS clarifies that the employment authorization, even if
therefore should be readily understood individuals may also base their renewal the compelling circumstances that
by all parties, making it easier for both applications on new compelling justified the initial employment
the public and USCIS to determine circumstances that may exist on the date authorization no longer exist, to avoid
whether someone is eligible for renewal of filing the renewal application. the possibility that there will be a
under that basis. DHS retains the second DHS disagrees with the suggestion significant break in employment
renewal criterion where a principal that no additional restrictions tied to authorization late in an individuals
beneficiary will be eligible to renew the authorization for immigrant visa lawful permanent residence process that
EAD if his or her priority date is one issuance should apply to renewal would jeopardize his or her ultimate
year or less (either before or after) of the eligibility. DHS intends this provision to eligibility to obtain lawful permanent
Final Action Date in the Visa Bulletin in provide short-term relief to certain high- resident status or unnecessarily disrupt
effect on the date the renewal skilled workers who are well on their the business of his or her employer.
application is filed. For purposes of way to LPR status to help them when Because there was confusion reflected
greater clarity, in this final rule DHS has they are facing compelling in many comments with regard to
included an illustrative example in the circumstances while they wait for their eligibility to make a renewal request and
regulatory text applicable to renewal immigrant visas to become available. the relevance of the Visa Bulletin, DHS
applications by principal beneficiaries Consistent with that intent, applicants has revised the regulatory text to foster
based on the Visa Bulletin in effect on seeking to benefit from employment a better understanding and simplify the
the date the renewal application is filed. authorization based on compelling use and implementation of the
In addition to these changes, DHS made circumstances must also continue to compelling circumstances EAD renewal
additional edits in this provision to pursue lawful permanent residence. process by both applicants and USCIS
clarify the Visa Bulletin in effect on the Therefore, DHS believes it appropriate adjudicators. DHS has edited the text at
date the application for employment to deny a renewal application, even 8 CFR 204.5(p)(3)(i)(A) to mirror the
authorization is filed establishes the when compelling circumstances requirements for initial eligibility, as
Final Action date for purposes of a continue to be shown, in cases where well as to eliminate a separate
renewal application. the applicant should already have had ineligibility ground (see proposed 8 CFR
Together, the renewal criteria operate ample time to obtain an immigrant visa 204.5(p)(5)(ii)) that caused great
to preclude eligibility to individuals for and become a lawful permanent confusion among commenters. In
whom a visa has been authorized for resident. Thus, renewal will not be summary, in the final rule at 8 CFR
issuance for over one year. Therefore, granted under any circumstances if the 204.5(p)(3)(i), the principal beneficiary
DHS removed the separate ineligibility applicants priority date is more than may apply for a renewal of his or her
criteria from 204.5(p)(5) as one year earlier than the applicable employment authorization in one of two
unnecessary. DHS believes that these Final Action date on the Visa Bulletin ways.
changes should eliminate the confusion in effect at the time of filing the renewal First, 204.5(p)(3)(i)(A) allows the
or inconsistency in the regulatory application. In cases in which the Visa principal beneficiary to apply for
provisions. Bulletin at the time of a renewal renewal of employment authorization if
he or she continues to face compelling difference between the beneficiarys authorization granted pursuant to
circumstances and an immigrant visa is priority date and the Final Action Date. compelling circumstances will be
not authorized for issuance to the To avoid further confusion, DHS included.
principal beneficiary based on his or her provides the following examples to
facilitate a better understanding of the x. Automatically Granting Advance
priority date listed in the Visa Bulletin
eligibility requirement for renewal with Parole to Individuals Who Have
for the applicable preference category
and country of chargeability in effect on respect to the Visa Bulletin, and DHS Compelling Circumstances EADs
the date of filing. This first renewal has incorporated one of these examples Comment. Some commenters
ground mirrors the initial eligibility in the regulatory text: requested that DHS automatically
requirements set forth at final The first example involves a Visa provide advance parole 53 in
204.5(p)(1)(ii) and (iii). Bulletin Final Action cut-off date of conjunction with compelling
Consequently, under this final rule, a November 1, 2000 for the beneficiarys circumstances EADs. Some of these
principal beneficiary who continues to preference category and country of commenters indicated that the President
experience compelling circumstances, chargeability. If the beneficiary is basing had promised to grant advance parole to
and whose immigrant visa is not the renewal application on compelling certain individuals, and they urged DHS
authorized for issuance, may be able to circumstances, his or her priority date to provide such an immigrant benefit
renew the compelling circumstances must be on or after November 1, 2000 here. The commenters also requested
EAD if DHS determines that the to apply for a renewal under that DHS allow such individuals to
issuance of employment authorization is 204.5(p)(3)(i)(A), as immigrant visas adjust their status to lawful permanent
justified. will not be authorized for issuance to residence after being paroled into the
Second, final 8 CFR 204.5(p)(3)(i)(B) beneficiaries with priority dates on or United States once an immigrant visa
allows the principal beneficiary to apply after November 1, 2000. became available to them.
for a renewal of his or her employment The second example again involves Response. Section 212(d)(5)(A) of the
authorization without having to show a Visa Bulletin Final Action cut-off date INA, 8 U.S.C. 1182(d)(5)(A), provides
compelling circumstances if, based on of November 1, 2000, but the beneficiary the Secretary with discretionary
his or her priority date, he or she is near is seeking a renewal under 8 CFR authority to parole an individual into
the date that an immigrant visa could be 204.5(p)(3)(i)(B), which provides that the United States temporarily only on
issued under the applicable preference [t]he difference between the principal a case-by-case basis for urgent
category and country of chargeability. beneficiarys priority date and the date humanitarian reasons or significant
Specifically, the difference between the upon which visas are authorized for public benefit. See also 8 CFR 212.5.
principal beneficiarys priority date and issuance for the principal beneficiarys Neither the President nor the Secretary,
the Final Action Date must be 1 year or preference category and country of in his November 20, 2014
less according to the Visa Bulletin in chargeability is 1 year or less according memorandum, specified that parole may
effect on the date the renewal to the current Visa Bulletin on the date be extended to foreign workers who are
application is filed. This 1-year the application for employment the beneficiaries of either a pending or
limitation extends both before and after authorization is filed. Because this 1- an approved Form I140 petition.54 A
the specified Final Action Date, thereby year window extends both waysbefore DHS officer may, however, grant parole
allowing beneficiaries whose priority and after the specified Final Action to individuals who are beneficiaries of
dates are 1 year or less before the Datethe beneficiarys priority date can approved Form I140 petitions if, in the
relative current priority date, as well as be as early as October 31, 1999 or as late officers discretion, the parole either
those beneficiaries whose priority dates as October 31, 2001. Beneficiaries would be for urgent humanitarian
are 1 year or less after the relative qualifying for renewal under this reasons or provide a significant
current priority date, to request renewal alternative need not show compelling public benefit.
of their EADs. Allowing for renewals of circumstances to meet the eligibility Importantly, as already noted,
employment authorization without a criteria. See final 8 CFR individuals who are seeking lawful
demonstration of continuing compelling 204.5(p)(3)(i)(B). If, however, the permanent residence based on
circumstances provides a bridge for beneficiarys priority date is on or before classification as an employment-based
those individuals who may be issued an October 30, 1999, he or she would be immigrant are generally barred by
immigrant visa in the near future. As ineligible to renew the compelling statute from applying to adjust their
enumerated in the proposed rule at 8 circumstances EAD under the final rule.
status in the United States if they are
CFR 204.5(p)(5), this renewal ground If the priority date is on or after
not in lawful nonimmigrant status. See
incorporates an important DHS policy November 1, 2001, the beneficiary could
INA 245(c)(2) and (7), 8 U.S.C.
goal of encouraging individuals to not seek a renewal under the priority
1255(c)(2) and (7). Although INA 245(k),
become lawful permanent residents by date range described in final 8 CFR
8 U.S.C. 1255(k), enables certain
limiting eligibility for a compelling 204.5(p)(3)(i)(B), but may be eligible to
individuals who failed to continuously
circumstances EAD to only those whose renew if he or she is able to demonstrate
maintain a lawful status for up to 180
priority dates have been current for one continuing compelling circumstance
year or less according to the Visa described in final 8 CFR 53 As explained on the Form I131, Application
Bulletin in effect on the date the 204.5(p)(3)(i)(A). for Travel Document, and the form instructions,
renewal is filed. DHS believes this Finally, to implement this provision, advance parole documents allow individuals to
provides a reasonable window during DHS is revising Form I765 and return to a United States port of entry after
accompanying form instructions with temporary foreign travel. See USCIS Web site, Form
which an individual may either apply
I131, Application for Travel Document, available

for adjustment of status, and thereby be this final rule and will conduct public at https://www.uscis.gov/i-131; see also 212(d)(5) of
issued employment authorization outreach and publish guidance the INA, 8 U.S.C. 1182(d)(5).
pursuant to that filing, or complete the explaining the filing requirements and 54 See Memo from Jeh Charles Johnson, Secretary
immigrant visa process abroad. eligibility criteria for this new of Homeland Security, Policies Supporting U.S.
High-Skilled Business and Workers (Nov. 20,
Additionally, DHS has revised this employment authorization category. 2014), available at http://www.dhs.gov/sites/
provision to clarify which Visa Bulletin Information about renewing default/files/publications/14_1120_memo_
governs for purposes of calculating the applications for employment business_actions.pdf.
days to apply for adjustment of status, suffering from a lack of job mobility have a lawful immigration status either
these individuals must be present in the while awaiting available immigrant before or after receiving DACA and
United States pursuant to a lawful visas. These commenters highlighted instead are simply provided with relief
admission. Individuals who are paroled the benefits of independent employment from removal for periods of two years at
into the United States, however, are not authorization, including freedom from a time, if they remain eligible. DACA is
considered to be admitted into the what they perceive as restrictive and a discretionary policy related to
United States. See INA 101(a)(13)(B) immobile H1B employment, increased enforcement and removal and is not
and 212(d)(5)(A), 8 U.S.C. 1101(a)(13)(B) opportunity for upward mobility with comparable to individuals with
and 1182(d)(5)(A). Therefore, an their current employer, and greater nonimmigrant status. DHS considers
individual who is granted advance mobility within the U.S. job market in DACA requests pursuant to an exercise
parole, leaves the United States, and general. One commenter stated that of discretion on a case-by-case basis.
reenters on parole is not eligible for denying independent employment Nonimmigrant workers are in a more
adjustment of status pursuant to section authorization for nonimmigrants with advantageous position than DACA
245(k). approved Form I140 petitions creates recipients with respect to the
As such, granting advance parole to the equivalent to modern day slavery for immigration laws by virtue of being in
individuals who receive compelling nonimmigrant employees, while DACA the United States in a lawful
circumstances EADs would not, as a recipients are allowed to work for immigration status. Among other things,
rule, make them eligible for whatever employer they choose. A presence in nonimmigrant status is not
employment-based adjustment of status number of commenters stated that their a basis for removability, family members
or otherwise enhance stability or dependent children, who came to the of nonimmigrants are typically able to
certainty in the efforts of these United States legally, should be granted obtain benefits through the
individuals to become lawful permanent the same benefits as DACA recipients. nonimmigrant, and nonimmigrants are
residents. DHS thus will not Several commenters expressed the better situated with respect to eligibility
automatically grant advance parole in opinion that being in the United States to pursue lawful permanent residence
conjunction with all compelling in a legal status is more difficult than and, thereafter, U.S. citizenship.
circumstances EADs. However, to better being in the United States under a grant
assist individuals with compelling G. Nonimmigrant Grace Periods
of DACA.
circumstances EADs who need to travel, Response. As an initial matter, 1. Description of Final Rule and
DHS will consider granting advance although DACA requestors do not have Changes From NPRM
parole, as appropriate for urgent to demonstrate compelling
humanitarian reasons or significant Under the final rule, DHS may
circumstances, DACA recipients, like provide grace periods of up to 10 days
public benefit, to such individuals on a other deferred action recipients, must
case-by-case basis. before the petition validity period (or
show economic necessity for other authorized validity period) begins,
xi. Employment Authorization Parity for employment.55 Further, DACA is and of up to 10 days after the validity
Legal and Undocumented Workers, strictly limited to individuals who are period ends to individuals in certain
Including Individuals Granted Deferred removable from the United States, meet employment-authorized nonimmigrant
Action for Childhood Arrivals (DACA) other certain guidelines (e.g., that they visa classifications that previously have
Comment. Commenters asked why came to the United States under the age not been afforded these periods, namely
Deferred Action for Childhood Arrivals of sixteen; continuously resided in the the E1, E2, E3, L1 and TN
(DACA) recipients are not required to United States since June 15, 2007; were classifications. See final 8 CFR
demonstrate compelling circumstances under the age of 31 as of June 15, 2012; 214.1(l)(1). Similar grace periods are
in order to obtain employment and have not been convicted of certain currently available to nonimmigrants
authorization and questioned whether crimes or otherwise pose a threat to with H1B, O, and P classification.
being undocumented in the United national security or public safety), and Extending such grace periods in these
States is sufficient to demonstrate merit a favorable exercise of other classificationswhich, like in the
compelling circumstances. These discretion.56 As a result, the DACA H1B, O, and P classifications, are
commenters noted that applying process does not provide incentives for generally available to high-skilled
compelling circumstances only to individuals to unlawfully migrate to the individuals with authorized stays of
nonimmigrants seeking an independent United States. DACA does not apply to multiple yearspromotes stability and
basis of employment authorization and all undocumented individuals who flexibility for such workers, thereby
not to DACA recipients sets an unfair entered the United States as children. furthering goals consistent with those
higher bar for nonimmigrants and Even for those individuals who do underlying AC21.
rewards individuals who came to the satisfy the DACA guidelines, not all In response to public comment, DHS
United States unlawfully relative to individuals receive DACA because of is striking a phrase from the proposed
those who have abided by U.S the discretionary nature of the process. regulation that was unnecessarily
immigration laws. DHS disagrees with commenters who limiting and not fully consistent with
Many commenters stated that granting contend that the limitations placed on how existing 10-day grace periods may
employment authorization to DACA the compelling circumstances EAD give be used by H, O and P nonimmigrants.
recipients, while declining to do so for DACA recipients an advantage over Specifically, DHS is deleting from
nonimmigrants, provides a significant nonimmigrant workers. DACA proposed 8 CFR 214.1(l)(1) the phrase
advantage to undocumented individuals recipients are individuals who are that could have been read to limit use
and encourages unauthorized removable from the United States but of a 10-day grace period only to
immigration. Other commenters stated whose removal is deferred. They do not prepare for departure from the United
that it is unfair to provide employment States or to seek an extension or change
55 8 CFR 274a.12(c)(14).
authorization to undocumented 56 See
of status based on a subsequent offer of
DACA Frequently Asked Questions at
individuals through DACA and not to https://www.uscis.gov/humanitarian/consideration-
employment. As noted, this deletion
nonimmigrants abiding by complex U.S. deferred-action-childhood-arrivals-process/ will further the purpose of the NPRM
immigration laws and currently frequently-asked-questions. proposal to extend to the E1, E2, E
3, L1 and TN nonimmigrant apply for and, if otherwise eligible, be INA 214(g)(8), 8 U.S.C. 1184(g)(8).
classifications a benefit similar to the granted an extension of stay or change Third, this rulemaking is intended to
one already available to the H, O, and of status. The beneficiary may also benefit high-skilled workers and their
P nonimmigrant classifications. DHS is commence employment under H1B employers by streamlining the processes
also making minor technical edits to portability per 214.2(h)(2)(i)(H), for employer sponsorship of such
this provision. discussed in some detail below, if workers for immigrant visas, increasing
Under the final rule, DHS may also otherwise eligible. To further effectuate job portability and otherwise providing
authorize a grace period of up to 60 days the intended purpose of these stability and flexibility for such
in the E1, E2, E3, H1B, H1B1, L provisions, DHS is also making workers, and providing additional
1, and TN classifications during the clarifying edits to the regulatory text at transparency and consistency in the
period of petition validity (or other 214.1(l)(2), and (l)(3). application of DHS policies and
authorized validity period). See final 8 practices related to high-skilled worker
CFR 214.1(l)(2). In response to public 2. Public Comments and Responses programs. Because several of the
comments, DHS is retaining this i. Length of the 10-Day Grace Periods additional nonimmigrant classifications
provision while adding the O1 visa proposed by commenters are not
Comment. While numerous
classification to the list of nonimmigrant focused on facilitating the employment
commenters supported the proposal to
classifications eligible for the 60-day of high-skilled workers by employers in
make 10-day grace periods available to
grace period. To enhance job portability the United States, DHS believes
additional high-skilled nonimmigrant
for these high-skilled nonimmigrants, providing grace periods in these
this rule establishes a grace period for workers, one commenter suggested that
classifications would not align with the
up to 60 consecutive days, or until the the 10-day grace periods be lengthened
purpose of this rule. For these reasons,
existing validity period ends, whichever to 15 or 30 days to provide
DHS believes that the eligible
is shorter, whenever employment ends nonimmigrant workers additional time
classifications added to the final rule
for these individuals. The individual to wrap up affairs after extended periods
should be limited to individuals
may not work during the grace period. of stay in the United States.
admissible in E1, E2, E3, L1 or TN
An individual may benefit from the 60- Response. DHS is not adopting the classification, as well as their
day grace period multiple times during commenters suggestion to provide dependents.
his or her total time in the United longer grace periods of up to 15 or 30
States; however, this grace period may days. DHS has long provided 10-day iii. Miscellaneous Comments on 10-Day
only apply one time per authorized grace periods in the H1B, O, and P Grace Periods
nonimmigrant validity period. DHS nonimmigrant classifications, and DHS Comment. A few commenters
believes that limiting this grace period has determined that such grace periods suggested that DHS clarify whether the
to one instance during each authorized are sufficient to provide individuals in 10-day grace periods will be reflected on
validity period balances the interests of these classifications the time they need the approved petition or whether those
nonimmigrant flexibility with the need to initiate or conclude their affairs in the periods may be automatically assumed
to prevent abuse of this provision. United States. Because individuals who by nonimmigrant workers. Another
This 60-day grace period further obtain E1, E2, E3, L1 or TN commenter noted that CBP usually
supports AC21s goals of providing classification are similarly situated to annotates the Form I94 when admitting
improved certainty and stability to those who obtain H1B, O, or P an individual in H1B classification to
nonimmigrants who need to change jobs classification, DHS believes 10-day reflect the grace period of up to 10 days
or employers. The 60-day grace period grace periods would also be sufficient at the end of the H1B authorized
would provide needed flexibility to for nonimmigrants in the former period of stay, but that the USCIS-issued
qualifying nonimmigrants who face classifications. Form I797 Notice of Action for an
termination of employment prior to the ii. Eligibility for 10-Day Grace Periods approval of an extension of stay or
end of their petition validity periods. change of status, which includes a Form
The grace period, for example, allows Comment. Many commenters I94, does not reflect that grace period.
such nonimmigrants to remain in the encouraged USCIS to broaden the This commenter further explained that,
United States without violating their classes of individuals eligible for the 10- accordingly, if an individual is granted
status and potentially obtain new job day grace periods to include other H1B status pursuant to an extension of
offers from employers that seek to file nonimmigrant worker visa stay or change of status and remains in
new nonimmigrant petitions, and classifications. Commenters specifically the United States in H1B status for the
requests for an extension of stay, on requested that DHS add the following petitions authorized validity period
their behalf. In such cases, even though visa classifications to proposed 8 CFR (i.e., without leaving and seeking
prior employment may have terminated 214.1(l)(1): A, H1B1, H2B, H3, G, I, readmission into the United States as an
several weeks prior to the filing of the O, P, and Q. H1B nonimmigrant), he or she will not
new petition, DHS may consider such Response. DHS declines to adopt have any evidence of having been
an individual to have not violated his or these suggestions. First, DHS already granted the grace period. Finally, one
her nonimmigrant status and allow that provides a grace period of up to 10 days commenter requested that USCIS add
individual to extend his or her stay with to some of these classifications, the following language to its Form I797
a new petitioner, if otherwise eligible. If including the H2B, H3 O and P approval notices: Beneficiary may be
the new petition is granted, the categories. See 8 CFR 214.2(h)(13)(i)(A), admitted up to 10-days prior to the
individual may be eligible for an 8 CFR 214.2 (o)(10) and 8 CFR 214.2 validity period of the petition and will
additional grace period of up to 60 days (p)(12). Second, DHS is unable to extend have a 10-day grace period at the end of
in connection with the new authorized authorized periods of admission to H nonimmigrant status to depart the
validity period. 1B1 nonimmigrants through the use of United States or apply for another
Finally, the final rule at 8 CFR such grace periods. The INA specifies nonimmigrant or immigrant status.
214.1(l)(3) makes clear that the that the admission for H1B1 Response. The commenters correctly
nonimmigrant worker, during either a nonimmigrants shall be 1 year, with point out that USCIS does not presently
10-day or 60-day grace period, may extensions in 1 year increments. See provide grace periods of up to 10 days
before or after petition validity approval regulatory provision allowing 10-day currently engage in under the existing
when issuing Form I797 or Form I94, grace periods for O and P 10-day grace period.
whether such issuance relates to an nonimmigrants. See 8 CFR 214.2(o)(10) Comment. One commenter requested
initial request for nonimmigrant status, and (p)(12). DHS maintains broad that DHS add a regulatory provision that
a change of nonimmigrant status, or an discretion when admitting individuals would deem nonimmigrants in a 10-day
extension of such status. Under existing in nonimmigrant classifications, grace period as being in a period of stay
regulations, DHS does not consider the including when determining whether to authorized by the Secretary.
10-day grace periods to be automatically grant grace periods to such individuals. Response. Under 8 CFR 214.1(l)(1),
provided; rather, they are provided By statute, DHS has the authority and the 10-day grace period is considered to
through an exercise of discretion on a responsibility to decide which foreign be a period of nonimmigrant stay.
case-by-case basis. USCIS is revising nationals enter the country and under Consistent with existing policy
Form I797 to facilitate consistent what terms and conditions.57 See INA guidance, this is a period of stay
application of the discretionary 10-day 214(a)(1), 8 U.S.C. 1184(a)(1) (providing authorized by the Secretary. Therefore,
grace periods and will continue to that the admission to the United States DHS does not believe additional
explore ways of notifying petitioners of any alien as a nonimmigrant shall be revision to the regulatory text is
and beneficiaries when grace periods for such time and under such conditions necessary.59
are provided. Specifically, DHS is as the [Secretary] may by regulations Comment. One commenter suggested
revising 8 CFR 214.1(l)(1) to clarify that prescribe); INA 215(a)(1), 8 U.S.C. that USCIS allow eligible nonimmigrant
10-day grace periods may be authorized 1185(a)(1) (authority to establish workers who have experienced a
as a matter of discretion, on a case-by- reasonable regulations governing aliens cessation of employment and were
case basis, to nonimmigrants seeking entry or admission to and departure unable to find work during the 60-day
changes of status or extensions of stay. from the United States).58 DHS has grace period, to use the additional 10-
See revised 8 CFR 214.1(l)(1). DHS drafted the grace period provision to day grace period so that they can
further notes that if such individuals clarify that it maintains discretion to prepare to depart the United States.
travel abroad and seek admission at a admit an individual with a full 10-day Response. DHS declines to adopt the
port of entry upon return, they may grace period, some part of that period, commenters suggestion to allow eligible
show the Form I797 to a CBP officer or no grace period at all, and to assure nonimmigrant workers the ability to add
who has the discretion to grant 10-day consistent administration of the grace a 10-day grace period to the end of any
grace periods to eligible H1B, E1, E period provision. 60-day grace period. DHS intends the
2, E3, L1 and TN nonimmigrant Additionally, in response to public 60-day grace period in 8 CFR 214.1(l)(2)
workers. See INA 214(a)(1), 8 U.S.C. comment, DHS is removing from the 10- to afford eligible high-skilled workers
1184(a)(1); final 8 CFR 214.2(l)(1). day grace period provision in 8 CFR sufficient time following a cessation of
Comment. A few commenters 214.1(l)(1) the clause that reads, to employment to pursue other
requested that USCIS revise the prepare for departure from the United employment opportunities, seek a
proposed rule at 8 CFR 214.1(l)(1), States or to seek an extension or change change or extension of status, or make
which states that eligible of status based on a subsequent offer of the preparations necessary to depart the
nonimmigrants may be admitted . . . employment. DHS is removing this country. As the 10-day grace period at
for the validity period of the petition clause to avoid an unintended the end of a period of nonimmigrant
. . . plus an additional period of up to limitation on the use of such grace validity is intended to serve the same
10 days. Because of the use of the word periods and to maintain consistency purposes, providing both would be
may, commenters believed the with grace periods already enjoyed by unnecessary and duplicative. DHS
proposed provision was more limiting H, O and P nonimmigrants. While DHS notes, however, that in limited instances
than the existing regulatory language at maintains that the 10-day grace period it may be possible for a nonimmigrant
8 CFR 214.2(h)(13)(i)(A), which states commencing when the relevant validity worker to qualify for both grace periods.
that an H beneficiary shall be admitted period expires is typically used by Use of both grace periods may occur, for
. . . for the validity period of the individuals to prepare for departure instance, when a nonimmigrant worker,
petition, plus a period of up to 10 days. from the United States or to extend or upon his or her last admission, was
The commenters requested that DHS change status, DHS determined upon provided with a grace period of up to 10
harmonize these provisions and clarify further examination that the clause is days at the expiration of the validity
whether, under the final rule, H1B unnecessarily limiting and does not period, and then experiences a cessation
nonimmigrants would be eligible for a fully comport with how the existing 10- of employment in the last 60 days of the
discretionary (may) grace period of up day grace period may be used by H, O validity period. In these limited cases,
to 10 days, whereas other H and P nonimmigrants. Such grace DHS may consider the nonimmigrant to
nonimmigrant classifications would be periods are also used for other have maintained his or her status for up
eligible for a mandatory (shall) grace permissible non-employment activities to 60 days immediately preceding the
period of up to 10 days. such as changing ones status to that of expiration of the validity period, and
Response. DHS declines to revise the a dependent of a nonimmigrant spouse the nonimmigrant may also use the 10-
language in 8 CFR 214.1(l)(1) in or vacationing prior to departure. DHS day grace period after the validity
response to commenters suggestions. clarifies that, under this final rule, period ends.
DHS chose to use the word may, as nonimmigrants in E1, E2, E3, L1, or
opposed to the word shall, in TN status may engage in the same types iv. Length of the 60-Day Grace Period
accordance with Federal regulatory of activities during the 10-day grace Comment. Numerous commenters
drafting guidelines, to clarify that USCIS period that H, O, and P nonimmigrants expressed support for the proposal
and CBP have the discretionary
authority to limit periods of stay for all 57 Id. 59 For further guidance on periods of authorized
nonimmigrant classifications, including 58 The President assigned to the Secretary of stay, please see Neufeld May 2009 Memo
Homeland Security (acting with the concurrence of (describing various periods of authorized stay),
H nonimmigrants, consistent with the Secretary of State) the functions under INA available at https://www.uscis.gov/sites/default/
current practice. Use of may rather 215(a) with respect to noncitizens. Exec. Order No. files/USCIS/Laws/Memoranda/Static_Files_
than shall is also consistent with the 13323, 69 FR 241 (Dec. 30, 2003). Memoranda/2009/revision_redesign_AFM.PDF.
establishing a 60-day grace period for could lose their jobs more than once suggested by commenters, DHS believes
certain nonimmigrant classifications, during this time. that most of the underlying concerns are
including support for 60 days as Many commenters stated that the term addressed by these clarifications made
sufficient time to find a new job. one-time in the proposed regulatory to this provision in the final rule.
However, a significant number of other text was unclear, and they did not
understand whether the rule allowed for vi. Classifications Eligible for the 60-Day
commenters believed that the 60-day
one grace period per lifetime, per Grace Period
grace period did not provide sufficient
time for such purposes. These employer, per petition validity period, Comment. Several commenters
commenters suggested the grace period or per total period of stay in any given suggested that DHS broaden the classes
be lengthened to 90 or 120 days. One status. Some commenters proposed eligible for the 60-day grace period to
commenter suggested that USCIS extend alternative approaches to measuring the include other nonimmigrant worker visa
the 60-day grace period to 90 days if a one-time 60-day grace period, including classifications, namely those working in
new petitioning employer submits allowing the 60-day grace period to be A, H3, G, I, O, P, or Q nonimmigrant
evidence to USCIS indicating that it divisible so that the unused portion of status.
provided a written job offer to the a 60-day grace period could be used Response. In response to these
nonimmigrant employee. Other toward a subsequent cessation of comments, DHS is adding O1
commenters suggested giving USCIS the employment within the same period of nonimmigrants to the classes of
authority to extend the grace periods on valid nonimmigrant status, or carried individuals eligible for the 60-day grace
a case-by-case basis. Commenters cited forward into a new validity period and period. DHS has decided not to add the
the difficulties of finding new jobs in aggregated with a subsequent 60-day other nonimmigrant classifications
the current economy, relocation and grace period. requested by commenters because the
state-specific professional licensing Response. Given the number and fundamental purposes of those
requirements, personal responsibilities diversity of comments received, DHS classifications do not align with the
that complicate decision making when recognizes that the proposal did not fundamental purpose of this rule. As
conducting job searches, and the fact clearly convey the intended operation of discussed previously, this rulemaking is
that employer recruitment often takes 8 the 60-day grace period. Accordingly, in intended to benefit high-skilled workers
12 weeks. the final rule, DHS clarifies that, while and their employers by streamlining the
Response. DHS appreciates the many the grace period may only be used by an processes for employer sponsorship of
comments suggesting alternate periods individual once during any single such workers for immigrant visas,
of time for the grace period, and the authorized validity period, it may apply increasing job portability and otherwise
reasons offered in support of a longer to each authorized validity period the providing stability and flexibility for
grace period. However, DHS will retain individual receives. DHS also clarifies such workers, and providing additional
the 60-day grace period, rather than that the grace period can last up to 60 transparency and consistency in the
provide additional time, to encourage consecutive days or until the existing application of DHS policies and
affected high-skilled workers to pursue validity period ends, whichever is practices related to high-skilled worker
other options in the United States in an shorter. As modified, the final rule programs. The additional nonimmigrant
expedient manner. Adding a grace provides that while the nonimmigrant classifications proposed by commenters,
period of up to 60 consecutive days worker may only receive one grace however, are not focused on facilitating
upon cessation of employment allows period in an authorized validity period, the employment of high-skilled workers
the affected high-skilled workers he or she would be eligible for a new by employers in the United States.
sufficient time to respond to sudden or grace period of up to 60 days in Authorizing grace periods for these
unexpected changes related to their connection with any subsequently nonimmigrant classifications would
employment. DHS believes that such authorized validity period. Any days thus not align with the purpose of this
time may be used to seek new available in such a grace period must be rule.
employment, seek a change of status to used consecutively, and unused days Comment. One commenter suggested
a different nonimmigrant classification, may not be used later in the same broadening the classes of individuals
including B1/B2 classification, or authorized validity period or carried who might benefit from a 60-day grace
make preparations for departure from over into a subsequent validity period. period to include those nonimmigrant
the United States. DHS believes that limiting the grace workers whose petitions to extend stay
period to up to 60 days once during or change employers within an eligible
v. Frequency of the 60-Day Grace Period visa classification are denied. This
each authorized nonimmigrant validity
Comment. Some commenters stated period, and not allowing for aggregation commenter opined that the inclusion of
that 60-day grace periods should be or carryover of time, is most consistent petition denials is consistent with the
available multiple times during any with the intent of the grace period: to grace periods purpose of facilitating
authorized validity period, rather than provide a single limited, but reasonable, stability and job flexibility.
one time as described in the NPRM. period of time during which DHS may, Response. DHS declines to adopt the
The majority of these commenters stated when adjudicating an extension of stay commenters suggestion to provide grace
that 60-day grace periods should be or change of status petition, consider the periods after an approved validity
made available to foreign workers at nonimmigrant to have maintained valid period in cases in which petitions
least once per year. Other commenters nonimmigrant status following cessation requesting an extension of stay or a
suggested making 60-day grace periods of employment.60 While DHS change of employers are denied. The 60-
available once every 3 years, once per appreciates the alternative approaches day grace period is intended to apply to
visa extension or change of status, or individuals whose employment ends

each time a foreign worker loses his or 60 The 60-day grace period provision does not prior to the end of their approved
her job. Commenters stated that lengthy limit the scope of employer violations under section validity period. It is not intended to
delays in obtaining lawful permanent 212(n)(2)(c)(vii) of the Act, or the remedies apply after that period based on a denial
available to correct such violations. See 8 U.S.C.
residence can leave foreign workers 1182(n)(2)(c)(vii)(concerning employer failure to
of a benefit request. DHS notes that
waiting for adjustment of status for 10 pay wages during nonproductive time, commonly individuals may be eligible for the 60-
years or more, and it is likely that they referred to as benching). day grace period if they port to new H
1B employers under INA 214(n) and the approval of a petition filed by a new is not making any changes to the H1B
petition for new employment (i.e., the employer. portability provisions proposed in the
H1B petition used to port) is denied Response. DHS declines to provide NPRM, the Department confirms that to
prior to the expiration of the validity employment authorization during the be eligible for H1B portability the new
period of the previously approved grace periods. Consistent with the intent H1B petition must have been filed
petition on which the individuals of the grace periods as proposed, as well while the foreign worker is in H1B
status had been based. However, the 60- as similar grace periods already status or is in a period of authorized
day grace period would not apply where provided in DHS regulations, the final stay based on a timely filed H1B
a petition for new employment under rule does not allow eligible extension petition. Employment
section 214(n), or an extension of stay nonimmigrants to be employed during authorization under the pending H1B
petition with the same employer, is either the 10- or 60-day grace periods portability petition continues until
denied after expiration of the validity unless otherwise authorized under 8 adjudication. See 8 CFR
period. CFR 274a.12. DHS authorizes these 214.2(h)(2)(i)(H)(2).
grace periods simply to facilitate the The final rule allows H1B employers
vii. Clarifying the Meaning of Up To ability of qualified nonimmigrants to
in the 60-Day Grace Period to file successive H1B portability
transition to new employment in the petitions (often referred to as bridge
Comment. A few commenters asked United States, seek a change of status, petitions) on behalf of H1B
DHS to clarify how it would exercise its or prepare to depart the United States. nonimmigrant workers. An H1B
discretion to eliminate or shorten the Consistent with longstanding policy, nonimmigrant worker who has changed
60-day period on a case-by-case basis. DHS declines to authorize individuals employment based on an H1B
These commenters wanted to know the to work during these grace periods. portability petition filed on his or her
circumstances in which DHS might Comment. Several commenters behalf may again change employment
deem it appropriate to eliminate or requested that USCIS allow based on the filing of a new H1B
shorten the grace period, and the nonimmigrant workers to pursue their portability petition, even if the former
manner in which the beneficiary would own businesses during grace periods. H1B portability petition remains
be notified. Response. DHS declines to allow pending. Eligibility for employment
Response. At the time a petitioner nonimmigrant workers to use the grace pursuant to a second or subsequent H
files a nonimmigrant visa petition periods provided by this rule to work to 1B portability petition, however, would
requesting an extension of stay or start their own businesses. The grace effectively depend on (1) whether any
change of status, DHS will determine periods allow qualified nonimmigrants
prior H1B portability petitions have
whether facts and circumstances may to transition to new employment while
been approved or remain pending, and
warrant shortening or refusing the 60- maintaining nonimmigrant status, or
(2) whether the individuals Form I94,
day period on a case-by-case basis. If seek a change of status, or prepare to
issued upon admission or extended
DHS determines credible evidence depart the United States. These grace
pursuant to an approved H1B petition,
supports authorizing the grace period, periods are not intended to provide a
has expired. If the request for an
DHS may consider the individual to separate basis for employment
extension of stay was denied in a
have maintained valid nonimmigrant authorization. Therefore, the final rule
preceding H1B portability petition and
status for up to 60 days following at 8 CFR 214.1(l)(3) provides that an
the individuals Form I94 authorizing
cessation of employment and grant a individual may not work during the
grace period unless otherwise admission in or extension of H1B
discretionary extension of stay or a
authorized under 8 CFR 274a.12. status has expired, a request for an
change of status to another
extension of stay in any successive H
nonimmigrant classification. See 8 CFR
H. Job Portability for H1B 1B portability petition(s) must also be
214.1(c)(4) and 248.1(b). Such
Nonimmigrant Workers denied. See 8 CFR 214.2(h)(2)(i)(H)(3).
adjudications require individualized
1. Description of Final Rule and Successive H1B portability petitions
assessments that consider the totality of
Changes from NPRM thus may provide employment
the circumstances surrounding the
authorization as long as each such H1B
cessation of employment and the The final rule at 8 CFR portability petition separately meets the
beneficiarys activities after such 214.2(h)(2)(i)(H) codifies longstanding requirements for H1B classification
cessation. While many cases might DHS policies implementing H1B job and for an extension of stay.
result in grants of 60-day grace periods, portability under INA 214(n). This
some cases may present factors that do section of the final rule enhances the 2. Public Comments and Responses
not support the favorable exercise of ability of H1B nonimmigrant workers i. H1B Status Requirement
this discretion. Circumstances that may to change jobs or employers by
lead DHS to make a discretionary authorizing them to accept new or Comment. Several commenters
determination to shorten or entirely concurrent employment upon the filing objected to limiting H1B portability to
refuse the 60-day grace period may of a nonfrivolous H1B petition (H1B workers who are in H1B nonimmigrant
include violations of status, portability petition). See INA section status or in an authorized period of stay
unauthorized employment during the 214(n), 8 U.S.C. 1184(n); 8 CFR based on a timely filed H1B extension
grace period, fraud or national security 214.2(h)(2)(i)(H). Under section 214(n), petition. These commenters requested
concerns, or criminal convictions, the H1B nonimmigrant worker must that the regulation permit any worker
among other reasons. have been lawfully admitted into the who was previously issued an H1B
United States, must not have worked visa or otherwise provided H1B
viii. Employment Authorization During nonimmigrant status to port to H1B

the Grace Periods without authorization after such lawful
admission, and must be in a period of employment through a request for a
Comment. Several commenters stay authorized by the Secretary.61 See 8 change of status from another
requested that employment CFR 214.2(h)(2)(i)(H)(1). Although DHS nonimmigrant category. Commenters
authorization be granted during grace stated that the current limitation was
periods so that foreign workers can 61 Neufeld May 2009 Memo (describing various contrary to the plain language of the
begin their new jobs while awaiting periods of authorized stay). INA and congressional intent, outside
the Departments authority, and expressed appreciation for the provision chooses to continue the current
inconsistent with DHSs stated goal of under the assumption that it rendered employment with the same employer.
maximizing job flexibility for skilled the so-called 240-day rule at 8 CFR For these reasons, DHS disagrees with
foreign workers. One commenter stated 274a.12(b)(20), which applies to timely the commenters assessment that this
that such a policy would impose further filed H1B extensions with the same provision renders 8 CFR 274a.12(b)(20)
restrictions and fees on employers in the employer, moot. This assumption was moot.
medical field, deterring them from based on the fact that the proposed
ii. International Travel and Successive
recruiting physicians to work in regulation provided H1B portability to
Portability Petitions (Bridge Petitions)
medically underserved areas. the beneficiary of the H1B extension
Response. DHS disagrees with these petition until such petition was Comment. A few commenters
commenters. USCIS has long interpreted adjudicated by USCIS. The commenter requested that DHS further clarify the
INA 214(n) as allowing only those stated, however, that there was apparent effect of travel outside of the United
nonimmigrants who are currently in H discrepancy between the text of the States on the status of beneficiaries of
1B status, or in a period of authorized proposed H1B portability provision pending bridge petitions. See 8 CFR
stay as a result of a timely filed H1B and the regulatory text at 8 CFR 214.2(h)(2)(i)(H)(3). Many of these
extension petition, to begin employment 274a.12(b)(20), and the commenter commenters expressed the view that
upon the filing by prospective requested that DHS address such DHS prohibited beneficiaries with
employers of new H1B portability discrepancy. pending successive portability petitions
petitions on the nonimmigrants behalf. Response. DHS appreciates the from traveling outside the United States.
H1B portability does not apply to a commenters observations regarding the Other commenters objected to the
nonimmigrant who is in a valid status perceived implications of the portability potential consequences that
other than H1B.62 This interpretation is provision at 8 CFR 214.2(h)(2)(i)(H) on beneficiaries of pending bridge petitions
consistent with the text of INA the 240-day rule under 8 CFR face if they travel internationally,
214(n)(1), which refers specifically to 274a.12(b)(20). DHS notes that there is including having DHS consider their
foreign workers admitted in or a difference in how these rules are petitions abandoned. One commenter
otherwise provided H1B status. See applied, however, and that the asked DHS to extend portability to H
INA 214(n)(1), 8 U.S.C. 1184(n)(1). This portability provision does not in fact 1B nonimmigrants who are employed,
interpretation is also in harmony with render the 240-day rule moot for H1B but are travelling for business or
congressional intent behind the creation nonimmigrants. Under the H1B vacation purposes, asserting that true
of the provision. As noted in the Senate portability provision, if an H1B portability should allow job changes for
Report accompanying the bill, the H1B employer is filing a petition for a change H1B nonimmigrants who are employed
portability provision at INA 214(n), in employment (or an amended petition) by their sponsors, whether the
titled increased portability of H1B for the same employee, then the H1B nonimmigrants are physically in the
status, was intended to respond[ ] to nonimmigrant is authorized to work for United States or not.
concerns raised about the potential for that same employer in the new Response. DHS is aware that H1B
exploitation of H1B visa holders as a employment until the petition is nonimmigrants (and their employers)
result of a specific employers control adjudicated. See 8 CFR have expressed concern about their
over the employees legal status. See S. 214.2(h)(2)(i)(H)(2). However, if an H eligibility for admission to the United
Rep. No. 260, at 2223. The Senate 1B employer files a timely petition for States during the pendency of a new
Report also noted that: [t]he bill allows an employee seeking continuation of the employers petition on their behalf. DHS
an H1B visa holder to change same employment with the same has long acknowledged that otherwise
employers at the time a new employer employer without change, DHS does not admissible H1B nonimmigrants may
files the initial paperwork, rather than consider that to be new employment, travel and be admitted in H1B status
requiring the visa holder to wait for the and thus is ineligible for H1B while H1B portability petitions on
new H1B application to be approved. portability. The statutory provision at their behalf are pending. However,
Id. at 10, 22. For these reasons, DHS INA 214(n)(1) plainly refers to new individuals requesting admission as H
believes this limitation is consistent employment in describing what type of 1B nonimmigrants must prove at the
with Congresss intent. employment is authorized, and port of entry that they are eligible for
Additionally, DHS does not agree that therefore limits the applicability of that admission in that status.63
these clarifications would impose new provision. Thus, while a petition Generally, if an individuals original
restrictions on employers. As noted seeking extension of the same H1B petition has expired prior to the
above, USCIS has long interpreted INA employment for the same employer is time that the beneficiary seeks
214(n) as requiring an individual to pending, employment authorization is admission to the United States, or if
maintain lawful H1B status, or be in an not provided by 8 CFR 214.2(h)(2)(i)(H) such petition is otherwise no longer
authorized period of stay based on a and 8 CFR 274a.12(b)(9), but would be valid, the beneficiary must present
timely filed extension of H1B status, in provided by 8 CFR 274a.12(b)(20), evidence that USCIS has approved a
order to port to a new employer. As which authorizes employment for an new H1B petition to be admitted to the
this is longstanding policy and practice, additional 240 days beginning on the United States. If the original H1B
DHS disagrees that the codification of date of the expiration of the previously petition has not yet expired, however,
such provision would present a new authorized period of stay. the beneficiary of an H1B portability
deterrent to employers recruiting certain Thus, an eligible nonimmigrant may petition who travels abroad may be
H1B nonimmigrants, such as be granted employment authorization admissible if, in addition to presenting
physicians. until the adjudication of the H1B

Comment. One commenter expressed petition if he or she chooses to engage 63 See USCIS Memorandum from Michael A.
qualified support for the proposed H1B in concurrent or new employment Pearson, Initial Guidance for Processing H1B
portability provision at 8 CFR (including new employment with the Petitions as Affected by the American
Competitiveness in the Twenty-First Century Act
214.2(h)(2)(i)(H). The commenter same employer) or may be granted (Public Law 106313) and Related Legislation
employment authorization for a period (Public Law 106311) and (Public Law 106396)
62 See Aytes 2005 Memo, at 7. not to exceed 240 days if he or she (June 19. 2001).
a valid passport and visa (unless visa- petition; rather, a bridge petition is one licensed senior or supervisory
exempt), he or she provides a copy of filed after expiration of the Form I94, personnel, in an occupation that
the previously issued Form I94 or but during the time in which the typically requires licensure. See
Form I797 approval notice for the individual was in a period of authorized proposed 8 CFR 214.2(h)(4)(v)(C)(1).
original H1B petition (evidencing the stay based on a preceding timely filed The proposed rule required petitioners
petitions validity dates), and a Form I extension petition. to provide evidence concerning the
797 receipt notice demonstrating that DHS believes that this rule achieves duties to be performed by the
the new H1B petition requesting an the ameliorative purpose of section prospective beneficiary, as well as the
amendment or extension of stay was 214(n) to enhance the job flexibility of identity, physical location, and
timely filed on the individuals behalf. H1B nonimmigrant workers and credentials of the individual(s) who will
The inspecting officer at the port of minimize the potential exploitation of supervise the foreign worker. In the
entry will make the ultimate such workers by employers. DHS thus final rule, DHS is retaining these
determination as to whether the adopts the proposed provision without requirements with an amendment
applicant is admissible to the United change. clarifying that petitioners must also
States as an H1B nonimmigrant. submit evidence of compliance with
Comment. One commenter opposed iii. Portability to New Employment
Subject to the Cap applicable state requirements. DHS is
conditioning H1B portability on the
approval of the H1B portability adding this requirement, consistent with
Comment. One commenter asked DHS existing policy and practice, to clarify
petition. The commenter noted that if an to clarify H1B portability in the context
employer delays the filing, and chooses that the performance of such work by an
of a change from cap-exempt to cap-
not to pay for premium processing, the unlicensed beneficiary, in an
subject employment. The commenter
employee will not be able to port for occupation that typically requires a
asked DHS to explicitly allow cap-
(potentially) several months. The license, would only be permissible if it
subject employment to begin prior to the
commenter asked DHS to instead is otherwise consistent with applicable
beginning of the fiscal year (October 1),
require that portability be conditioned noting that H1B portability provides state licensure requirements and
on the portability petition being non- employment authorization but not exceptions to such requirements. In
frivolous. Another commenter requested status. such cases, if the evidence demonstrates
that where the H1B nonimmigrants Response. An H1B nonimmigrant that the unlicensed H1B nonimmigrant
Form I94 remains valid and unexpired, workers cap-subject employment may may fully perform the duties of the
the regulation should confirm that the not begin prior to October 1 of the fiscal occupation under the supervision of
denial or withdrawal of a portability year for which his or her cap-subject licensed senior or supervisory
petition in the chain will not result in petition is approved. See INA section personnel, H1B classification may be
the denial of successive portability 214(g)(1), 8 U.S.C. 1184(g)(1). Therefore, granted. See final 8 CFR
petitions. The commenter advocated in the circumstances described by the 214.2(h)(4)(v)(C)(1).
that in such situations, pending commenter, the H1B nonimmigrant Second, DHS is expanding the bases
petitions should remain viable unless worker would not be eligible to begin under which an individual may be
denied. working upon the timely filing of a granted H1B nonimmigrant status
Response. DHS disagrees that an nonfrivolous petition under 8 CFR despite the individuals inability to
employee who is the beneficiary of a 214.2(h)(2)(i)(H). obtain a required license in the United
pending portability petition, whether or States. The proposed rule expressly
not premium processing has been I. H1B Licensing Requirements
allowed for a temporary exception to the
requested, would be unable to change 1. Description of Final Rule and licensure requirement for individuals
jobs for several months. As noted above,
Changes From NPRM who were substantively qualified for
as long as a worker is in H1B
The final rule amends existing DHS licensure but who could not obtain such
nonimmigrant status, or is in a period of
regulations to incorporate the licensure due only to the need to have
authorized stay as a result of a timely
filed H1B petition, that worker may Departments current policy 64 for a Social Security number or
begin new employment upon the filing determining when H1B status may be employment authorization. In response
by the prospective employer of an H1B granted notwithstanding the H1B to public comment, DHS is clarifying
portability petition on the foreign beneficiarys inability to obtain a that a temporary exception to the
workers behalf. There is no requirement required professional license. In licensure requirement may also be
that the portability petition be approved response to public comment, the final available in cases in which the inability
at the time the worker begins the new rule also expands upon the bases for to obtain the license is due to a similar
employment. granting H1B status in such cases. See technical requirement. Final 8 CFR
DHS notes that an H1B beneficiary final 8 CFR 214.2(h)(4)(v)(C). 214.2(h)(4)(v)(C)(2)(i). DHS is expanding
who has a valid and unexpired Form I First, in this final rule, DHS is making this provision in recognition that other
94 remains in a period of authorized clarifications to the proposal in the technical obstacles may exist that would
stay. As long as the petitioner can NPRM covering unlicensed beneficiaries similarly prevent beneficiaries from
demonstrate that the beneficiary who will work, under the supervision of obtaining licenses required for
remained in valid H1B nonimmigrant employment in certain occupations.
status when a successive portability 64 See USCIS Memorandum from Donald Neufeld, Under the final rule, petitioners filing
petition was filed, the timely filed Adjudicators Field Manual Update: Chapter 31: H1B petitions on behalf of such
Accepting and Adjudicating H1B Petitions When beneficiaries are required to submit
petition and associated extension of stay a Required License Is Not Available Due to State
request should not be denied simply Licensing Requirements Mandating Possession of a evidence from the relevant licensing
because of a denial or withdrawal of the Valid Immigration Document as Evidence of authority indicating that the only
preceding portability petition. DHS does Employment Authorization (Mar. 21, 2008) obstacle to the beneficiarys licensure is
(Neufeld Memo March 2008); INS Memorandum
not consider an H1B portability from Thomas Cook, Social Security Cards and the
the lack of a Social Security number, the
petition that is filed before the validity Adjudication of H1B Petitions (Nov. 20, 2001) lack of employment authorization, or
period expires to constitute a bridge (Cook Memo Nov. 2001). the inability to meet a similar technical
requirement. See final 8 CFR requirements not specifically identified ii. Unlicensed Employment Under
214.2(h)(4)(v)(C)(2)(ii). in the proposed rule that similarly Supervision
Petitions for such unlicensed H1B prevent a beneficiary from obtaining a Comment. Several commenters were
beneficiaries may be approved for up to license. DHS is therefore providing concerned about petitioners being
1 year. See final 8 CFR additional flexibility in the final rule by required to provide evidence as to the
214.2(h)(4)(v)(C)(2). Thereafter, an H1B allowing beneficiaries to demonstrate identity, physical location, and
petition filed on such a beneficiarys that a similar technical requirement credentials of the individual(s) who will
behalf may not be approved unless the bars the issuance of a license to an supervise the alien. See 8 CFR
required license has been obtained, the individual who is not yet in H1B 214.2(h)(4)(v)(C)(1). One commenter
beneficiary is employed in a different status. In such situations, the petitioner indicated that the quoted text could be
position that requires another type of must still demonstrate that the interpreted in different ways. According
license, or the beneficiary is employed beneficiary is otherwise qualified to to the commenter, although the text may
in the same occupation but in a different have been intended to require
receive the state or local license,
location that does not require a license. petitioners to provide broad details
meaning that all educational, training,
See final 8 CFR 214.2(h)(4)(v)(C)(3). about the supervisor(s) who will oversee
experience, and other substantive
2. Public Comments and Responses requirements have been met. The the work of the nonimmigrant worker,
petitioner must also still demonstrate adjudicators may interpret this
i. Duties Without LicensureExpand
that the beneficiary has applied for such provision as requiring petitioners to
Circumstances
license in accordance with state or local provide the actual identities and
Comment. Most of the commenters qualifications of those supervisors. The
rules and procedures, unless such rules
who addressed the proposed changes commenter believed such an
and procedures prohibit the beneficiary
supported DHSs proposals and thanked interpretation would pose a major
from applying for the license without
DHS for clarifying exceptions to the logistical challenge for many
general requirement making approval of first meeting the technical requirement.
petitioners. As an example, the
H1B petitions contingent on licensure Comment. One commenter requested commenter referred to medical residents
when licensure is required for the the same accommodation (i.e., a 1-year who often rotate through numerous
relevant occupation. Two commenters approval) for physicians who complete assignments and different supervisors,
asked DHS to include additional bases their graduate medical education in H sometimes on a monthly basis, during
for excusing the general licensure 1B nonimmigrant status using a limited their training. The commenter believed
requirement, such as by adding the or restricted license but who require an that in such cases it would be overly
phrase or other requirement to 8 CFR unrestricted license to begin post- burdensome for petitioners to provide
214.2(h)(4)(v)(C)(2)(ii). training work in H1B status. This the actual identities of the supervisors,
Response. DHS regulations provide commenter noted that these physicians and the commenter urged DHS to
that if an occupation, including a health sometimes face circumstances in which eliminate this requirement. Some
care occupation, requires a state or local they have not yet completed their post- commenters recommended that DHS
license to fully perform the duties of the graduate training (i.e., medical strike the provision requiring petitioners
occupation, the H1B beneficiary must residency), which is a prerequisite to to provide specific information about
have the license prior to the approval of obtaining an unrestricted state license in supervisors and replace it with a
the petition. See 8 CFR 214.2(h)(4)(v). provision requiring petitioners to proffer
many states, but must have an H1B
However, some states will not issue a evidence from the appropriate licensing
petition filed on their behalf to avoid a
foreign national a state license without authority supporting the employment.
evidence of an approved H1B petition lapse in status. This commenter Additionally, commenters were
or other employment authorization. requested that USCIS consider the concerned that the proposed rule gave
DHS has long acknowledged these completion of the requisite post- USCIS too much authority to second-
beneficiaries sometimes face situations graduate training as another technical guess established practices followed by
where the beneficiary is qualified for impediment to obtaining a license. state licensing authorities. One
licensure but may not obtain the Response. DHS declines to adopt the commenter was of the view that if the
licensure because of a technical commenters suggestion. As with other relevant state licensing authority deems
requirement, and the Department occupations, DHS will require the proposed supervision to be
responded over 8 years ago by allowing physicians who complete their graduate adequate, USCIS should not evaluate
for the temporary approval of H1B medical education in H1B status using the level at which duties are performed
petitions in such cases, provided all a restricted license to demonstrate that or the degree of supervision received.
other requirements are met.65 By the only obstacle to the issuance of an Another commenter stated that refining
incorporating this policy into the final unrestricted license is the lack of a the regulatory text would help to avoid
regulations, DHS intends to provide Social Security number, a lack of denials of H1B petitions filed for
clear guidance to help certain employment authorization, or the unlicensed workers whose supervision
beneficiaries who cannot obtain the is deemed adequate by the state but
inability to meet a similar technical
necessary license because they are determined to be inadequate by USCIS.
requirement that precludes the issuance Response. In this final rule, DHS is
unable to satisfy a technical
of the license. DHS does not view the clarifying that, consistent with current
prerequisite, including because they do
not yet possess a Social Security absence of completed post-graduate policy, the petitioner is required to
number or are not yet legally authorized training as analogous to the purely provide details about the supervisor(s)
to work in the United States. technical prerequisites discussed above. overseeing the work of the
In addition, DHS agrees with The Department did not propose to nonimmigrant worker, including
commenters and recognizes that there excuse substantive prerequisites for physical location, credentials and
may be other analogous technical obtaining licensure and disagrees that identity of such supervisor(s).
exceptions should extend to such Petitioners are encouraged to fully
65 See Neufeld Memo March 2008. prerequisites. document each case, as this helps DHS
ensure that while the beneficiary may as licensure due to technical requirements. the individual is fully qualified for the
yet be unlicensed, he or she will be Petitioners wishing to extend H1B state license, but is unable to acquire the
supervised by one or more individuals status for such beneficiaries beyond one license due to a technical, non-
with the proper license. Finally, as the year are required to file new petitions substantive reason. While a health care
burden of proof is on the petitioner to with requests for extensions and worker certification may help prove
establish eligibility for the benefit evidence that the necessary licensure such qualification, such certificates,
requested, the petitioner must also has in fact been obtained.68 While DHS which are issued by private
submit evidence that it is complying recognizes that short approval periods organizations, do not confer
with state requirements. DHS is impose a burden on employers, DHS authorization to engage in the specialty
modifying the regulatory text at 8 CFR must balance employer burden against occupation and are not sufficient
214.2(h)(4)(v)(C)(1) to clarify the the need to affirmatively confirm that evidence of a beneficiarys
petitioners burden of proof with respect the beneficiary ultimately received the qualifications for the specialty
to compliance with state requirements. requisite licensing. Extending the period occupation. Accordingly, such health
As the final rule simply codifies current of H1B petition validity beyond 1 year care certificates are not acceptable
policy, DHS does not anticipate that in cases in which the beneficiary does substitutes for evidence establishing
petitioners would have to change the not have a license needlessly weakens that the foreign national is licensed to
way they currently satisfy these DHSs oversight of beneficiaries practice his or her occupation. For these
requirements.66 eligibility for H1B status. reasons, DHS declines to make changes
DHS also declines to implement the to those requirements in the final rule.
iii. Duration of H1B Petition Approval commenters proposal to approve
Comment. A few commenters petitions for beneficiaries lacking iv. Unrestricted Extendable Licenses
suggested a longer duration of approval necessary licensure for the period Comment. One commenter stated that
for H1B petitions involving unlicensed requested on the petition and then issue the proposed rule did not reference the
H1B beneficiaries, noting that limiting an RFE to request proof of licensure 1 most recent USCIS guidance regarding
the duration of H1B nonimmigrant year after approval. Such a proposal unrestricted extendable licenses in
status to 1 year seemed both arbitrary would be operationally and health care occupations. The commenter
and unnecessary. The commenters administratively burdensome, both cited a May 20, 2009 USCIS
urged DHS to allow petitions to be because it would require USCIS to track memorandum from Barbara Q. Velarde
approved for the full H1B period petitions and because it would require titled, Requirements for H1B
requestedup to 3 yearsregardless of USCIS to incur the costs of re- Beneficiaries Seeking to Practice in a
whether the occupational license is determining eligibility without Health Care Occupation (2009
subject to renewal before the requested collecting an appropriate fee. The Velarde Memorandum), that states, in
petition expiration date. Alternatively, proposal could add also uncertainty for part, that H1B approvals in such
another commenter suggested an option petitioners and H1B nonimmigrant instances should be for the full duration
whereby USCIS would approve H1B workers while their petitions are under of time requested on the petition (i.e.,
status for the period requested on the re-review. For these reasons, DHS up to 3 years) notwithstanding the
petition and then send a request for retains in the final rule the current 1- renewal date on the license, if the
proof of licensure 1 year after approval year limitation on the duration of petition is otherwise approvable. The
(rather than require a new petition). approval of H1B petitions filed on commenter asked that the applicability
According to the commenter, if proof is behalf of unlicensed workers under 8 of the policy be expanded to include
not provided at that point, the grant of CFR 214.2(h)(4)(v)(C)(2). additional occupations beyond those in
H1B status could be revoked. One DHS also declines to adopt the health care, and proposed that 8 CFR
commenter proposed that DHS extend commenters request to provide an 214.2(h)(4)(v)(A) be amended
the 1-year exception to any foreign exception to the 1-year limit for a accordingly.
beneficiary who presents a health care foreign beneficiary who submits a Response. DHS did not propose to
worker certificate 67 at the time of the health care worker certificate with the codify or change USCIS policy
filing of the H1B petition. The H1B petition. State laws govern addressing the approval of petitions for
commenter noted that this proposal licensure requirements for individuals individuals in health care occupations
would relieve the need for DHS to parse to fully practice their profession, and who are issued unrestricted extendable
through a myriad of state licensing DHS regulations accordingly require the
licenses, as articulated in the 2009
prerequisites, while still guaranteeing petitioner to submit a copy of the
Velarde Memorandum, and therefore
that only qualified workers are granted beneficiarys license to establish that the
declines to address this comment in this
H1B status. The commenter noted that beneficiary is fully qualified to practice
rulemaking. USCIS will continue to
the proposal would provide additional in his or her specialty occupation. See
adjudicate these petitions consistent
certainty to petitioners and allow for 8 CFR 214.2(h)(4)(iii)(C)(3). The
with the policy guidance articulated in
more consistent DHS decision-making. licensure exception only applies where
Response. USCIS has long used a 1- the 2009 Velarde Memorandum, and the
year period as the duration for approval 68 The 1-year time period dates back to 2001,
agency declines to make any changes to
for beneficiaries that cannot obtain when the former INS issued guidance to this policy or the memorandum at this
adjudicators to approve H1B petitions for 1-year time.
66 See the Adjudicators Field Manual at Chapter
periods for teachers who could not obtain state
licensure unless they obtained Social Security J. Employers Exempt From H1B
31.3(d)(2). numbers, which in turn could not be obtained Numerical Limitations and Qualifying
67 A foreign national seeking admission to

unless they were already authorized to work in the
perform labor as a health care worker, other than United States. See Cook Memo Nov. 2001. See also
for Fee Exemptions
a physician, is only admissible to the United States USCIS Memorandum from Barbara Q. Velarde,
if he or she presents a certification from a USCIS- Requirements for H1B Beneficiaries Seeking to
1. Description of the Final Rule and
approved credentialing organization verifying that Practice in a Health Care Occupation (May 20, Changes From the NPRM
the worker has met the minimum requirements for 2009), available at https://www.uscis.gov/sites/
education, training, licensure, and English default/files/USCIS/Laws/Memoranda/Static_Files_
In this final rule, DHS codifies its
proficiency in his or her field. See INA section Memoranda/2009/health_care_occupations_ longstanding policy interpretations
212(a)(5), 8 U.S.C. 1182(a)(5); 8 CFR 212.15. 20may09.pdf. identifying which employers are exempt
from the H1B numerical limitations cap-exemption and ACWIA fee- government entities, notably
(i.e., which employers are cap- exemption purposes. This change Department of Veterans Affairs (VA)
exempt) and makes conforming results in a standard that better reflects hospitals, from these exemptions. The
changes to the provisions that establish current operational realities for commenter suggested revising the text
which employers are exempt under institutions of higher education and of the proposed regulation at 8 CFR
ACWIA from paying certain H1B fees. how they interact with, and sometimes 214.2(h)(8)(ii)(F)(2) and (h)(19)(iii)(B) to
DHS also modifies those policies in rely on, nonprofit entities. specifically include governmental
response to public comment as they Second, the final rule revises the entities related to or affiliated with
relate to (1) nonprofit entities related to definition of governmental research institutions of higher education in the
or affiliated with institutions of higher organization, in response to public provisions providing for exemption
education, and (2) governmental comment, so that the phrase includes from the H1B numerical limitations
research organizations. DHS is making state and local government research and ACWIA fees.
revisions to the H1B cap- and fee- entities in addition to federal Response. DHS thanks the commenter
exemption provisions where needed to government research entities. See 8 CFR for the suggestion. In enacting sections
reflect these modifications. 214.2(h)(8)(ii)(F)(3) and (h)(19)(iii)(C). 214(c)(9) and 214(g)(5) of the INA,
In the final rule, DHS is improving Both the ACWIA fee and H1B cap Congress specifically identified the
upon and codifying current policy statutes provide exemptions for types of entities that are eligible for the
interpreting the statutory cap and fee governmental research organizations, cap and fee exemptions. DHS will not
exemptions for a nonprofit entity that is without specifying whether such introduce additional entity types by
related to or affiliated with an organizations must be federal regulation, but the agency will continue
institution of higher education. See INA government entities. See INA to consider exemption requests from
214(c)(9) and (g)(5), 8 U.S.C. 1184(c)(9) 214(c)(9)(A) and (g)(5)(B), 8 U.S.C. government entities that are also
and (g)(5); see also final 8 CFR 1184(c)(9)(A) and (g)(5)(B). DHS organized as nonprofit entities. DHS
214.2(h)(8)(ii)(F)(2)(iv) and believes it is reasonable to interpret this notes that it did not propose a change
(h)(19)(iii)(B). Under current policy, language to include state and local to the definition of a nonprofit
DHS allows nonprofit entities to qualify government entities and that doing so is organization in 8 CFR 214.2(h)(19)(iv)
for the cap and fee exemptions if such consistent with the goals of this for purposes of the cap or fee
nonprofit entities are (1) connected or rulemaking to improve access to and exemptions. Consistent with the current
associated with an institution of higher retention of high-skilled workers in the practice, DHS will assess on a case-by-
education through shared ownership or United States. DHS further believes that case basis whether a governmental
control by the same board or federation; this interpretation will promote and organization has established that it is a
(2) operated by an institution of higher encourage the significant and important nonprofit entity related to or affiliated
education; or (3) attached to an research and development endeavors with an institution of higher education
institution of higher education as a happening through state and local for purpose of the ACWIA fee and H
member, branch, cooperative, or governments. 1B numerical limitations.
subsidiary. In addition to proposing to Third, the final rule codifies other
retain this policy (see proposed 8 CFR existing policies and practices in this ii. Clarify That a Nonprofit Entity Only
214.2(h)(8)(ii)(F)(2); 8 CFR area. Specifically, the final rule codifies: Needs To Meet One of the Criteria in 8
214.2(h)(19)(iii)(B)(4)), the NPRM (1) The requirements for exempting H CFR 214.2(h)(8)(ii)(F)(2) and 8 CFR
proposed to also allow nonprofit entities 1B nonimmigrant workers from the cap 214.2(h)(19)(iii)(B)
to qualify for the cap and fee in cases in which they are not directly
exemptions on the basis of having a Comment. One commenter requested
employed by a cap-exempt employer that DHS clarify in the final rule that a
written affiliation agreement with an (final 8 CFR 214.2(h)(8)(ii)(F)(4)); (2) the
institution of higher education. As nonprofit entity, in order to qualify for
application of cap limitations to H1B exemption from the H1B numerical
proposed, the regulatory text would nonimmigrant workers in cases in
have allowed such an agreement to limitation, need only meet one of the
which cap-exempt employment ceases criteria set forth in 8 CFR
serve as the basis for the cap and fee
(final 8 CFR 214.2(h)(8)(ii)(F)(5)); and 214.2(h)(8)(ii)(F)(2). The commenter
exemptions if the agreement established
(3) the procedures for concurrent cap- recommended specific edits to the
an active working relationship between
exempt and cap-subject employment regulatory text to clarify this point and
the nonprofit entity and the institution
(final 8 CFR 214.2(h)(8)(ii)(F)(6)). As to avoid potential confusion over the
of higher education for the purposes of
discussed below, DHS did not make any disjunctive nature of the criteria in the
research or education and so long as one
changes to these provisions in response definition. The commenter also
of the nonprofit entitys primary
to public comment. requested that DHS make corresponding
purposes was to directly contribute to
the research or education mission of the 2. Public Comments and Responses revisions to the fee-exemption provision
institution of higher education. at proposed 8 CFR 214.2(h)(19)(iii)(B).
i. Include Government Entities in the Response. DHS believes that the
In the final rule, DHS is replacing the
Definition of Related or Affiliated regulatory text at proposed 8 CFR
phrase primary purpose with
fundamental activity to avoid Comment. One commenter stated that 214.2(h)(8)(ii)(F)(2) clearly provides that
potential confusion. This change makes DHSs failure to specifically reference a nonprofit entity may qualify as
it clearer that nonprofit entities may government entities as a type of entity related to or affiliated with an
qualify for the cap and fee exemptions that could have a qualifying relationship institution of higher education if it
even if they are engaged in more than or affiliation with an institution of meets any one of the listed criteria.
one fundamental activity, any one of higher education meant that government However, in response to the comment,
which may directly contribute to the entities would be unable to request DHS is revising the final rule by adding
research or education mission of a exemptions from the H1B numerical the phrase if it satisfies any one of the
qualifying college or university. Further, limitations and ACWIA fees. The following conditions to the proposed
the term related or affiliated nonprofit commenter argued that by only referring text. DHS is also making conforming
entity is defined consistently for both to nonprofit entities, the rule excluded changes to 8 CFR 214.2(h)(19)(iii)(B).
iii. The Primary Purpose Requirement such that any entity could qualify 214.2(h)(19)(iii)(B)(4), so the cap and fee
for Nonprofit Entities Seeking merely by entering into any kind of exemption provisions remain identical.
Exemptions Based on Formal Written affiliation agreement with a qualifying These commenters also suggested that
Affiliation Agreements institution of higher education, DHS DHS include deference to other agency
Comment. As noted above, the NPRM believes that Congress did not intend determinations of affiliation as an
would have allowed nonprofit entities such a broad exemption from the cap alternative to requiring a formal written
to qualify for cap and fee exemptions and fee provisions. With respect to affiliation agreement.
based on formal written affiliation institutions of higher education,
Response. DHS appreciates the
agreements with institutions of higher Congress intended to exempt those
foreign national workers who would concerns expressed by the commenters
education so long as such agreements but believes that it is reasonable to
establish an active working relationship directly contribute to the research or
education missions of those institutions; require nonprofit entities to submit
with the institution of higher education formal written affiliation agreements
there is no evidence that Congress
for the purposes of research or with institutions of higher education as
intended to allow exemptions based on
education, and the nonprofit entity evidence that they are adequately
agreements unrelated to those
establishes that one of its primary affiliated with such institutions and
missions.69 Finally, DHS disagrees with
purposes is to directly contribute to the thus exempt from the cap and fee
the suggestion that the proposed
educational or research mission of the exemptions. DHS believes that
definition is beyond DHSs statutory
institution of higher education. See submission of such affiliation
authority. Congress chose not to define
proposed 8 CFR 214.2(h)(8)(ii)(F)(2)(iv) agreements is important to ensure that
the term related or affiliated, thus
and 8 CFR 214.2(h)(19)(iii)(B)(4). This the nonprofit entities will directly
delegating the authority and
proposed path to eligibility for the cap further the educational or research
responsibility to interpret that term to
and fee exemptions, which is not missions of the affiliated institutions of
DHS. In this rule, DHS acts within its
available under current policy, was higher education.71 A petitioner may
statutory authority by codifying a
intended to expand eligibility to wish to submit, or DHS may require the
definition that is consistent with the
nonprofit entities that maintain
statutory intent to provide exemptions submission of, additional evidence to
common, bona fide affiliations with
for certain nonprofit entities that corroborate the nature of the affiliation
institutions of higher education.
directly contribute to the higher and the nonprofit entitys activities.
Commenters were of the view that the
education of Americans.70 Based on the comments received,
term a primary purpose would make
the provision overly restrictive and iv. Formal Written Affiliation DHS is removing the phrase absent a
inconsistent with both the INA and the Agreement demonstration of shared ownership or
purpose of the proposed rule. Some Comment. Similarly, several control from 8 CFR 214.2(h)(8)(F)(2)(iv)
commenters suggested eliminating any commenters objected to the requirement and 8 CFR 214.2(h)(19)(iii)(B)(4) to
reference to the purpose of the in proposed 8 CFR clarify that a nonprofit entity need not
nonprofit, while one commenter 214.2(h)(8)(ii)(F)(2)(iv) and 8 CFR prove the absence of shared ownership
suggested simply deleting the word 214.2(h)(19)(iii)(B)(4) that the qualifying or control when relying on the existence
primary while maintaining reference affiliation agreement be formal and in of a formal affiliation agreement to
to the purpose of the nonprofit entity. writing. These commenters proposed establish that the entity is related to or
Another commenter claimed that the deleting this requirement and simply affiliated with an institution of higher
proposed regulatory definition was revising the rule to only require that the education. As proposed, the language
beyond DHSs statutory authority. nonprofit entity have an affiliation was intended merely to signify that an
Response. In response to public with an institution of higher education affiliation agreement was one option for
comment, DHS is revising 8 CFR in order to qualify for the cap and fee establishing that the requisite affiliation
214.2(h)(8)(ii)(F)(2)(iv) and exemptions. or relationship exists between the
(h)(19)(iii)(B)(4) to clarify the definition. In addition, these commenters offered entities; DHS did not intend the phrase
Specifically, instead of referring to a suggested edits to the regulatory text to to require evidence of the absence of
primary purpose of the nonprofit ensure that a nonprofit entity that ownership or control.
entity, the final rule will require the submits a formal written affiliation DHS is not adopting the commenters
nonprofit entity to show that a agreement is also not required to recommendation to allow for deference
fundamental activity of the nonprofit affirmatively prove that the entity is not to another agencys determination that a
entity is to directly contribute to the owned or controlled by the institution nonprofit entity is related to or affiliated
research or education mission of the of higher education. These commenters with an institution of higher education.
institution of higher education requested that proposed 8 CFR Such determinations, including those
(emphasis added). DHS emphasizes that 214.2(h)(8)(ii)(F)(2)(iv) be revised to
a nonprofit entity may meet this made by state or local agencies, could be
remove the phrase absent shared based on a different substantive
definition even if it is engaged in more ownership and control to describe the
than one fundamental activity, so long standard than the INA requires and
nonprofit entitys affiliation with an could result in inconsistent treatment of
as at least one of those fundamental institution of higher education. Some of
activities is to directly contribute to the similar relationships and affiliations.
these commenters also asked DHS to Therefore, in the final rule, DHS adopts
research or education mission of a make conforming edits to 8 CFR
qualifying college or university. This a standard that it will apply consistently
modified definition should capture 69 See S. Rep. No. 106260 (Apr. 11, 2000)
across all H1B petitions claiming cap
those nonprofit entities that have bona (providing that individuals should be considered
and fee exemptions.
fide affiliations with institutions of cap exempt because by virtue of what they are
doing, people working in universities are 71 See Aytes Memo June 2006, at 3 (citing S. Rep.
higher education and is consistent with necessarily immediately contributing to educating No. 106260, which stated that individuals should
the intent underlying the statute. Americans and not simply referencing the identity be considered cap exempt by virtue of what they
While some commenters suggested of the petitioning employer). are doing and not simply by reference to the
deleting the requirement altogether, 70 Id. identity of the petitioning employer).
v. Impose Additional Requirements To believes the regulatory text in this final definition for purposes of the cap
Qualify as an Institution of Higher rule appropriately reflects this intent. exemption).
Education Comment. A commenter expressed
vii. Expand Interpretation of Research the view that proposed 8 CFR
Comment. One commenter suggested Organization 214.2(h)(19)(iii)(C), as adopted for
DHS limit the cap exemption for Comment. Several commenters stated purposes of the AC21 H1B cap
educational institutions to those that the current definition of the terms exemption at 8 CFR 214.2(h)(8)(ii)(F)(3),
institutions that are accredited by an nonprofit research organization and would incorrectly limit governmental
accrediting agency recognized by the governmental research organization research organizations to federal
Department of Education and that meet in the ACWIA fee-exemption regulation government research organizations. The
federal and state standards for quality at 8 CFR 214.2(h)(19)(iii)(C), which the commenter stated that DOL reviewed
educational institutions. proposed rule adopted for purposes of the same issue when it published its
Response. DHS is not adopting the the AC21 H1B cap exemption at 8 CFR final ACWIA prevailing wage rules and
commenters suggestion because the 214.2(h)(8)(ii)(F)(3), is inappropriately concluded that the words
term institution of higher education is limited. These commenters questioned Governmental (capitalized) and
specifically defined in the INA by the basis for the requirement that governmental (lower case) convey
reference to 20 U.S.C. 1001(a). See INA qualifying nonprofit research and different meanings, the former referring
214(g)(5)(A), 8 U.S.C. 1184(g)(5)(A). The governmental research organizations be only to federal governmental entities
definition in 20 U.S.C. 1001(a) includes primarily engaged in or promoting and the latter referring to federal, state,
specific reference to accreditation and research. The commenters therefore and local governmental entities. The
other standards. As such, DHS will not recommended deleting the words commenters therefore recommended
impose additional requirements or primarily and primary in 8 CFR deleting references in 8 CFR
modify the definition of the term 214.2(h)(19)(iii)(C). 214.2(h)(19)(iii)(C) to the United States
institution of higher education in this Response. DHS does not agree with Government.
final rule. the commenters suggestions to remove Response. DHS agrees with the
the requirement that research suggestion that the term governmental
vi. Impose Additional Requirements on organizations be either (1) nonprofit should be interpreted to include state
the Nature of Employment at a entities primarily engaged in basic or and local governmental research
Qualifying Nonprofit Entity and applied research or (2) governmental organizations in addition to U.S. (i.e.,
Nonprofit Research Organization entities whose primary mission is the federal) governmental research
performance or promotion of basic or organizations. Whether governmental
applied research. These limitations have research organizations should include
that DHS limit the availability of cap
been in place since 1998 with regard to state and local government research
and fee exemptions, for nonprofit fee exemptions 72 and have been in
entities and nonprofit research entities was a straightforward
effect for more than a decade for determination when ACWIA was first
organizations, only to those entities and purposes of the cap exemptions.73 The
organizations that can document that enacted in 1998. In its original form, the
primarily and primary ACWIA statute provided a fee
the employment of H1B nonimmigrant requirements were not the subject of any
workers is for the purpose of educating exemption to employers described in
comments when the ACWIA fee INA section 212(p)(1), 8 U.S.C.
Americans to work in specialty regulation was promulgated,74 and the
occupation fields. To accomplish this 1182(p)(1), which in turn referenced
commenters who raised concerns with Governmental (capitalized) research
change, the commenter recommended these limitations in this rulemaking
that DHS revise the definition of the organizations. See ACWIA sections
provided no legal or policy justification 414(a), 415(a). Thereafter, DOL and the
terms nonprofit entity and nonprofit for eliminating those requirements. DHS
research organization at proposed 8 legacy Immigration and Naturalization
believes that maintaining these Service (INS) promulgated prevailing
CFR 214.2(h)(8)(ii)(F)(3). Specifically, longstanding interpretations, which
the commenter recommended wage and ACWIA fee-exemption
include the primarily and primary regulations, respectively.75 In these
incorporating into the definition the requirements, will serve to protect the
condition that the entity or organization rulemakings, DOL and INS specifically
integrity of the cap and fee exemptions discussed suggestions from commenters
is primarily employing cap-exempt H as well as clarify for stakeholders and
1B nonimmigrant workers to educate that the term Governmental research
adjudicators what must be proven to
Americans so that they may organization should include state and
successfully receive such exemptions.
immediately qualify for employment in local governmental organizations. DOL
The requirements thus will be retained
a specialty occupation upon graduation. concluded that because the G in the
for purposes of the ACWIA fee
word Governmental was capitalized,
Response. DHS declines to adopt the exemption under final 8 CFR
the provision was limited to U.S.
commenters suggestion. DHS does not 214.2(h)(19)(iii)(C), and also will
(federal) governmental research
believe it would be consistent with continue to apply to the cap exemption.
organizations.76 For its part, INS
congressional intent to impose such a See final 8 CFR 214.2(h)(8)(ii)(F)(3)
explained that it did not exempt state
highly limiting restriction on the (adopting the ACWIA fee exemption
and local governmental organizations
otherwise broad array of nonprofit
from the fee because Congress did not
entities and nonprofit research 72 See Petitioning Requirements for the H1B
Nonimmigrant Classification Under Public Law specifically reference them.77

organizations that may be eligible for a
105277, 63 FR 65657 (Nov. 30, 1998) (interim rule) In evaluating the commenters
cap exemption under INA 214(g)(5). As (promulgating the ACWIA fee regulation at 8 CFR analysis supporting its request that the
previously discussed, legislative history 214.2(h)(19)(iii)(C)). This rule was finalized with
unrelated amendments in 2000. See Petitioning
phrase governmental research
indicates that Congress intended to
Requirements for the H1B Nonimmigrant
include those entities and organizations Classification Under Public Law 105277, 65 FR 75 65 FR 80109 (Dec. 20, 2000) (DOL rule); 65 FR
that are directly contributing to the 10678 (Feb. 29, 2000). 10678 (Feb. 29, 2000) (INS rule).
education and research missions of 73 See Aytes Memo June 2006, at 45. 76 See 65 FR 80109, 80183.
institutions of higher education. DHS 74 See 65 FR 10678. 77 See 65 FR 10678, 10680.
organization no longer be limited to viii. Requirement That the H1B Worker entities are not undercut by
federal governmental organizations in Perform a Majority of Duties at the employment that is peripheral to those
this final rule, DHS takes into account Cap Exempt Entity contributions. DHS is not adopting the
Congresss actions following enactment Comment. One commenter objected to changes suggested by the commenters as
of ACWIA and the current ambiguous extending the cap exemption to these provisions in the final rule simply
statutory language. In 2000, two years individuals who are employed at a codify policy and practice designed to
after ACWIA was signed into law, qualifying institution, organization or protect the integrity of the cap
Congress enacted the cap exemption entity rather than limiting the cap exemption. See final 8 CFR
provision in AC21, which exempted exemption to those employed by such 214.2(h)(8)(ii)(F)(4).
governmental research organizations an institution, organization or entity.
(lowercase) from the H1B cap. See ix. Codify Existing USCIS Deference
Other commenters supported the Policy
AC21 103. Congress also passed extension of the cap exemption but
legislation that amended the ACWIA fee objected to the majority of work time Comment. Some commenters stated
statute by removing the cross-reference requirement, which was proposed as a that the final rule should codify the
to section 212(p) (which used the condition for the cap exemption when current deference policy from the 2011
capitalized Governmental) from the an H1B beneficiary is not a direct Interim Policy Memo under which
section 214(c)(9) text and replacing it employee of a qualifying institution, USCIS generally defers to a prior agency
with language indicating that certain organization or entity. These
governmental (lowercase) research determination that a nonprofit entity is
commenters contested the proposed exempt from the H1B numerical
entities are exempt. See Public Law rules requirements that an H1B
106311, section 1. Legacy INS and later limitations based on its relation to or
beneficiary who is not directly affiliation with an institution of higher
USCIS have not since revised the employed by a qualifying institution,
regulation limiting the fee exemption to education.81 These commenters stated
organization or entity can only be that the lack of a deference regulation
federal governmental research eligible for a cap exemption if such
organizations. has led to uncertainty and
beneficiary will spend a majority of his unpredictability for employers and
DHS believes that these intervening or her work time performing job duties
statutory changes support the prospective H1B nonimmigrant
at a qualifying institution, organization
commenters requested change. In workers because adjudicators reviewing
or entity and if those job duties directly
addition, the commenters requested the same facts can reach opposite
and predominately further the essential
change would ensure that the DHS and conclusions.
purpose, mission, objectives or
DOL interpretations remain consistent functions of the qualifying institution, Response. DHS is not adopting this
in this context and reflect a recognition organization or entity. See proposed 8 suggestion. The deference policy was
that the federal government does not CFR 214.2(h)(8)(ii)(F)(4). These expressly instituted as interim guidance
have a monopoly on consequential commenters requested that DHS to promote consistency in adjudications
government-led research and eliminate the proposed requirement that while USCIS reviewed its overall policy
development efforts.78 Accordingly, such an H1B beneficiary show that the on H1B cap exemptions for nonprofit
DHS is accepting the commenters majority of his or her work time will be entities that are related to or affiliated
suggestion to define governmental spent performing job duties at a with an institution of higher education.
research organizations to include state qualifying institution, organization or This final rule represents the
and local government research entity. These commenters also objected culmination of USCISs review of past
organizations for purposes of the cap to the requirement that the H1B policy and public input on this issue. In
exemption and fee exemption. DHS is petitioner establish that there is a nexus this final rule, DHS specifies the means
therefore adopting a definition of between the duties to be performed by by which a nonprofit entity may
governmental research organization the H1B beneficiary and the essential establish that it is related to or affiliated
for both cap and fee exemptions that purpose, mission, objectives or with an institution of higher education.
covers federal, state, and local functions of the qualifying institution, The final rule better reflects current
governmental research organizations.79 organization or entity. operational realities for institutions of
See final 8 CFR 214.2(h)(19)(iii)(C). Response. DHS believes that its policy higher education and how they interact
extending the cap exemption to with, and sometimes rely on, nonprofit
78 See National Science Foundation, Survey of
individuals employed at and not entities, and account for the nature and
State Government Research and Development: FYs simply employed by a qualifying
2012 and 2013 (June 2015), available at https://
scope of common, bona fide affiliations
www.nsf.gov/statistics/2015/nsf15323/pdf/nsf institution, organization or entity is between nonprofit entities and
15323.pdf. consistent with the language of the institutions of higher education. Rather
79 As noted, it has long been USCIS policy to statute and furthers the goals of AC21 to than continuing to provide deference to
apply the same definition of governmental improve economic growth and job past determinations of cap exemption
research organization for both cap and fee creation by immediately increasing U.S.
exemptions. See Aytes Memo June 2006, at 45. In under the 2011 Interim Policy Memo,
the NPRM for this rulemaking, DHS made clear its access to high-skilled workers, and the final rule includes the final
intent to continue aligning definitions for both particularly at these institutions, evidentiary criteria that USCIS will now
exemptions by explicitly linking the AC21 cap organizations, and entities.80 DHS, use to determine whether individuals
exemption to the ACWIA fee-exemption definitions. moreover, believes that the majority of
See 80 FR at 81910 (explaining that DHS is employed at a nonprofit entity will be
adopting the ACWIA fee definition of work time requirement is a reasonable exempt from H1B numerical
governmental research organization for purposes means to ensure that Congress aims in limitations, and, as such, supersedes
of the cap exemption); see also id. at 81919 exempting workers from the H1B cap past guidance in this area.
(explaining that DHS also proposes to conform its based on their contributions at
regulations to current policy with respect to the
definitions of several terms in section 214(g)(5) and
qualifying institutions, organizations or 81 See USCIS Interim Policy Memorandum,
the applicability of these terms to both: (1) ACWIA Additional Guidance to the Field on Giving
provisions that require the payment of fees by numerical caps). Multiple commenters supported Deference to Prior Determinations of H1B Cap
certain H1B employers; and (2) AC21 provisions this approach. Exemption Based on Affiliation (Apr. 28, 2011)
that exempt certain employers from the H1B 80 See S. Rep. No. 260, at 10. (2011 Interim Policy Memo).
x. Create a Mechanism To Obtain a Pre- the H1B nonimmigrant worker will be practice to allow a cap-exempt H1B
Determination of Cap Exemption subject to the cap once employment nonimmigrant worker, who is cap-
Comment. One commenter suggested with a cap-exempt entity ceases. See exempt based on continued
that DHS create a mechanism for an H INA 214(g)(6), 8 U.S.C. 1184(g)(6). employment at an institution,
In the scenario contemplated by the organization or entity under INA
1B petitioner to obtain a pre-
commenter, the basis for the H1B 214(g)(5)(A) and (B), to be concurrently
determination of whether it qualifies for
nonimmigrant workers employment employed by a cap-subject employer.
an exemption from the H1B numerical
with an employer that normally would Consistent with INA 214(g)(6), if the H
limitations. be cap-subject is an exemption from the
Response. DHS appreciates the 1B nonimmigrant worker ceases his
otherwise controlling H1B numerical or her cap-exempt employment, the H
commenters suggestion and is in the limits based on concurrent employment
process of evaluating how to address the 1B nonimmigrant worker would become
at a cap-exempt institution, entity or subject to the numerical cap, unless
administration of these cap and fee organization as described in section
exemption provisions procedurally. otherwise exempt.
214(g)(5)(A) and (B) of the INA, 8 U.S.C.
xi. Allot H1B Visas Subject to the Cap 1184(g)(5)(A) and (B). If the concurrent K. Exemptions to the Maximum
on a Quarterly Basis cap-exempt employment ceases before Admission Period of H1B
the end of the petition validity period of Nonimmigrants
the cap-subject employment, and the H 1. Description of the Final Rule and
that DHS allot H1B visas subject to the 1B nonimmigrant worker is not
H1B numerical limitations on a Changes From the NPRM
otherwise exempt from the numerical
quarterly basis. In this final rule, DHS is consolidating
limitations, USCIS may revoke the
Response. DHS is unable to address approval of the cap-subject concurrent and codifying longstanding DHS policy
this suggestion as it is outside the scope employment petition. Because the implementing sections of AC21 related
of this rulemaking. concurrent employment at a cap-subject to the method for calculating time
employer is considered cap-exempt counted toward the maximum period of
xii. Request for Continuation of Cap-
solely because the H1B nonimmigrant H1B admission, as well as determining
Subject Employment When Concurrent
workers concurrent cap-exempt exemptions from such limits.
Cap-Exempt H1B Employment Ends
employment is continuing, DHS Specifically, the final rule addresses: (1)
Comment. A few commenters believes it is reasonable to limit the cap- When an H1B nonimmigrant worker
suggested that when cap-exempt subject concurrent employment can recapture time spent physically
employment ceases, any concurrent H approval period to the approved outside of the United States (see final 8
1B employment with a cap-subject concurrent cap-exempt employment. CFR 214.2(h)(13)(iii)(C)); (2) whether the
employer should be authorized to Although concurrent employers may be beneficiary of an H1B petition should
continue until the end of the existing H on different hiring cycles, this does not be counted against the H1B numerical
1B validity period. One commenter change the fact that the concurrent cap- cap (see final 8 CFR
stated that tying the validity period of subject employment is contingent upon 214.2(h)(13)(iii)(C)(2)); (3) when an
an unrelated cap-exempt petition to the the continuation of the cap-exempt individual qualifies for an H1B
validity of a concurrent cap-subject employment. As such, DHS is not extension beyond the general 6-year
petition is overly burdensome, as there adopting the commenters suggestion to limit due to lengthy adjudications
is no requirement that employment for allow for approval validity periods of delays (see final 8 CFR
the cap-exempt petitioner and the cap- cap-subject concurrent employment to 214.2(h)(13)(iii)(D)); and (4) when an
subject petitioner be related, and they exceed the validity period of the individual qualifies for an H1B
may be on different hiring cycles. concurrent cap-exempt employment. extension beyond the general 6-year
Another commenter stated that cap- limit due to the per-country limitations
exempt H1B visa holders may have xiii. Prohibit Cap-Exempt H1B Worker on immigrant visas (see final 8 CFR
difficulty changing jobs as their only From Concurrent Employment 214.2(h)(13)(iii)(E)). Together, these
logical option is to move to another cap- Comment. One commenter stated that provisions in the final rule will enhance
exempt employer or, in the alternative, a cap-exempt H1B worker should be consistency among DHS adjudicators
to attempt to obtain a cap-subject H1B unable to obtain approval for concurrent and provide a primary repository of
visa, which has frequently required employment except under another cap- governing rules for the regulated
going through the H1B lottery in April exempt H1B petition. This commenter community.
of each year. disagreed with the codification in In response to public comment, DHS
Response. DHS appreciates the proposed 8 CFR 214.2(h)(8)(ii)(F)(5) of is also providing several clarifications in
challenges that cap-subject employers the existing policy allowing a cap- the final rule. First, DHS has amended
and H1B visa holders may face when exempt H1B nonimmigrant worker, the regulatory text at 8 CFR
previously approved cap-exempt based on continued employment at an 214.2(h)(13)(iii)(C) to more clearly
concurrent employment ceases, and that institution, organization or entity under provide that remaining H1B time may
transitioning from cap-exempt INA 214(g)(5)(A) and (B), to be be recaptured at any time before the
employment to cap-subject employment concurrently employed by a cap-subject foreign worker uses the full period of H
may be challenging. However, as soon employer. The commenter suggested 1B admission described in section
as an H1B nonimmigrant worker ceases revising the rule to prohibit concurrent 214(g)(4) of the INA. Second, DHS has
employment with a cap-exempt employment by a cap-exempt H1B made several edits to simplify and
employer, that worker becomes subject nonimmigrant worker unless the streamline the regulatory text at 8 CFR
to the H1B numerical limitations. concurrent employment is 214.2(h)(13)(iii)(D), which describes
Section 103 of AC21 specifically independently exempt from the H1B eligibility for the lengthy adjudication
provides that if an H1B nonimmigrant numerical limitations. delay exemption afforded by section
worker was not previously counted Response. DHS is not adopting this 106(a) and (b) of AC21 to the general 6-
against the cap, and if no other suggestion because it is inconsistent year maximum period of H1B
exemption from the cap applies, then with our longstanding policy and admission. In particular, the final rule
makes clear that to be eligible for this of limitations on recapture. Some of limits on this policy. See final 8 CFR
exemption, the individual must have these commenters noted that nothing in 214.2(h)(13)(iii)(C).
had an application for labor certification INA 214(g)(7) restricts USCIS from Comment. One commenter requested
or a Form I140 petition filed on his or granting unused H1B time when a that the regulation clarify and expand
her behalf at least 365 days before the recapture request is made more than 6 the types of evidence that may be
date the exemption would take effect. years after the initial grant of the H1B submitted to support the specific
See final 8 CFR 214.2(h)(13)(iii)(D)(1), petition. One commenter asked DHS to amount of time the H1B nonimmigrant
(5), and (7). The final rule further clarify that time spent inside the United worker seeks to recapture. The
clarifies that an individual becomes States in another nonimmigrant status is commenter suggested that USCIS
ineligible for the lengthy adjudication recapturable. This commenter stated consider, in addition to passport stamps
delay exemption if he or she fails to that the proposed regulatory text allows and travel tickets, other similar records
apply for adjustment of status or an recapture only for time in which the and evidence of an individuals
immigrant visa within 1 year of the date foreign national was physically outside presence in another country, such as
an immigrant visa is authorized for the United States. employer, school or medical records.
issuance. See final 8 CFR Response. In the final rule, DHS Response. DHS believes that the final
214.2(h)(13)(iii)(D)(10). The final rule clarifies that, consistent with its existing regulation is broad enough to allow for
also clarifies that exemptions pursuant policy, there is no time limitation on submission of the additional types of
to section 106(a) of AC21 may only be recapturing the remainder of the initial records proposed by the commenter,
made in 1-year increments. See final 8 6-year period of H1B admission under and that the language suggested by the
CFR 214.2(h)(13)(iii)(D)(2). INA 214(g)(4).83 DHS notes, however, commenter therefore is unnecessary.
Finally, DHS is making a correction to that the remainder of any time granted See final 8 CFR 214.2(h)(13)(iii)(C)(1).
8 CFR 214.2(h)(13)(iii)(E), which was pursuant to an AC21 extension cannot
intended to codify existing policy ii. AC21 106(a) and (b)Lengthy
be recaptured. The purpose of this Adjudication Delay Exemptions
regarding eligibility for H1B status clarification is to promote consistency
beyond the general 6-year maximum, and efficiency in recapture Comment. One commenter expressed
pursuant to section 104(c) of AC21, for determinations in accordance with the concern that the proposed provision
certain individuals who are policy objectives described in USCISs relating to lengthy adjudication delay
beneficiaries of Form I140 petitions but December 5, 2006 policy memorandum exemptions was under-inclusive. The
are affected by the per-country from Michael Aytes outlining the commenter interpreted the language to
limitations.82 In the proposed rule, DHS recapture policy.84 suggest that 1-year extensions of H1B
unintentionally departed from existing The relevant USCIS policy status pursuant to section 106(a) of
policy by requiring an individual memoranda,85 although not codified, AC21 would be available only if the
seeking an H1B extension under this specify that the remainder period of permanent labor certification
provision to show visa unavailability the initial 6-year admission period is application or Form I140 petition was
both at the time of filing and at the time that full admission period minus any filed 365 days or more prior to the 6-
of adjudication. In the final rule, time that the H1B nonimmigrant year limitation being reached. The
consistent with longstanding policy, worker previously spent in the United commenter stated that such a policy
DHS requires petitioners to only States in valid H1B or L1 status. This would be legally impermissible because
demonstrate immigrant visa policy thus allows time spent inside the under section 106(a) of AC21, and as
unavailability as of the date the H1B United States in any other reflected in current DHS policy
petition is filed with USCIS. See final 8 nonimmigrant status (i.e., any memoranda, these 1-year H1B
CFR 214.2(h)(13)(iii)(E). nonimmigrant status other than H1B or extensions are available to a beneficiary
L1) to be recapturable. This final of a permanent labor certification
rule does not impose any additional application or Form I140 petition filed
i. Recapture of H1B Time at least 365 days prior to the requested
Comment. A few commenters urged 83 USCIS Memorandum from Michael Aytes,
extension start date, even if that date is
DHS to clarify that there is no statute Guidance on Determining Periods of Admission less than 365 days before the 6-year
for Aliens Previously in H4 or L2 Status; Aliens limitation will be reached. The
82 Under longstanding agency policy, H1B Applying for Additional Periods of Admission commenter further noted that
extensions of stay may be granted pursuant to beyond the H1B Six Year Maximum; and Aliens individuals should be eligible for such
section 104(c) of AC21 regardless of whether the Who Have Not Exhausted the Six-Year Maximum
But Who Have Been Absent from the United States 1-year H1B extensions even if they are
beneficiary of the Form I140 petition will seek
immigrant status by means of adjustment of status for Over One Year., at 45 (Dec. 5, 2006) (Aytes in their 6th year of H1B status or even
or consular processing. See Neufeld May 2008 Dec. 2006 memo), available at https:// if they are not in H1B status at all.
Memo, at 6. Section 104(c) specifies that www.uscis.gov/sites/default/files/USCIS/Laws/ Response. DHS agrees with the
individuals become ineligible for extensions of stay Memoranda/Static_Files_Memoranda/periodsof
adm120506.pdf. commenter that AC21 and current DHS
after a decision is made on an application for
adjustment of status, and this final rule provides 84 Id. policy allow certain beneficiaries to
that eligibility likewise terminates when the 85 Aytes, Dec. 2006 memo; USCIS memorandum obtain H1B status for another year if
beneficiarys application for an immigrant visa is from Michael Aytes, Procedures for Calculating 365 days have passed since the filing of
approved or denied. See final 8 CFR Maximum Period of Stay Regarding the Limitations the permanent labor certification or
214.2(h)(13)(iii)(E)(2)(ii). If individuals who seek to on Admission for H1B and L1 Nonimmigrants
consular process are authorized for H1B (AFM Update AD 0521) (Oct. 21, 2005), available Form I140 petition, even if the
extensions of stay under section 104(c) despite at https://www.uscis.gov/sites/default/files/USCIS/ permanent labor certification
adjudication of their immigrant visa applications, Laws/Memoranda/Static_Files_Memoranda/ application or Form I140 petition was
they could remain eligible for the extension Archives%201998-2008/2005/recaptureh1bl11021 not filed 365 days or more prior to the
indefinitely, even if their immigrant visa 05.pdf (Because section 214(g)(4) of the Act states
applications or adjustment of status applications are that the period of authorized admission may not end of the 6-year limitation.86 Section
denied. These individuals could also strategically exceed 6 years, and because admission is defined
choose to seek an immigrant visa by means of as the lawful entry of the alien into the United 86 DHS does not require that an individual who
consular processing rather than by adjusting status States after inspection and authorization by an relies on one permanent labor certification
in order to benefit from indefinite extensions of H immigration officer only time spent in the United application or Form I140 petition for purposes of
1B status. States as an H1B counts towards the maximum.) Continued
106(a) of AC21 states that the extending the 1-year limit to a minimum retrogression and progression. In
limitations contained in section of two years to provide additional time addition, DHS believes that tying the
214(g)(4) of the INA do not apply to the for beneficiaries of Form I140 petitions extension to immigrant visa availability
H1B nonimmigrant worker if 365 days who lose their jobs to port to new H will encourage individuals to pursue
or more have elapsed since the filing of 1B employment. Finally, one lawful permanent residence without
an application for permanent labor commenter objected to the proposed interfering with the ability of petitioners
certification or Form I140 petition on requirements on the grounds that they to file H1B portability petitions on
the individuals behalf. The regulation could negatively affect an H1B behalf of foreign workers.89 DHS
as proposed did not accurately capture beneficiary who is subject to the J1 therefore is finalizing the provision with
the statute or DHS policy and practice, programs 2-year foreign residence some technical clarifying revisions.
and DHS has therefore corrected the requirement under section 212(e) of the The final rule also retains current
provision in this final rule to make clear INA because the foreign national would policy that alleviates concerns raised by
that an application for permanent labor be unable to file an application for commenters about the 1-year filing
certification or Form I140 petition only adjustment of status until he or she requirement. Specifically, the rule resets
needs to be filed at least 365 days before fulfills the two-year home residency the 1-year clock following any period in
the exemption would take effect.87 See requirement of section 212(e) or obtains which an application for adjustment of
final 8 CFR 214.2(h)(13)(iii)(D)(1), (5), a waiver of the residency requirement. status or immigrant visa could not be
and (7). Response. In section 106(a) of AC21, filed due to the unavailability of an
Further, DHS agrees with the Congress provided exemptions to the immigrant visa. It also authorizes USCIS
commenter that, in certain general 6-year limitation on H1B to excuse the failure to timely file such
circumstances, foreign workers need not admission for certain individuals who an application, as a matter of discretion,
be in H1B status to be eligible for the experience lengthy adjudication delays if an individual establishes that the
lengthy adjudication delay exemptions in the processing of their applications failure to apply was due to
under section 106(a) and (b) of AC21, as for adjustment of status. However, in circumstances beyond his or her
long as they previously held H1B section 106(b), Congress placed a 1-year control. The final rule further clarifies
status. This provision, as proposed and temporal limitation on the extension that for purposes of determining when
finalized in this rule, allows foreign period afforded to these individuals. an individual becomes ineligible for the
workers to obtain additional periods of The intent of this exemption was to help lengthy adjudication delay exemption,
H1B status through petitions to change facilitate the adjustment of status of DHS will look to see if he or she failed
status or through admission after H1B those individuals whose process was to apply for adjustment of status or an
visa issuance at a U.S. consulate. stymied due to adjudication delays. immigrant visa within 1 year of the date
Comment. A few commenters Allowing foreign workers to benefit an immigrant visa is authorized for
objected to the provision that makes an from the exemption when they do not issuance based on the applicable Final
individual ineligible for the lengthy file applications for adjustment of status Action Date in the Visa Bulletin. See
adjudication delay exemption if he or after an immigrant visa becomes final 8 CFR 214.2(h)(13)(iii)(D)(10).
she fails to file an application for immediately available, may allow such DHS recognizes that individuals
adjustment of status within 1 year of the workers to remain in H1B status admitted in J1 status who are subject
date an immigrant visa becomes indefinitely, which would run counter to a 2-year foreign residence
available. Commenters thought that the to the purpose of the statute. See S. Rep. requirement may experience uncertainty
1-year requirement is unnecessary, is No. 260, at 23. To avoid this result, DHS when seeking post-sixth year H1B
beyond DHSs legal authority, is is confirming that beneficiaries of extensions under section 106(a) of
contrary to the statute, and would force section 106(a) must file an application AC21, but the Department believes that
inappropriate concurrent or premature for adjustment of status within 1 year of this uncertainty is balanced by
filings. Additionally, commenters stated immigrant visa availability.88 including the discretion to excuse late
that including a provision tying AC21 DHS believes that, overall, the 1-year filings due to circumstances beyond the
extension time to immigrant visa filing requirement is consistent with individuals control. See id.
availability would hamper H1B congressional intent and provides a Comment. One commenter opposed
portability and be difficult to apply due reasonable amount of time for an the provision that prohibits extensions
to pace of visa availability progression individual to take the necessary steps of H1B status based on lengthy
and retrogression. Related to this, a toward obtaining lawful permanent adjudication delays in cases in which
commenter requested that DHS clarify residence, despite visa number the approval of the Form I140 petition
the exact circumstances under which an has been revoked, particularly in cases
immigrant visa is deemed to be 88 Unless otherwise indicated on the USCIS Web
in which the revocation is based on
immediately available. One commenter site at www.uscis.gov/visabulletininfo, individuals
seeking to file applications for adjustment of status
employer withdrawal. The commenter
asked DHS to revise the provision by with USCIS must use the DOS monthly Visa stated that such a policy is contrary to
Bulletin Final Action Dates chart indicating the statute, will hinder worker
an extension under this provision rely on the same when individuals may file such applications. The portability, and will increase costs to
labor certification application or Form I140 Visa Bulletin is available at https://travel.state.gov/
petition for purposes of a subsequent extension content/visas/en/law-and-policy/bulletin.html. new employers.
request. When USCIS determines that there are more Response. DHS did not propose an
87 As explained in the proposed rule, requests for immigrant visas available for the fiscal year than across-the-board ban on future H1B
1-year extensions of H1B status under the lengthy there are documentarily qualified immigrant visa extensions in cases in which employers
adjudication delay can include any periods of time applicants (as reported by DOS) and pending
withdraw their Form I140 petitions. In
the foreign national spent outside the United States applicants for adjustment of status, after accounting
during previous H1B petition validity for which for the historic drop off rate (e.g., denials,
withdrawals, abandonments), USCIS will state on 89 Individuals who apply for adjustment of status
recapture is sought, as well as any H1B
remainder periods available to the foreign its Web site that applicants may instead reference generally may apply for employment authorization
national. See 8 CFR 214.2(h)(13)(iii)(C); 8 CFR the Dates for Filing Visa Applications charts in and, if eligible, may receive employment
214.2(h)(9)(iii)(A)(1) and 8 CFR 214.2(h)(15)(ii)(B) this Visa Bulletin to determine whether they may authorization documents. Upon issuance of
(explaining that in no case may an H1B approval apply for adjustment of status. Specific questions employment authorization, such individuals would
period exceed 3 years or the period of LCA related to DOSs determinations are beyond the not require H1B portability to be able to work in
validity). scope of this rulemaking. the United States.
fact, under this final rule, DHS will no additional benefits, including avoiding period of authorized H1B stay in
longer automatically revoke the gaps in employment authorization, addition to the time requested in the
approval of a Form I140 petition based encouraging employers to file H1B exemption request, but in no case may
on petitioner withdrawal or termination extension petitions, facilitating the approval period exceed 3 years or
of the petitioners business if the portability, and realizing cost savings the validity period of the LCA. See 8
petition has been approved or the for both existing and new employers. CFR 214.2(h)(13)(iii)(E)(5).
associated application for adjustment of Response. DHS declines the Comment. A few commenters
status has been pending for 180 days or commenters suggestion to grant requested that, for purposes of
more. As long as the approval has not extensions of H1B status for determining eligibility for this
been revoked, the Form I140 petition individuals who are eligible for extension, DHS consider visa
will generally continue to be valid with extensions of stay in H1B status under unavailability at the time of filing, not
regard to the beneficiary for various job section 104(c) of AC21 that would cover at the time of adjudication. Commenters
portability and status extension the entire period their applications for noted that by doing so, the regulation
purposes under the immigration laws, adjustment of status are pending would be more consistent with a plain-
including extensions of status for adjudication. Although section 104(c) of language reading of the statute. One
certain H1B nonimmigrant workers AC21 provides authorization for H1B commenter stated that such an
under sections 104(c) and 106(a) and (b) status beyond the general 6-year interpretation would lead to greater
of AC21. See final 8 CFR maximum under section 214(g)(4) of the efficiencies by increasing certainty
205.1(a)(3)(iii)(C) and (D). Act for certain beneficiaries when the within the process, including by
Comment. One commenter suggested H1B petitioner can demonstrate that an allowing the petitioner and the
that in situations in which an H1B immigrant visa is not available to the beneficiary to know at the time of filing
nonimmigrant worker applies to change beneficiary at the time of filing, DHS whether the beneficiary would qualify
status to another nonimmigrant regulations, consistent with section for the benefit sought.
classification but is faced with a lengthy 212(n) of the Act, limit H1B petition Response. DHS appreciates the
adjudication, DHS should permit the approval validity period to the validity comments and recognizes that the
worker to enter a requested start date for period of the corresponding DOL- proposed regulatory text was not
the new classification on the approved labor condition application. consistent with its current practice to
Application to Extend/Change See 8 CFR 214.2(h)(9)(iii)(A)(1) and evaluate visa unavailability only at the
Nonimmigrant Status (Form I539). The (h)(15)(ii)(B)(1). DOL regulations time of filing.92 Therefore, DHS has
commenter also asked DHS to clarify dictating H1B labor condition revised the regulatory text in the final
where on the form the beneficiary application validity, which are not the rule by striking the phrase, the
should list the date on which his or her subject of this rulemaking, establish an unavailability must exist at time of the
H1B period of admission ends. upper limit of 3 years. See 20 CFR petitions adjudication. See final 8 CFR
Response. This issue will not be 655.750(a)(1). Furthermore, the language 214.2(h)(13)(iii)(E). Thus, consistent
addressed in this final rule, as it outside of AC21 section 104(c) does not confer with current practice, when determining
the scope of this rulemaking. This rule an automatic extension of status. An whether an H1B nonimmigrant worker
does not concern questions relating to extension of up to 3 years provides a is eligible for an extension of H1B
how individuals seeking to change reasonable mechanism to ensure status under section 104(c), USCIS
status from the H1B classification to continued eligibility. USCIS accordingly officers will continue to review the Visa
other nonimmigrant classification may grants such exemptions in increments of Bulletin that was in effect at the time of
complete forms to account for delays in up to 3 years until it adjudicates the filing of the Form I129 petition. If the
processing. DHS may consider this beneficiarys application for adjustment Visa Bulletin in effect on the date the
comment in future policy guidance or of status.90 See 8 CFR H1B petition is filed shows that the
rulemaking. DHS also notes that 214.2(h)(13)(iii)(E)(1). foreign worker was subject to a per
applicants requesting a change of status Although the heading for section country or worldwide visa limitation in
through the filing of a current version of 104(c) refers to a one-time protection, accordance with the foreign workers
Form I539 with USCIS may provide a the statutory text makes clear that the immigrant visa priority date, the H
future change of status effective date. exemption remains available until the 1B extension request under section
See Form I539 (version 04/06/15), beneficiary has an EB1, EB2, or EB 104(c) may be granted.
Application to Extend/Change 3 immigrant visa immediately available Comment. One commenter requested
Nonimmigrant Status, Part 2, Question to him or her.91 See AC21 104(c) that DHS clarify that the per-country
2. (authorizing H1B extensions under this limitation applies to beneficiaries of
exemption until the aliens application approved Form I140 petitions who are
iii. AC21 Section 104(c)Per Country ineligible for an immigrant visa either
for adjustment of status has been
Limitations because the per country limit for their
processed and a decision made
Comment. One commenter thereon). An H1B petition filed under country has been reached or because the
recommended that DHS change its section 104(c) may include any time worldwide limit on immigrant visas
longstanding policy of granting remaining within the normal 6-year in the EB1, EB2, and EB3 categories
extensions of H1B status in 3-year has been reached. See 8 CFR
increments under section 104(c) of 90 DHS notes that individuals may be eligible for 214.2(h)(13)(iii)(E). The commenter
AC21 for H1B nonimmigrant workers H1B extensions of stay under section 104(c) of
who are the beneficiaries of approved AC21 before filing an application for adjustment of 92 See USCIS Memorandum from Donald Neufeld,
status, so long as a Form I140 petition has been Supplemental Guidance Relating to Processing
Form I140 petitions. That commenter approved on their behalf and they are otherwise Forms I140 Employment-Based Immigrant
requested that DHS instead grant eligible for the extension. Petitions and I129 H1B Petitions, and Form I485
extensions to cover the entire period 91 See Neufeld May 2008 Memo, at 6, discussing
Adjustment Applications Affected by the American
during which such workers have DHS policy allowing for H1B extensions, in a Competitiveness in the Twenty-First Century Act of
maximum of three year increments, until such time 2000 (AC21) (Pub. L. 106313), as amended, and
pending applications for adjustment of as the foreign nationals application for adjustment the American Competitiveness and Workforce
status. The commenter believed that of status has been adjudicated, despite the title of Improvement Act of 1998 (ACWIA), Title IV of Div.
such a change would result in section 104(c). C. of Public Law 105277 (May 30, 2008).
noted that such an action would be CFR 214.2(h)(9)(iv) and 274a.12(c)(26)); provision applies only to the principal
consistent with current policy as possibly create uncertainty and long beneficiary of the Form I140 petition.
expressed in USCISs Neufeld May 2008 gaps in employment eligibility; impede Similarly, section 106(a) clearly states
Memo, which clarified that both per the efforts by some universities to that the exemption is available for any
country limitations and worldwide recruit and retain the most high-skilled H1B beneficiary on whose behalf an
unavailability of immigrant visas can individuals for positions that are often immigrant petition or labor certification
serve as the basis for extension under hard to fill; and prevent U.S. employers has been filed. As amended, that section
section 104(c).93 from benefiting from the talent of both states in pertinent part: The limitation
Response. DHS agrees with the spouses. contained in section 214(g)(4) of the
commenter that the per-country Immigration and Nationality Act (8
Some commenters asked DHS only to
limitation exemption applies to all U.S.C. 1184(g)(4)) with respect to the
beneficiaries of approved Form I140 revise the provision concerning
extensions under section 104(c), such duration of authorized stay shall not
petitions whose priority dates are on or apply to any nonimmigrant alien
after the applicable cut-off date in either that a spouse who is in H1B
nonimmigrant status could benefit from previously issued a visa or otherwise
the country-specific or worldwide provided nonimmigrant status under
columns of the Visa Bulletin chart. his or her spouses certified labor
certification or approved Form I140 section 101(a)(15)(H)(i)(b) of such Act (8
These beneficiaries may apply for an U.S.C. 1101(a)(15)(H)(i)(b)), if 365 days
extension under 8 CFR petition as the basis for an H1B
extension under section 104(c). One or more have elapsed since the filing of
214.2(h)(13)(iii)(E), consistent with any of the following: (1) Any
longstanding policy. The reference to commenter stated that section 106(a) of
AC21 may be used as a basis to allow application for labor certification under
per country limitations in section section 212(a)(5)(A) of such Act (8
104(c) invokes chargeability: The an H1B nonimmigrant worker to seek
a 1-year extension of H1B status U.S.C. 1182(a)(5)(A)), in a case in which
determination as to which countrys certification is required or used by the
numerical limits the beneficiarys visa beyond 6 years when his or her spouse,
who is also an H1B nonimmigrant alien to obtain status under section
will be charged to or counted against. 203(b) of such Act (8 U.S.C. 1153(b)). (2)
See INA 202(b), 8 U.S.C. 1152(b). For worker, is the beneficiary of an
appropriately filed permanent labor A petition described in section 204(b) of
purposes of section 104(c), when such Act (8 U.S.C. 1154(b)) to accord the
reviewing the relevant Visa Bulletin certification application.
alien a status under section 203(b) of
chart, there is no difference between Response. DHS disagrees with the such Act.
nationals of countries who are identified commenters statements and is not As with section 104(c), DHS also
separately on the Visa Bulletin because adopting any of the suggested changes. interprets the reference to section
their applicable per-country limitation In the final rule, DHS is formalizing 203(b) in section 106(a) to apply to
has been exceeded (i.e., nationals of longstanding DHS policy, without principal beneficiaries of Form I140
India, China, or Mexico), and nationals change, that requires a foreign worker petitions, but not derivative
of those countries who are grouped seeking an extension of H1B status to beneficiaries who are separately
under the All Chargeability column, independently meet the requirements addressed in section 203(d) of the INA,
as long as the priority date has not been for such an extension.94 See 8 CFR which provides that family members
reached for the particular beneficiary in 214.2(h)(13)(iii)(D)(9) and may be accorded the same immigrant
question. (h)(13)(iii)(E)(6). DHS believes this visa preference allocation as the
iv. Spousal Eligibility for H1B policy best fulfills Congresss intent in principal beneficiary.
Extensions Beyond Six Years Under enacting AC21. The legislation DHS notes, however, that derivative
AC21 expressly allows H1B nonimmigrant beneficiaries may be eligible for an
status beyond the 6-year general independent grant of work authorization
Comment. Several commenters limitation for the beneficiary of a in accordance with 8 CFR 214.2(h)(9)(iv)
objected to proposed 8 CFR petition filed under 204(a) of [the INA] and 274a.12(c)(26). Those regulations
214.2(h)(13)(iii)(E)(6) and for a preference status under paragraph extend eligibility for employment
(h)(13)(iii)(D)(6), which would limit H (1), (2), or (3) of 203(b) [of the INA].
1B extensions under sections 104(c) and authorization to certain H4 dependent
AC21 104(c). Section 203(b) of the INA, spouses of H1B nonimmigrant workers
106(a) of AC21 to principal beneficiaries in turn, applies to principal
of permanent labor certification who are seeking LPR status, including
beneficiaries of Form I140 petitions, H1B nonimmigrant workers who are
applications or Form I140 petitions, as but not derivative beneficiaries who are
applicable. Some commenters requested the principal beneficiaries of an
separately addressed in section 203(d) approved Form I140 petition or who
that 8 CFR 214.2(h)(13)(iii)(E)(6) and of the INA. DHS concludes that the
(h)(13)(iii)(D)(6) be stricken from the have had their H1B status extended
reference to a single beneficiary in under section 106(a) and (b) of AC21.
final rule entirely, asserting that DHSs section 104(c) of AC21 reasonably
alleged overly narrow reading of Accordingly, DHS is not revising its
supports an interpretation that the longstanding policy to address the
sections 104(c) and 106(a) would:
Conflict with Congresss determination commenters suggestion.
94 See USCIS Memorandum from Donald Neufeld,
that family members are entitled to the Supplemental Guidance Relating to Processing L. Whistleblower Protections in the H
same status as the principal beneficiary Forms I140 Employment-Based Immigrant 1B Nonimmigrant Program
of an immigrant visa petition; create an Petitions and I129 H1B Petitions, and Form I485
unnecessary burden on some dependent Adjustment Applications Affected by the American 1. Description of Final Rule and
spouses by forcing them to obtain a

Competitiveness in the Twenty-First Century Act of Changes From NPRM
2000 (AC21) (Pub. L. 106313), as amended, and
change of status to H4 nonimmigrant the American Competitiveness and Workforce In this final rule, DHS enhances
status before an employment Improvement Act of 1998 (ACWIA), Title IV of Div. worker protection by providing
authorization application based on their C. of Public Law 105277 at 6 (May 30, 2008), whistleblower protections in cases of
available at https://www.uscis.gov/sites/default/
H4 status can be adjudicated (see 8 files/USCIS/Laws/Memoranda/Static_Files_
retaliation by the workers employer.
Memoranda/Archives%201998-2008/2008/ac21_30 The final rule provides that a qualifying
93 Neufeld May 2008 memo, at 6. may08.pdf. employer seeking an extension of stay
for an H1B nonimmigrant worker, or a unduly restrictive. Moreover, DHS notes employers labor condition application
change of status from H1B status to that the whistleblower provision does obligations under section
another nonimmigrant classification, not provide a shortcut, or even a path, 212(n)(2)(C)(iv) of the INA. USCIS may
would be able to submit documentary to lawful permanent residence status as consider a loss or failure to maintain H
evidence indicating that the beneficiary asserted by the commenter. 1B status by the beneficiary related to
faced retaliatory action from his or her Comment. One commenter expressed such violation as due to, and
employer based on a report regarding a concern about the provision in the commensurate with, extraordinary
violation of the employers LCA proposed rule that requires new circumstances as defined by 8 CFR
obligations. See final 8 CFR employers to present DHS with the DOL 214.1(c)(4) and 248.1(b). These
214.2(h)(20). If DHS determines such complaint and evidence of retaliatory provisions allow DHS to take into
documentary evidence to be credible, action. The commenter believed that account that the employee may no
DHS may consider any loss or failure to provision may infringe on the workers longer be in valid H1B status at the
maintain H1B status by the beneficiary privacy and discourage the worker from time the new H1B petition is submitted
related to such violation as an taking advantage of the whistleblower to DHS. However, this provision does
extraordinary circumstance under 8 protection. The commenter not allow the beneficiary to stay beyond
CFR 214.1(c)(4) and 248.1(b). Those recommended that such workers be the maximum (generally, 6-year) period
regulations, in turn, authorize DHS to provided the option of providing of stay for an H1B nonimmigrant
grant a discretionary extension of H1B documentary evidence in a sealed workers, unless otherwise eligible.
stay or a change of status to another envelope with the H1B petition, or in Comment. One commenter requested
nonimmigrant classification. See 8 CFR some other way that protects his or her that DHS clarify the types of
214.1(c)(4) and 248.1(b). Finally, DHS privacy. employment considered appropriate for
makes a technical change to 8 CFR Response. While DHS appreciates the whistleblowers when seeking
214.2(h)(20), fixing the reference to the commenters concerns regarding the appropriate employment. See INA
labor condition application. privacy of whistleblowers, DHS has a 212(n)(2)(C)(iv). The commenter further
fundamental interest in the integrity of recommended that the H1B
2. Public Comments and Responses the information and documentary nonimmigrant worker should be
Comment. Several commenters evidence submitted as part of a permitted to work in another position
supported the provisions in the nonimmigrant visa petition. Under 8 that is within the occupational
proposed rule regarding the protection CFR 103.2(a)(2), the petitioner must classification of the LCA filed on his or
of whistleblowers in the H1B ensure the credibility of such evidence. her behalf by the petitioning employer.
nonimmigrant program. The If the beneficiary of an H1B petition Response. DHS notes that the final
commenters believe that the regulatory were allowed to provide sealed rule does not restrict the types of jobs
text will enhance the likelihood that H evidence of which the petitioner may or occupational classifications that
1B nonimmigrant workers will report have no knowledge, then the petitioner whistleblowers may seek; however, a
employer violations and misconduct. would not be able to certify the veracity beneficiary seeking employment in such
One commenter, however, opposed the of such evidence in compliance with 8 circumstances must be granted the
proposed codification of the ACWIA CFR 103.2(a)(2). Moreover, because DHS appropriate work authorization to work
whistleblower protections in 8 CFR did not propose to revise 8 CFR for a new employer.
214.2(h)(20), unless the phrase the 103.2(a)(2) in the NPRM to allow for the Comment. One commenter requested
beneficiary faced retaliatory action was proposed provision of sealed evidence that DHS expand upon the types of
amended to read, the beneficiary by a beneficiary, DHS is unable to documentary evidence the Department
suffered from retaliatory action provide a regulatory accommodation to would accept to establish violations of
described in 8 U.S.C. 1182(n)(2)(C)(iv). modify those requirements in this final employer LCA obligations. The
The commenter reasoned that the rule. However, DHS will consider ways commenter stated that acceptable forms
statutory provision provides a precise to address the concerns raised by the of evidence should be broadened to
definition of retaliatory action and that, commenter in the future. In addition, include other relevant documents, such
without a more precise definition in the DHS notes that the regulations do not as an employment offer, prevailing wage
regulation, DHS would create arbitrary preclude petitioners from working with confirmation letter, and ETA Form
incentives for H1B nonimmigrant beneficiaries of H1B petitions to 9089, even if the worker has not filed a
workers to abuse the whistleblower acquire and submit the requisite complaint against the employer.
process as a shortcut to obtaining lawful documentary evidence in a manner that Response. Section 212(n)(2)(C)(v) of
permanent residence. would protect the beneficiaries privacy. the INA requires the Secretary of Labor
Response. DHS appreciates the Comment. One commenter requested and the Secretary of Homeland Security
commenters support for inclusion of that workers who have exceeded the to devise a process under which an H
the whistleblower protections in the maximum period of stay in H1B status 1B nonimmigrant worker may file a
final rule. DHS also believes the be allowed to apply for whistleblower complaint regarding a violation of
regulatory text is sufficiently clear and protection. The commenter believed clause (iv), which prohibits employers
is not adopting the suggested change to that by the time some workers become from intimidating, threatening,
the text at 8 CFR 214.2(h)(20). DHS aware of employer violations, they may restraining, coercing, blacklisting,
notes that INA 212(n)(2)(C)(iv) and (v) no longer be in status. discharging, or in any other manner
require DHS and DOL to devise a Response. The final rule allows for discriminating against an employee as
process for protecting individuals who credible documentary evidence to be retaliation for whistleblowing. Under
file complaints about their employers provided, in support of a petition that section, an H1B nonimmigrant
retaliatory actions, but the statutory seeking an extension of H1B stay or worker who is otherwise eligible to
provisions do not require such change of status to another remain and work in the United States
individuals to demonstrate that they classification, indicating that the may be allowed to seek other
have suffered as a result of such actions. beneficiary faced retaliatory action from appropriate employment in the United
Therefore, DHS believes that adopting his or her employer based on the States for a period not to exceed the
the commenters suggestion would be reporting of a violation of the maximum period of stay authorized for
H1B classification. See INA section whenever employment ends for these nonimmigrants who file whistleblower
212(n)(2)(C)(v), 8 U.S.C. individuals. See 8 CFR 214.1(l)(2). complaints are able to seek continued
1182(n)(2)(C)(v). In addition, DHS has Therefore, DHS does not believe it is employment in the United States in H
not limited the scope of credible necessary to add a specific provision to 1B status or under other nonimmigrant
evidence that may be included to the regulations that gives a shorter grace classifications, if otherwise eligible.
document an employer violation. period to H1B nonimmigrants who USCIS has implemented this statute by
Rather, DHS generally requests credible may have been the victims of employer excusing an individuals failure to
documentary evidence indicating that retaliation. DHS believes that the 60-day maintain H1B status if there is credible
the beneficiary faced retaliatory action grace period allows certain high-skilled evidence that the failure was due to
from his or her employer due to a report workers facing a sudden or unexpected employer retaliation. In this final rule,
regarding a violation of the employers end to their employment sufficient time DHS is codifying this practice under
LCA obligations. to seek new employment, seek a change new 8 CFR 214.2(h)(20), the provision
Comment. One commenter requested of status to a different nonimmigrant addressing retaliatory action claims.
that the final rule include a provision classification, or make preparations for Under that provision, USCIS may
granting employment authorization to departure from the United States. permit individuals who face retaliatory
an H1B nonimmigrant worker who Comment. One commenter requested action from an employer based on a
faces retaliatory action due to employer that the debarment provisions in the H report regarding violations of the
violations of LCA obligations, and his or 1B program should be revised to employers LCA obligations, as
her spouse and eligible dependents, in strengthen whistleblower protections. described in section 212(n)(2)(C)(iv) of
order to help defray the financial costs The commenter stated that current H the Act, and whose loss or failure to
resulting from such violations. 1B debarment regulations fail to protect maintain H1B status relates to the
Response. There is no express the existing workforce when violations employer violation, to extend their stay
independent employment authorization are found, thus inadvertently penalizing in H1B status or change status to
for an H1B nonimmigrant worker who the H1B nonimmigrant workers another classification. DHS currently
faces retaliatory action due to employer themselves by making it impossible for collaborates with its interagency
violations of LCA obligations. However, them to renew their visas once their partners on matters of shared statutory
under provisions in the rule, an H1B employers are debarred. The commenter responsibility and will continue to seek
nonimmigrant worker facing employer further stated that the rule should ways to enhance such collaboration in
retaliation, along with his or her include provisions to exempt the the future.
dependents, may benefit from the grace existing workforce from being affected
period of up to 60 days during which by employer debarment or to make H M. Haitian Refugee Immigrant Fairness
the worker could extend or change 1B nonimmigrant workers whose Act of 1998
status. Alternatively, if the H1B employers are debarred automatically 1. Changes to DHS HRIFA Regulations
nonimmigrant worker is the beneficiary eligible for other forms of relief, such as DHS did not receive public comments
of a qualifying and approved deferred action or independent EADs. regarding the proposed changes to the
employment-based immigrant visa Response. DHS does not believe it is
DHS regulations concerning individuals
petition, the worker may obtain necessary to revise 8 CFR 214.2(h)(20) to
applying for adjustment of status under
employment authorization in address the commenters concerns, as
the Haitian Refugee Immigrant Fairness
compelling circumstances pursuant to 8 various types of relief are available to
Act of 1998 (HRIFA), Public Law 105
CFR 204.5(p), if otherwise eligible. these workers under this rule. For
277, div. A, title IX, sections 901904,
Comment. One commenter requested example, H1B nonimmigrant workers
112 Stat. 2681538542 (codified as
that DHS institute specific penalties of employers who are subsequently
amended at 8 U.S.C. 1255 note (2006)).
against employers that are proven to debarred from the H1B program may
Therefore, DHS is retaining these
have violated statutory requirements be eligible to use the 60-day grace
changes as proposed. Under the final
related to the H1B program, period afforded by this rule to seek new
rule, DHS will be required to issue an
particularly when those violations may employment, seek a change of status to
EAD, rather than an interim EAD,
have caused H1B nonimmigrant a different nonimmigrant classification,
within the timeframes currently
workers to lose their H1B status. or make preparations for departure from
Response. DHS notes that the INA provided in 8 CFR 245.15(n)(2).
the United States. Moreover, these
already provides penalties for Additionally, HRIFA-based applicants
workers may be eligible to apply for a
employers that violate statutory compelling circumstances EAD. for adjustment of status are eligible for
requirements regarding H1B Comment. One commenter noted that the automatic 180-day extension of
compliance. Those penalties are listed INA 212(n)(2)(C) requires DHS to expiring EADs, provided they file a
in section 212(n)(2)(C) of the INA. establish a process for H1B timely request for renewal. See final 8
Comment. One commenter requested nonimmigrant workers to file CFR 245.15(n)(2).
that DHS provide 30-day grace periods complaints with DOL regarding illegal N. Application for Employment
to H1B nonimmigrant workers who retaliation. The commenter encouraged Authorization
experience involuntary termination. The DHS to coordinate this process with
commenter noted that a 30-day grace DOJs Office of Special Counsel for 1. Description of Final Rule and
period would help such workers due to Immigration-Related Unfair Changes From NPRM
the considerable time it may take to Employment Practices (OSC) and argued In this final rule, DHS is adopting
gather credible evidence of retaliation that creating a streamlined, consistent with minimal changes the NPRMs
and seek new employment. reporting mechanism for whistleblowers proposed regulatory text to update 8
Response. The final rule provides H would promote integrity in the CFR 274a.13 governing the processing of
1B nonimmigrants, among others, a enforcement process. Applications for Employment
grace period during each authorized Response. DHS believes that the Authorization (Forms I765) and is also
nonimmigrant validity period of up to commenter is referencing INA changing its policy concerning how
60 days or until the existing validity 212(n)(2)(c)(v), which requires DOL and early USCIS will accept renewal
period ends, whichever is shorter, DHS to devise a process to ensure H1B applications in the same employment
category (by allowing, except when the employment category requirement, employment eligibility categories as
impracticable, filings up to 180 days the renewal applicant must continue to qualifying for automatic EAD/
before expiration). First, DHS is be employment authorized incident to employment authorization extensions
modifying the changes to 8 CFR status beyond the expiration of the EAD under this final rule.99 USCIS will
274a.13(a) proposed in the NPRM by or be applying for renewal under a
adding a provision indicating that category that does not first require been deemed prima facie eligible for TPS under 8
USCIS may announce through its Web adjudication of an underlying benefit CFR 244.10(a) and have received an EAD as a
temporary treatment benefit under 8 CFR
site, in addition to form instructions, application, petition, or request. The 244.10(e) and 274a.12(c)(19); aliens who have
which employment categories may file rule clarifies that this requirement properly filed applications for asylum or
EAD applications concurrently with applies to individuals granted TPS withholding of deportation or removal (see 8 CFR
underlying benefit requests. Second, as described in 8 CFR 274a.12(a)(12) and 274a.12(c)(8); aliens who have filed applications for
adjustment of status under section 245 of the INA,
proposed, DHS is eliminating the pending applicants for TPS issued EADs 8 U.S.C. 1255 (see 8 CFR 274a.12(c)(9)); aliens who
regulatory provision at current 8 CFR under 8 CFR 274a.12(c)(19). The final have filed applications for suspension of
274a.13(d) that directs USCIS to rule requires, as proposed, that deportation under section 244 of the INA (as it
adjudicate Forms I765 within 90 days qualifying applicants file their renewal existed prior to April 1, 1997), cancellation of
removal under section 240A of the INA, or special
of filing and that requires interim applications timely (i.e., prior to the rule cancellation of removal under section 309(f)(1)
employment authorization documents expiration of their EADs) for the of the Illegal Immigration Reform and Immigrant
to be issued if the adjudication is not automatic EAD extension to apply.97 Responsibility Act of 1996 (see 8 CFR
completed within the 90-day However, this rule clarifies that for 274a.12(c)(10)); aliens who have filed applications
for creation of record of lawful admission for
timeframe.95 Third, to help prevent gaps renewal applications based on TPS, the permanent residence (see 8 CFR 274a.12(c)(16));
in employment authorization, DHS is automatic EAD extension provision will aliens who have properly filed legalization
providing for the automatic extension of apply to individuals who file during the applications pursuant to section 210 of the INA, 8
expiring EADs (and underlying re-registration period described in the U.S.C. 1160 (see 8 CFR 274a.12(c)(20)); aliens who
have properly filed legalization applications
employment authorization, if Federal Register notice applicable to pursuant to section 245A of the INA, 8 U.S.C. 1255a
applicable) for up to 180 days with their countrys TPS designation, even if (see 8 CFR 274a.12(c)(22)); aliens who have filed
respect to individuals who are seeking they file after their EADs are facially applications for adjustment of status pursuant to
renewal of their EADs (and, if expired. This final rule is making this section 1104 of the LIFE Act (see 8 CFR
274a.12(c)(24)); and aliens who are the principal
applicable, employment authorization) clarification because, in limited cases, beneficiaries or qualified children of approved
based on the same employment the re-registration period may extend VAWA self-petitioners, under the employment
authorization categories under which beyond the EAD validity period. authorization category (c)(31) in the form
they were granted. For a renewal DHS listed 15 employment categories instructions to the Application for Employment
in the Supplementary Information to the Authorization (Form I765).
applicant who is a Temporary Protected 99 The TPS-related employment authorization
Status (TPS) beneficiary or individual NPRM that meet the regulatory categories, 8 CFR 274a.12(a)(12) and (c)(19), are
approved for TPS temporary treatment criteria.98 DHS reaffirms the list of 15 included in the list of categories that are eligible for
benefits, 96 the renewal application can the automatic 180-day EAD extension. The category
indicate an employment authorization 97 This final rule also adopts, with clarifying based on 8 CFR 274a.12(a)(12) denotes that the EAD
changes, the provisions related to the new is for employment authorization based on a grant
category based on either 8 CFR of TPS. The category based on 8 CFR 274a.12(c)(19)
automatic EAD extension provision, including that:
274a.12(a)(12) or (c)(19). In addition to An EAD that is automatically extended will denotes that the EAD is for employment
continue to be subject to any limitations and authorization for a TPS applicant who is prima
95 Excepted from the 90-day processing conditions that applied before the extension (see facie eligible for TPS based on a pending TPS
requirement in 8 CFR 274a.13(d)), prior to its final 8 CFR 274a.13(d)(2)); although the validity of application. EADs are considered temporary
elimination in this rulemaking, are the following the expiring EAD will be extended for up to 180 treatment benefits when provided to such pending
classes of aliens: Applicants for asylum described days, such validity will be automatically terminated TPS applicants. See 8 CFR 244.5, 244.10(e). If TPS
in 8 CFR 274a.12(c)(8); certain H4 nonimmigrant upon the issuance of a notification of denial of the is granted before the expiration date on the
spouses of H1B nonimmigrants; and applicants for renewal application (see final 8 CFR 274a.13(d)(3)); individuals EAD based on 8 CFR 274a.12(c)(19),
adjustment of status applying under the Haitian and automatic extensions may also be terminated USCIS usually allows the individual to continue
Refugee Immigrant Fairness Act of 1998 (HRIFA). before the renewal application is adjudicated either using that EAD until it expires and does not issue
Application processing for asylum applicants is through written notice to the applicant, or a notice an 8 CFR 274a.12(a)(12)-based EAD for a TPS
governed by current 8 CFR 274a.13(a)(2) and does to a class of aliens published in the Federal beneficiary until the individual requests an EAD
not include provisions for interim employment Register, or any other applicable authority (see final during the next TPS re-registration period for the
authorization documentation. The employment 8 CFR 274a.13(d)(3)).)) individuals country. If the relevant TPS country
authorization of applicants for adjustment of status 98 In the NRPM, DHS listed 15 employment designation is extended, the re-registration process
under HRIFA is governed by 8 CFR 245.15(n). The authorization categories under which renewal is published in the Federal Register and includes
provision at 8 CFR 274a.13(d) also exempts applicants would be able to receive automatic EAD instructions on filing to show continued
applicants for adjustment of status described in 8 extensions. Note that this list corrects an error in maintenance of TPS eligibility and to renew work
CFR 245.13(j). In 2011, 8 CFR 245.13 was removed the NPRM wherein DHS failed to include Palau authorization documentation. In the past, there
from DHS regulations. See 76 FR 53764, 53793 among the list of nations specified in the eligible have been some very limited circumstances where
(Aug. 29, 2011). However, the cross-reference to 8 employment category based on 8 CFR 274a.12(a)(8). the designated filing period extended beyond the
CFR 245.13(j) in current 8 CFR 274a.13(d) was As corrected, the list of 15 employment existing EAD validity date. Therefore, an applicant
inadvertently retained. Prior to its removal in 2011, authorization categories are: Aliens admitted as who files an application to renew his or her EAD
8 CFR 245.13 provided for adjustment of status for refugees (see 8 CFR 274a.12(a)(3)); aliens granted may receive an automatic extension under this rule,
certain nationals of Nicaragua and Cuba pursuant asylum (see 8 CFR 274a.12(a)(5)); aliens admitted as as long as the application is filed during the
to section 202 of the Nicaraguan Adjustment and parents or dependent children of aliens granted designated TPS re-registration filing period in the
Central American Relief Act, Public Law 105100, permanent residence under section 101(a)(27)(I) of TPS Federal Register notice, even where that
111 Stat. 2160, 2193 (Nov. 19, 1997). The the INA, 8 U.S.C. 1101(a)(27)(I) (see 8 CFR period may extend beyond the current EAD validity
application period for benefits under this provision 274a.12(a)(7)); aliens admitted to the United States date. Additionally, because the 8 CFR
ended April 1, 2000. USCIS removed 8 CFR 245.13 as citizens of the Federated States of Micronesia, 274a.12(a)(12) and (c)(19) eligibility categories both
from DHS regulations in 2011 as it no longer has the Marshall Islands, or Palau under agreements relate to TPS, the applicant may benefit from the
pending applications pursuant to this provision. between the United States and those nations (see 8 automatic 180-day extension as long as the receipt
See 76 FR at 53793. CFR 274a.12(a)(8)); aliens granted withholding of notice for the EAD renewal application and the
96 Individuals approved for TPS temporary deportation or removal (see 8 CFR 274a.12(a)(10)); facially expired card in the applicants possession
treatment benefits includes those who obtain aliens granted Temporary Protected Status (TPS) bear either of these two eligibility categories, but
employment authorization based on prima facie (regardless of the employment authorization they do not need to match each other. Therefore,
eligibility for TPS during adjudication of their TPS category on their current EADs) (see 8 CFR if an individual has an EAD bearing the 8 CFR
applications. See INA 244(a)(4), 8 U.S.C. 274a.12(a)(12) and (c)(19)); aliens who have 274a.12(c)(19) eligibility category, but has since
1254a(a)(4); 8 CFR 244.5, 244.10(e). properly filed applications for TPS and who have Continued
maintain, and update as necessary, the processing time for Applications for applicant receiving employment
list of qualifying employment categories Employment Authorization (Forms I authorization faster than if the applicant
on its Web site. 765) from the regulations will cause were required to file Form I765 only
Current DHS policy allows EAD gaps in employment, undue hardship, after receiving a grant of the underlying
renewal applications submitted under job losses, or longer adjudication times. benefit request.
certain categories to be filed up to 120 DHS believes that, regardless of the Comment. Many commenters
days before the applicants current EAD imposition of a fee, Forms I765 must supported keeping the 90-day timeframe
expires. In response to the comments be adjudicated within reasonable for adjudicating EADs in the
received requesting additional time for timeframes. Although DHS is regulations. These commenters stated
advance filing, DHS will adopt a filing eliminating the 90-day processing that the regulatory timeframe provides
policy that will generally permit the timeframe for Forms I765 from the certainty for applicants, offers a
filing of an EAD renewal application up regulatory text, USCIS continues to be potential legal remedy if EADs are not
to 180 days before the current EAD committed to the processing goals it has delivered on time, and provides interim
expires, except when impracticable. established for Form I765. Many relief if adjudication deadlines are not
This filing policy will be posted on the renewal applicants who may have met. Several of these commenters
USCIS Web site and will take into benefitted from the 90-day timeframe for asserted that DHSs plan to publish
consideration any other regulatory Form I765 will now be able to benefit operational policy guidance was an
provisions that might require a longer or from this rules provision regarding inadequate substitute for keeping the
shorter filing window depending on the automatic EAD extensions for up to 180 90-day timeframe in the regulations,
specific renewal EAD employment days for certain employment categories. especially as it could strip applicants of
category. DHS anticipates that the automatic EAD legal protection when EAD
The measures DHS is taking in this extension will ensure continued adjudications take longer than 90 days.
final rule will provide additional employment authorization for many Another commenter suggested that
stability and certainty to employment- renewal applicants and prevent any DHS keep the 90-day adjudication
authorized individuals and their U.S. work disruptions for both the applicants requirement in the regulations but add
employers, while reducing and their employers. limited exceptions. According to the
opportunities for fraud and better commenter, these exceptions could
Eliminating the 90-day EAD address situations involving security
accommodating increased security processing timeframe will also support
measures, including technological concerns, situations in which
USCISs existing practice regarding underlying benefit applications or
advances that utilize centralized concurrent filing of EAD applications
production of tamper-resistant petitions are still being adjudicated, and
based on underlying immigration situations involving operational
documents. benefits. For example, although victims emergencies that prevent DHS from
2. Public Comments and Responses of domestic violence can receive their making timely adjudications.
i. Adjudication Timeframes for Initial initial EADs only after USCIS Response. DHS disagrees that
and Renewal Applications of adjudicates the underlying victim-based operational policy statements regarding
Employment Authorization benefit request, USCIS allows the the 90-day application adjudication
concurrent filing of the Form I765 with timeframe will be inadequate. The
Comment. Many commenters the underlying victim-based benefit public will be able to rely on USCISs
disagreed with the proposal to eliminate request so that such victims receive announcements regarding Form I765
the 90-day processing requirement for EADs expeditiously following a grant of processing, which will reflect USCISs
adjudicating EAD requests. These the benefit request. See Form I765 form up-to-date assessment of its operational
commenters expressed concerns that instructions, at page 7 (instructions for capabilities. Applicants also will
eliminating this requirement would self-petitioners under the Violence continue to have redress in case of
cause gaps in employment authorization Against Women Act (VAWA)). Before adjudication delays by contacting
for certain foreign workers, lead to USCIS adopted this practice, applicants USCIS. See https://www.uscis.gov/
longer adjudication times, ultimately who concurrently filed a victim-based forms/tip-sheet-employment-
lead to job losses, and cause hardship benefit request with a Form I765 authorization-applications-pending-
for many beneficiaries. Some would have their Form I765 denied if more-75-days.
commenters further noted that delays in the underlying benefit was not DHS also declines to adopt the
the adjudication of EAD applications for adjudicated within 90 days of filing. suggestion by commenters to retain the
certain vulnerable populationssuch as USCIS issued such denials on the 90-day adjudication timeframe in the
crime victims, victims of domestic and ground that the applicant was not yet regulations and modify it to provide for
other gender-based violencecould eligible to receive an EAD because the exceptions, such as in cases involving
place them in even more desperate underlying benefit request was still security concerns. Applying different
situations. Another commenter stated pending. Removal of the 90-day processing standards to certain
that the fee associated with the 90-day regulatory timeframe allows USCIS to applicants adds complexity to the
adjudication provides a social not only accept Forms I765 overall management of the agencys
contract that ensures that USCIS will concurrently filed with the underlying workloads, and to the customer service
timely adjudicate requests and prevent victim-based benefit requests, but also inquiry process.
delays that could harm the employment permits the Form I765 to remain The additional relief from processing
prospects of applicants. pending until USCIS completes its delays that DHS is providing in this
Response. DHS carefully considered adjudication of the benefit request. Once final rule is the new provision that
these concerns, but disagrees with the USCIS issues a final decision on the automatically extends the validity of
assertion that eliminating the 90-day underlying benefit request that permits EADs and, if needed, employment
approval of the Form I765, USCIS will authorization for up to 180 days for
received TPS and is applying for a renewal under
the 8 CFR 274a.12(a)(12) eligibility category, he or
be able to immediately issue a decision certain applicants who timely file
she would still get the benefit of the automatic 180- on the Form I765 and produce an EAD. renewal EAD applications under the
day extension under this rule. This will result in the victim-based EAD same eligibility category. The automatic
extension will only apply to such appropriate. USCIS will post filing time this final rule to include Web site
renewal applicants if their employment periods for renewal EAD applications announcements related to the
is authorized incident to status beyond on its Web site. concurrent filing of Forms I765.
the expiration of their current EADs or Placing information regarding the
iii. Concurrent Filings
if their eligibility is not dependent on availability of concurrent filings on
USCIS first adjudicating an underlying Comment. One commenter suggested USCISs Web site will enable DHS to
immigration benefit. allowing applicants to file for EADs more efficiently make updates,
concurrently with related benefit particularly as the transformation to
ii. Earlier Filing for EAD Renewals requests (e.g., a nonimmigrant visa electronic processing occurs in the
Comment. Several commenters asked petition or an application for adjustment future.101 USCIS also will continue
DHS to permit the filing of a renewal of status). Although this is currently posting guidance in other public
EAD application up to 180 days in allowed to the extent permitted by the engagement materials regarding
advance of the expiration of the form instructions or as announced on concurrent filings.102 Applicants should
applicants current EAD. These the USCIS Web site, this commenter consult the appropriate form
commenters noted that DHS currently stated that form instructions rarely instructions or the USCIS Web site to
will not accept a renewal EAD specify when an EAD may be filed determine whether they may file their
application that is filed more than 120 concurrently with another petition, and Form I765 concurrently with their
days prior to the expiration date. They also stated that forms should not be a underlying benefit request.
suggested that by permitting earlier substitute for the law when determining Regarding the example raised by the
filing, renewal applicants who are not when a benefit can be requested. For commenter, the Form I539 instructions
eligible for the automatic 180-day example, the commenter noted that do not address issues of employment
extension will have a greater chance of instructions have not been updated for authorization. Rather, the Form I539
having their applications adjudicated the Application to Extend/Change instructions outline who is eligible to
before their EADs expire and thus avoid Nonimmigrant Status (Form I539) to apply for an extension of stay or change
a gap in employment authorization. One state that some H4 dependent spouses of nonimmigrant status. However, the
commenter also stated that a longer are now eligible for EADs. The current version of the Form I765
filing window would better align with commenter recommended amending the instructions clearly state that some H
the current Form I129 filing window provision to allow concurrent filings to 4 nonimmigrant spouses of H1B
for H1B and L1 nonimmigrants, the extent permitted by law, rather than nonimmigrant workers are eligible for
allowing nonimmigrant workers (and only as provided in form instructions.
employment authorization and may also
dependents eligible to apply for EADs) Response. This rule provides general
be able to concurrently file their Form
to concurrently apply for extensions of authority for allowing Forms I765 to be
concurrently filed with other benefit I765 with Form I539. DHS also
stay and employment authorization.
requests where eligibility for currently permits such H4
Moreover, commenters stated that
employment is contingent upon a grant nonimmigrant spouses seeking an
allowing applications to be submitted
of the underlying benefit request. See extension of stay to file Form I539
further in advance would benefit DHS
final 8 CFR 274a.13(a). It is not possible concurrently with a Petition for a
by affording it more time to manage its
to allow concurrent filing across all Nonimmigrant Worker (Form I129)
workload, and alleviate concerns about
eligible categories. For example, an seeking an extension of stay on behalf
its ability to process all Forms I765
asylum applicant cannot apply for work of the H1B nonimmigrant worker. This
within 90 days.
authorization until the completed provides several efficiencies, as
Response. DHS strongly encourages
asylum application has been pending continued H4 status of the dependent
eligible individuals to file renewal EAD
for at least 150 days. See 8 CFR 208.7(a). spouse is based on the adjudication of
applications (Forms I765) sufficiently
By establishing regulatory authority for the H1B nonimmigrant workers Form
in advance of the expiration of their
USCIS to permit concurrent filing when I129 petition and both forms may be
EADs to reduce the possibility of gaps
appropriate, this rule provides USCIS processed at the same USCIS location.
in employment authorization and EAD
with the flexibility necessary to decide By posting concurrent filing instructions
validity. DHS appreciates commenters
when concurrent filing is feasible based in form instructions or on the USCIS
desire to avoid such gaps and agrees
with commenters that modifying the on existing operational considerations 101 Over the next several years, USCIS will
filing policy to allow Forms I765 to be that take into account the particular continue rolling out a secure, customer-friendly
filed earlier is a reasonable solution. circumstances of different underlying online account system that will enable and
Therefore, DHS is adopting a flexible immigration benefits. Such decisions on encourage customers to submit benefit requests and
filing policy to permit the filing of a filing procedures are appropriately supporting documents electronically. This Web-
placed in instructional materials rather based system will greatly simplify the process of
renewal EAD application as early as 180 applying for immigration benefits. It will assign
days in advance of the expiration of the than the regulations. Therefore, while new customers a unique account which will enable
applicants current EAD.100 USCIS will DHS disagrees with the commenter that them to access case status information, respond to
permit the 180-day advance filing policy this more specific information should be USCIS requests for additional information, update
included in the regulations, DHS agrees certain personal information, and receive timely
when practicable, taking into account decisions and other communications from USCIS.
workload, resources, filing surges, that locating up-to-date information For more information, see https://www.uscis.gov/
processing times, and specific regarding the availability of concurrent about-us/directorates-and-program-offices/office-
regulatory provisions that mandate filing for particular eligibility categories transformation-coordination.
102 See, e.g., FAQs for employment authorization
specific filing windows. DHS will can be challenging for the public. DHS
for certain H4 Spouses https://www.uscis.gov/

continue to monitor the current filing has determined that, in addition to the working-united-states/temporary-workers/faqs-
conditions of Form I765 applications form instructions proposed in the employment-authorization-certain-h-4-dependent-
and will set the filing time period for NPRM, a convenient and useful location spouses and https://www.uscis.gov/i-539-addresses.
to announce concurrent filing USCIS also posts information on its Web site
renewal EAD applications as regarding concurrent filing for individuals seeking
information is on the USCIS Web site. lawful permanent residence. The Web page can be
100 Current USCIS policy allows early filing up to Accordingly, DHS is revising the found at https://www.uscis.gov/green-card/green-
120 days in advance. regulatory text at 8 CFR 274a.13(a) in card-processes-and-procedures/concurrent-filing.
Web site, DHS can better address such timelines and will accept renewal EAD authorized periods of stay in policy
complicated adjudication processes. applications filed as far in advance as guidance.106
With respect to the Form I765, DHS 180 days from the expiration date of the With respect to the comments
will post on the USCIS Web site a list current EAD. The extent of the advance regarding freedom to travel outside the
of the categories of applicants who may filing window will depend on United States, DHS is not prohibiting
file their Forms I765 concurrently with operational considerations. Affected applicants with pending Forms I765
their underlying eligibility requests. By stakeholders can, and are strongly from traveling. However, DHSs
posting this type of comprehensive encouraged to, reduce any potential longstanding policy is that if an
information on the USCIS Web site, gaps in employment authorization or applicant travels outside of the United
applicants will have up-to-date employment authorization States without a valid visa or other
information on filing procedures. documentation by filing Forms I765 travel document while he or she has a
iv. Potential Gaps in Employment well enough in advance of the pending change of status application,
Authorization expiration dates on their current EADs. DHS considers the applicant to have
Further, DHS is providing automatic abandoned that application.107
Comment. Some commenters stated Moreover, although applicants may
that the elimination of the 90-day 180-day extensions of some EADs to
travel abroad, they must have a valid
processing timeframe may cause renewal applicants within certain
visa or other travel document that
beneficiaries uncertainty and stress, and employment eligibility categories upon
allows them to return to the United
deter some individuals from traveling to the timely filing of applications to
States. An EAD, by itself, does not
their home countries. Commenters also renew their EADs.104 This provision
authorize travel.
expressed concerns about accruing significantly mitigates the risk of gaps in
Finally, with respect to commenters
unlawful presence while waiting for employment authorization and required
concerns that this rule will cause
their EADs, which might affect their documentation for eligible individuals.
employers to refrain from hiring foreign
eligibility for future immigration In addition, the provision will provide
workers or may lay off foreign workers
benefits. Finally, commenters opposed consistency for employers, as the
to avoid potential fines imposed by ICE,
eliminating the 90-day provision by extension period is similar to that which
DHS believes that the steps it has taken
noting that employers may refrain from already is used in other contexts. For to minimize the possibility of gaps in
hiring foreign workers, or even lay off example, DHS typically provides employment authorization will
foreign workers, who do not have a automatic 180-day extensions of EADs satisfactorily allay these concerns.
current EAD in order to avoid the risk to TPS beneficiaries when the Employers that refuse to hire workers
of fines imposed by ICE. registration period does not provide with 180-day extensions, or that
Response. DHS does not believe that sufficient time for TPS beneficiaries to terminate such workers, may be in
eliminating the 90-day EAD processing receive renewal EADs.105 DHS violation of the INAs anti-
timeframe from the regulation will lead regulations also provide certain F1 discrimination provision at section
to the issues raised by commenters, nonimmigrant students seeking 274B, 8 U.S.C. 1324b, which prohibits,
except in rare instances. DHS plans to extensions of STEM Optional Practical inter alia, discrimination based on a
maintain current processing timeframes Training (OPT) with automatic workers citizenship status, immigration
and will continue to post that extensions of their employment status, or national origin, including
information on its Web site.103 authorization for up to 180 days. See 8 discriminatory documentary practices
Consistent with current protocols, CFR 274a.12(b)(6)(iv). with respect to the employment
applicants not covered by the automatic In response to concerns regarding eligibility verification (Form I9 and E-
180-day extension of employment accrual of unlawful presence, DHS Verify) process. Employers that violate
authorization will continue to be able to believes that removal of the 90-day the anti-discrimination provision may
call the National Customer Service adjudication timeline from the be subject to civil penalties, and victims
Center (NCSC) if their application is regulations generally has no effect on of such discrimination may be entitled
pending for 75 days or more to request the application of DHSs longstanding to back pay awards and reinstatement.
priority processing. Applicants covered unlawful presence guidance. A foreign For more information, visit https://
by the 180-day automatic extension will national will not accrue unlawful www.justice.gov/crt/about/osc.
be permitted to contact the NCSC if presence in the United States if he or Comment. One commenter requested
their application is still pending at day she is deemed to be in an authorized that DHS add a regulatory provision
165 of the auto-extension to request period of stay. Neither the mere requiring USCIS to issue a Form I797C
priority processing. For those cases that pendency of a Form I765 application Notice of Action (receipt notice) within
are not fit for adjudication within nor the receipt of an EAD generally a certain timeframe. This commenter
current processing timeframes, DHS determines whether an individual is in stated that such a regulatory provision
does not believe that employment an authorized period of stay for would assist individuals who use Form
authorization should be granted, and purposes of accrual of unlawful I797C to validate continued
EADs issued, before eligibility is presence. DHS has described employment with his or her employer or
determined. circumstances deemed to be for state or federal agencies that rely on
To avoid potential gaps in EADs to grant safety net benefits.
employment authorization resulting 104 Timely filed for purposes of renewal Otherwise, according to the commenter,
from unexpected delays in processing, applicants filing TPS-based EAD applications the value of the automatic EAD
DHS is providing workable solutions in means filed according to the applicable TPS extension will be eviscerated.
this final rule. As mentioned earlier in country-specific Federal Register notice regarding
procedures for obtaining EADs. In very limited
this Supplementary Information, USCIS cases, the filing period described in the Federal 106 See Neufeld May 2009 Memo.
is changing its recommended filing Register notice may extend beyond the EAD 107 See USCIS Memorandum from Thomas Cook,
validity date. Travel after filing a request for a change of
103 See current USCIS processing timeframes at 105 See, e.g., 80 FR 51582 (Aug. 25, 2015) (Notice nonimmigrant status (June 18, 2001), available at
https://egov.uscis.gov/cris/ auto-extending EADs of Haitian TPS beneficiaries https://www.uscis.gov/sites/default/files/files/
processTimesDisplayInit.do. for 6 months). pressrelease/Travpub.pdf.
Response. DHS declines to adopt the request. Such individuals are e.g., 8 CFR 274a.12(b)(6)(iv) (providing
suggestion to impose a regulatory encouraged to contact the National automatic 180-day EAD extensions for
issuance deadline on the Form I797C, Customer Service Center (NCSC) if their F1 nonimmigrant students who timely
Notice of Action (receipt notice). application is pending for 75 days or file requests for STEM OPT extensions).
Issuance of the receipt notice depends more to request priority processing of DHS also typically provides TPS re-
on highly variable operational realities their application. In order to further registrants with automatic EAD
affecting the intake process, and thus ensure against gaps in employment extensions of 180 days.109 Maintaining
cannot be held to a regulatory authorization for renewal applicants, consistency among rules regarding
processing timeframe. Furthermore, DHS also is modifying its 120-day automatic EAD extensions will aid
DHS notes that receipt notices are advance filing policy and will accept employers in complying with Form I9
generally issued in a timely manner, Forms I765 that are filed up to 180 verification requirements, as well as
usually two weeks. days in advance of the EAD expiration other agencies making determinations
date, except where impracticable. With on eligibility for the benefits they
v. Interim EADs
this modification, DHS expects that the oversee (such as those issued by
Comment. Many commenters risk of gaps in employment departments of motor vehicles). DHS
disagreed with the proposed elimination authorization and the possibility of acknowledges the regulatory provision
of the issuance of interim EADs with worker layoffs will be minimal. granting an automatic extension of
validity periods of up to 240 days when Comment. One commenter stated that employment authorization for up to 240
an EAD application is not adjudicated harm would be caused by limiting days, as noted by the commenter, see 8
within the previously discussed 90-day automatic EAD extensions, but CFR 274a.12(b)(20), but that provision
timeframe. These commenters suggested suggested that this harm could be extends to certain classes of
that the lack of an interim EAD may ameliorated by allowing for unlimited nonimmigrants who do not have or
result in an employer laying off a automatic extension of work require an EAD. These classes of
worker if his or her EAD application is authorization upon the timely filing of nonimmigrants are employment
not timely adjudicated. a renewal EAD application until a authorized for a specific employer
Response. DHS anticipated and decision is made on the application. incident to status. Because the
addressed these concerns raised by The commenter alternatively suggested adjudication of a Form I765
commenters by providing for the lengthening the extension period to 240 application is materially different from
automatic extension of EADs of 180 days to coincide with the validity the adjudication of petitions seeking
days for individuals who: (1) File a period of interim EADs and consistent extensions of stay in these
request for renewal of their EAD prior with the extension of employment nonimmigrant classifications, the 240-
to its expiration date or during the filing authorization for certain nonimmigrants day time frame afforded to those
period described in the country-specific pursuant to 8 CFR 274a.12(b)(20). The nonimmigrants is inapposite. DHS
Federal Register notice concerning commenter also suggested extending the believes it is more sensible that the
procedures for obtaining TPS-related 120-day advance filing policy for EADs. period for automatically extending
EADs; (2) request a renewal based on According to the commenter, if the certain EADs based on the timely filing
the same employment authorization automatic extension is limited to 180 of renewal EAD applications should
category under which the expiring EAD days, USCIS should accept filings 240 mirror the existing 180-day period in 8
was granted (as indicated on the face of days in advance of the expiration of the CFR 274a.12(b)(6), as well as DHSs
the EAD), or on an approval for TPS applicants EADs. policy regarding automatic extensions of
even if the expiring EAD was issued Response. DHS declines to adopt the TPS-based EADs.
under 8 CFR 274a.12(c)(19); 108 and (3) commenters suggestions and retains the Moreover, DHS believes that
either continue to be employment proposed automatic extension period of providing an automatic 240-day
authorized incident to status beyond the 180 days in this final rule. Due to fraud extension is unwarranted given that the
expiration of the EAD or are applying concerns, DHS will not provide for an typical Form I765 processing time is 90
for renewal under a category that does unlimited automatic extension until days,110 and DHS will be providing
not first require the adjudication of an USCIS issues a decision on the renewal renewal applicants the opportunity to
underlying benefit request. As discussed application. In addition, without a date file up to 180 days in advance of the
earlier, DHS had determined that 15 certain, employers would have expiration of their EADs. Those Form I
employment categories currently meet difficulties reverifying employment 765 application types that are taking
these conditions. authorization to comply with the more than 90 days to process are often
DHS recognizes the possibility of gaps Employment Eligibility Verification associated with, and dependent upon,
in employment authorization for (Form I9) requirements and would not adjudication another underlying request
renewal applicants who are not have the certainty necessary to maintain such as Temporary Protected Status,
included on the list of employment a stable and authorized workforce. DACA, and H4 status. The current 120-
categories eligible for automatic renewal Regarding the commenters suggestion
day advance filing policy coupled with
of their EADs because they require to provide for a 240-day (rather than a
the 240-day interim EAD validity under
adjudication of an underlying benefit 180-day) automatic extension, DHS
current regulations at 8 CFR 274a.13(d)
determined that 180 days would be
more appropriate. The 180-day period provide a total processing period of 360
108 Under 8 CFR 274a.12(c)(19), an individual
applying for Temporary Protected Status (TPS) should provide USCIS sufficient time to days before an applicant may
must apply for employment authorization; such adjudicate Form I765 applications,
109 See, e.g., 80 FR 51582 (Aug. 25, 2015) (notice

authorization is not automatic or granted incident
to status unless and until the TPS application is
particularly when individuals file well auto-extending EADs of Haitian TPS beneficiaries
granted. EADs are issued as temporary treatment ahead of the expiration of their EADs, as for 6 months).
benefits to pending TPS applicants who are explained further below. In fact, existing 110 USCIS Service Centers report that the majority
considered prima facie eligible for TPS. Such regulations already contain a provision of Form I765 applications are adjudicated within
temporary treatment benefits remain in effect until 3 months. See current USCIS processing timeframes
a final decision has been made on the application
granting an automatic 180-day extension at https://egov.uscis.gov/cris/
for TPS, unless otherwise terminated. See 8 CFR of EADs in certain instances, and that processTimesDisplayInit.do (last accessed October
244.5; 8 CFR 244.10(e). time frame has proven workable. See, 31, 2016).
experience a gap in employment vi. Automatic Extensions of EADs and extension at the same time as their
authorization. Under this rule, the 180- Advance Parole requests for extension of their H4
day advance filing policy and automatic Comment. DHS received a number of status, or (3) receive interim EADs.
180-day employment authorization comments referencing the combination Response. DHS disagrees with
extension similarly would provide a EAD/advance parole cards issued to commenters that H4 nonimmigrant
potential processing period of 360 days. applicants for adjustment of status. spouses eligible to apply for EADs
In addition, DHS expects that a long These comments requested that DHS should receive automatic EAD
automatic extension period of 240 days extensions or interim EADs, and DHS
provide automatic extensions for
without an accompanying, secure EAD thus declines to modify this rule as
advance parole when requests for
would increase the risk of fraud or other suggested by commenters.112 Consistent
advanced parole are filed timely and
misuse of the automatic extension with the commenters requests, an H4
concurrently with requests for EAD
benefit. DHS believes that this rule nonimmigrant spouse eligible for an
extensions.
imposes reasonable limitations on Response. DHS declines to permit EAD already may concurrently file his
or her EAD application with an H4
automatic EAD extensions that protect automatic extensions of advance parole
extension request (on Form I539), even
against both fraud and gaps in in this final rule. Advance parole is a
if the Form I539 is filed with the Form
employment authorization. separate adjudication and is wholly
I129, Petition Nonimmigrant Worker,
Comment. A commenter requested discretionary, determined on a case-by-
that is being filed on his or her spouses
that DHS include an interim EAD for case basis, and, therefore, DHS does not
behalf. However, the Form I765 will
initial applications, for renewal believe that it is appropriate for
not be adjudicated until the underlying
applications in categories not eligible automatic extensions.
benefit requests are adjudicated. See
DHS notes that if a renewal applicant
for automatic extension, and for renewal Instructions to Form I765. As
with a combination EAD/advance parole
applications that remain pending even discussed previously, because the
card has an urgent need to travel outside
after the automatic 180-day extension employment authorization for an H4
the United States while the employment
has expired in order to prevent hardship nonimmigrant spouse is contingent on
authorization renewal application is
that could result when people lack the adjudication of an underlying
pending, the applicant may request
employment authorization. immigration benefit, automatically
expedited adjudication of the
extending EADs to such individuals
Response. DHS declines to adopt the concurrently filed advance parole
significantly increases the risk that
commenters suggestion as it would request under USCISs longstanding
EADs may be extended to ineligible
undermine DHSs fraud, national expedite criteria. If USCIS expedites the individuals.
security, and efficiency goals. DHS has adjudication of the advance parole In the case of an H4 nonimmigrant
determined that the issuance of interim request and grants advance parole, the spouse filing for an extension of stay
EADs does not reflect the operational applicant will receive a separate and renewal of employment
realities of the Department, which are advance parole authorization on Form authorization, DHS cannot be
intended to promote efficiency, reduce I512 (Authorization for Parole of an reasonably assured that the spouse will
fraud, and address threats to national Alien into the United States) and a continue to be eligible for employment
security, such as through the adoption separate EAD following adjudication of authorization until a full adjudication of
of improved processes and the renewal EAD application. If the the Form I765 is conducted. Under
technological advances in document applicant does not receive an expedited DHS regulations, an H4 nonimmigrant
production. Authorizing an interim EAD approval of the advance parole request, spouse is eligible for employment
for initial and renewal EAD applications then the applicant may receive a authorization if either the H1B
whether or not eligible for automatic combination card following nonimmigrant worker has an approved
EAD extensions under this rule would adjudication of both the EAD renewal Form I140 petition or the spouses
be problematic because some applicants application and parole request. current H4 admission or extension of
would receive an immigration benefit vii. H4 Nonimmigrant Spouses stay was approved pursuant to the H
employment authorizationbefore DHS 1B nonimmigrant workers admission or
Comment. Some commenters noted extension of stay based on sections
is assured that the applicant is eligible
that certain H4 nonimmigrant spouses 106(a) and (b) of AC21. See 8 CFR
for that benefit through the adjudication
of H1B nonimmigrant workers can wait 214.2(h)(9)(iv). Thus, before
of the underlying benefit request. DHS
up to 9 months for an EAD (including adjudicating a Form I765 filed by the
anticipates a long adjudication period
time for the visa and EAD extension) H4 nonimmigrant spouse, USCIS must
will be an extremely rare occurrence,
and may thus experience gaps in first make a determination on the
most likely involving an application employment.111 The commenters felt
with serious security concerns, in which principals H1B status, because the
this time period was too long, and they spouse derives his or her status from the
case DHS would not grant employment stated that to avoid potential lapses in
authorization until such concerns are principal. USCIS must then adjudicate
employment authorization such spouses the H4 nonimmigrant spouses
resolved. should be provided the option to: (1) application for an extension of stay.
Moreover, the resources necessary to Obtain an automatic extension of their Only after concluding these
process interim EADs are similar to the EADs, (2) file their applications for EAD adjudications with respect to the H1B
resources necessary to issue EADs of
full duration. Regardless of whether the 111 H4 dependent spouses who may apply for 112 DHS notes that in a separate rulemaking,
EAD is for a full duration or for an employment authorization include certain H4 commenters also requested automatic EAD
dependent spouses of H1B nonimmigrants who: extensions for H4 nonimmigrant spouses who
interim period, the EAD must contain Are the principal beneficiaries of an approved Form have requested renewal EADs. DHS declined to
all of the same security and anti- I140, Immigrant Petition for Alien Worker; or have provide for automatic extensions of employment
counterfeiting features. Maintaining this been granted H1B status under sections 106(a) and authorization for such nonimmigrants, because
(b) of the American Competitiveness in the Twenty- their employment authorization is contingent on
duplicative processing would first Century Act of 2000, as amended by the 21st the adjudication of an underlying benefit request.
significantly hamper USCISs ability to Century Department of Justice Appropriations See 80 FR 10284, 10299. This rationale equally
maintain reasonable processing times. Authorization Act. See 8 CFR 214.2(h)(9)(iv). applies to this rule.
nonimmigrant worker and the H4 flexibility in the event of unexpected security and fraud prevention goals, as
nonimmigrant spouse, can USCIS delays. See 8 CFR 274a.12(b)(6)(iv). described above. DHS is limiting
adjudicate the spouses application for a The NPRM did not include a proposal availability of automatic EAD
renewal EAD. regarding additional security checks for extensions in a manner that reasonably
Allowing eligible H4 nonimmigrant F1 nonimmigrant students. Therefore, ensures that the renewal applicant is
spouses to file Form I765 concurrently such changes would be outside the eligible for employment authorization,
with their Form I539 extension scope of this rulemaking. However, DHS thereby minimizing the risk that
applications (and, if needed, also with notes that foreign nationals who apply ineligible individuals will receive
the Form I129 filed on behalf of the H for F1 nonimmigrant visas undergo immigration benefits.
1B principal) enables the receipt of security checks before visa issuance. In addition, DHS disagrees with the
employment authorization soon after Additionally, USCIS conducts security commenters assertion that the J2
the underlying immigration benefit checks on all F1 nonimmigrant nonimmigrant category comports with
requests are adjudicated, thereby students on OPT before rendering a final the conditions stated in the NPRM and
significantly reducing the overall decision on their Forms I765. DHS may adopted in this final rule for automatic
adjudication timeline for these H4 consider requiring additional security EAD extensions. DHS is limiting
nonimmigrant spouses. To further checks for F1 nonimmigrant students automatic extensions to those renewal
ensure against gaps in employment in future rulemakings. applicants who, among other criteria,
authorization for H4 nonimmigrant ix. Expanding Automatic Extensions to either continue to be employment
spouses and others, except when Additional Categories authorized incident to status beyond the
impracticable, DHS will be permitting expiration of their EADs or are applying
EAD renewal applicants to file Forms I Comment. One commenter requested
that DHS provide automatic 180-day for renewal under a category that does
765 up to 180 days prior to the not first require the adjudication of an
extensions on all timely-filed, non-
expiration of their current EADs. underlying benefit request. J2
frivolous EAD extension applications, or
viii. F1 Nonimmigrant Students in the alternative, that DHS provide nonimmigrants do not fit within the
automatic extensions to individuals in regulatory criteria because they must
Comment. A few commenters first receive approvals of their
requested a 90-day processing J2 nonimmigrant status. The
commenter reasoned that including J2 underlying requests for extension of J
timeframe for F1 nonimmigrant 2 nonimmigrant stay before they are
students, because Forms I765 based on status in the list of employment
authorization categories that allow for eligible for employment authorization.
optional practical training (OPT) do not The same is true with respect to the
require the submission of biometrics automatic extension comports with the
proposed rationale for such extensions suggestion to expand the automatic
through an Application Support Center extension provision to L2, F1 OPT,
since adjudication of an underlying
(ASC). Additionally, a commenter stated and H4 nonimmigrants. Renewal of
benefit request is not needed. Another
that eliminating the 90-day EAD employment authorization for such
commenter urged DHS to grant
processing timeframe makes it difficult nonimmigrants is dependent on the
automatic EAD extensions to L2, F1
for F1 nonimmigrant students to secure prior adjudication of underlying benefit
OPT, and H4 nonimmigrants, in order
employment because OPT is only requests. DHS cannot be reasonably
to provide an incentive for employers to
authorized for 12 months. A few assured these classes of individuals will
retain valued employees. More
commenters questioned security checks remain eligible for employment
generally, some commenters
or suggested that DHS implement new authorization until full adjudication of
recommended that DHS automatically
requirements for F1 nonimmigrant the Form I765 application is complete.
extend employment authorization for all
students. work-authorized applicants, including L2 nonimmigrants, for example,
Response. DHS declines to retain the H4 and L2 nonimmigrants and include both spouses and dependent
current regulatory 90-day processing categories of applicants seeking children of L1 nonimmigrants.
requirement for Form I765 filings by employment-authorization based on However, only L2 nonimmigrant
F1 nonimmigrant students. DHS humanitarian circumstances, regardless spouses are eligible for employment
remains committed to current of their current basis for work authorization. USCIS must adjudicate
processing timeframes for all Form I authorization, in order to prevent gaps the Form I765 application to determine
765 applicants, including F1 in employment. the applicants valid L2 nonimmigrant
nonimmigrant students. When making Response. DHS declines to provide status, the L1 principals current
plans to secure pre-completion or post- automatic EAD extensions (and nonimmigrant status, and evidence of
completion OPT, F1 nonimmigrant employment authorization, if the marital relationship. For F1 OPT
students should consider the advance applicable) to eligibility categories nonimmigrants, USCIS must determine
filing periods described in the beyond those listed in the whether the F1 nonimmigrant student
regulations at 8 CFR 214.2(f)(11)(i)(B) Supplementary Information to the has obtained a Form I20 AB/I20ID,
and factor in Form I765 processing NPRM at this time. However, DHS may Certificate of Eligibility of
times, which can be found on the USCIS announce in the future additional Nonimmigrant F1 Student Status,
Web site.113 Additionally, F1 categories of individuals eligible for endorsed by his or her Designated
nonimmigrant students who timely such automatic extensions on the USCIS School Official within the past 30 days.
apply for STEM OPT extensions are Web site. See final 8 CFR If the applicant is an F1 nonimmigrant
provided with automatic extensions of 274a.13(d)(1)(iii). While granting student seeking STEM OPT, USCIS
their employment authorization for up automatic EAD extensions to the must examine the students degree and
to 180 days, which provides sufficient additional nonimmigrant categories determine whether the students
suggested by commenters may employer is an E-Verify employer,
113 See https://egov.uscis.gov/cris/
encourage employers to retain among other requirements. If the
processTimesDisplayInit.do for service center
processing times. At present, Forms I765 filed by
employees and minimize the risk of applicant is an F1 nonimmigrant
F1 nonimmigrants pursuant to 8 CFR 274a.12(c)(3) gaps in employment, such an expansion student seeking off-campus employment
are processed in 3 months. would undermine DHSs national under the sponsorship of a qualifying
international organization, USCIS must requirements are outside the scope of pending for 90 days, given that USCIS
review the international organizations this rulemaking. routinely issues temporary Form I551
letter of certification along with the stamps in foreign passports upon
xi. Form I9 and Automatic Extensions
timely endorsed Form I20.114 DHS has presentation of a Form I90 fee receipt.
of EADs
similarly addressed this issue with Commenters faulted DHS for describing
respect to H4 nonimmigrants Comment. One commenter suggested operational realities as a compelling
elsewhere in this Supplementary updating the instructions for Form I9 reason to eliminate the interim EAD
Information. DHS does not agree that and the M274 Handbook (Handbook option, especially in light of a number
the list of categories eligible for for Employers: Guidance for Completing of non-secure forms currently being
automatic EAD extensions should be Form I9 (Employment Eligibility submitted in some circumstances.
Verification Form)) to include automatic Commenters suggested that the Form I
expanded to include these additional
extensions of EADs. This commenter 797C receipt could be designated an
categories at this time.
also asked that DHS place stickers on acceptable employment authorization
x. State Drivers License Issues EAD cards during biometrics document under current 8 CFR
appointments to indicate automatic 274a.13(d), given that USCIS has been
Comment. Several commenters noted extensions, which would serve as willing to issue a number of non-secure
that they cannot obtain or renew a evidence of ongoing employment forms of employment authorization to
drivers license without a valid visa or authorization and maintenance of some applicants.
EAD, and if this rule results in longer status, and thus reduce confusion Response. To support the
waits for EADs, it would delay their during the I9 process. Departments vital mission of securing
ability to obtain a drivers license, Response. DHS has determined that it the nation from the many threats it
thereby interrupting their daily routines. is not necessary to amend the Form I faces, DHS has determined that the
One commenter recommended granting 9 instructions to include information elimination of both the 90-day EAD
EADs for longer periods in order to regarding automatic extensions of EADs processing timeframe and the issuance
closely align with state driver license because this rule does not change the of interim EADs from current
renewal periods. An individual list of acceptable documents for Form I regulations is necessary. This change at
commenter suggested that DHS notify 9 purposes. In addition, DHS believes final 8 CFR 274a.13(d) reflects DHSs
all state departments of motor vehicles that such detailed information regarding continued attention to security and
(DMVs) so that the DMVs can update the automatic extension of EADs is commitment to improving adjudication
their current license issuance policies to better placed in guidance materials. processes, including technological
account for automatic extensions of DHS will update all relevant public advances in document production, to
EADs. This commenter also asked DHS guidance materials on I9 Central 116 reduce fraud and address threats to
to provide a list of documentary concurrently with the publication of national security.
evidence that can be presented to DMV this final rule. DHS also intends to The main security and fraud risks
officials to establish that a renewal EAD include information regarding the underpinning DHSs decision to remove
application was timely filed and that automatic extension of EADs along with the 90-day EAD adjudication timeline
employment authorization was other comprehensive revisions to the and interim EAD requirements flow
M274 Handbook for Employers that are from granting interim EADs to
automatically extended.
currently underway. individuals before DHS is sufficiently
Response. DHS remains committed to DHS declines to place stickers on assured of their eligibility and before
current processing timeframes and EADs at biometrics appointments for background and security checks have
expects to adjudicate Form I765 several reasons. Most EAD renewal been completed. DHS believes that any
applications within 90 days. Regarding applicants are not requested to appear reduction in the level of eligibility and
the commenters request for for biometrics appointments. In security vetting before issuing evidence
documentary evidence, DHS generally addition, DHS has determined that of employment authorization, whether
issues applicants a Notice of Action considering the wide variety of affected on an interim basis or otherwise, would
(Form I797C) within two weeks of categories and the number of potential both be contrary to its core mission and
filing a renewal EAD application. An extensions involved, providing undermine the security, quality, and
individual may choose to present the extension stickers poses security integrity of the documents issued.
Form I797C to a DMV, depending on concerns and is not economical or In addition, the 90-day timeline and
state DMV rules, in combination with operationally feasible. interim EAD requirements would
his or her expired EAD that has been hamper DHSs ability to implement
xii. National Security and Fraud effective security improvements in cases
automatically extended pursuant to this Concerns
rule.115 The combination of the in which those improvements could
qualifying Form I797C and expired Comment. Some commenters extend adjudications in certain cases
EAD is the equivalent of an unexpired criticized DHSs national security beyond 90 days. Given the inherent
EAD for purposes of this rule. See final concerns and fraud prevention fraud and national security concerns
8 CFR 274a.13(d)(4). USCIS will provide rationales as insufficient to support an that flow from granting immigration
guidance to stakeholders, including elimination of the regulatory 90-day benefits (including EADs) to individuals
DMVs, on its Web site to help clarify the EAD processing timeframe, especially as prior to determining eligibility, DHS
provisions regarding automatically DHS had not provided any data related believes that the 90-day timeframe and
to fraud or abuse in the program. These interim EAD provisions at current 8 CFR
extended EADs as established by this

rule. However, comments related to commenters further stated that DHSs 274a.13(d) do not provide sufficient
individual state drivers license security rationale did not explain why flexibility for DHS to enforce and
issuance of an interim EAD could not be administer the immigration laws while
114 See8 CFR 214.2(f)(9)(11).
based on a USCIS-issued fee receipt enhancing homeland security.
115 Depending on filing volume, USCIS may take showing that Form I765 had been Moreover, retaining the interim EAD
longer than 2 weeks to issue Notices of Action provision would continue to
(Forms I797C). 116 See https://www.uscis.gov/i-9-central. fundamentally undermine overall
operational efficiencies to the detriment insecure documents to evidence continue to be employment authorized
of all applicants for employment employment authorization in this rule incident to status beyond the expiration
authorization. In keeping with DHS would be a step backwards from DHSs that is annotated on the face of their
secure document issuance policies, goals in this area. EADs or who are seeking to renew
implementation of the interim EAD The instances in which DHS issues employment authorization in a category
provision calls for DHS to issue tamper- temporary documentation concern in which eligibility for such renewal is
resistant Form I766 EADs.117 Issuance lawful permanent residents and, not dependent on a USCIS adjudication
of interim Forms I766 requires the therefore, are distinguishable.119 First, of an underlying benefit request. See 8
same resources as the issuance of full- temporary documentation is only issued final CFR 274a.13(d)(1)(iii). This
duration Forms I766, because both to lawful permanent residents after they provision helps to ensure that
cards must be produced using the same are admitted in that immigration status. individuals are eligible to receive
operational processes at the same Second, USCIS verifies an individuals automatic extensions of their EADs
secure, centralized card production identity and status before issuing under this rule only if there is
facility. Elimination of this costly and temporary evidence of lawful reasonable assurance of their continued
duplicative process is necessary to permanent resident status. Such eligibility for issuance of a full duration
better ensure that sufficient resources verification may include inputting EAD.
are dedicated to adjudicating requests fingerprint and photograph information
xiii. Separate Rulemaking for the
for employment authorization, rather into the Customer Profile Management
Elimination of the EAD 90-Day
than being diverted to monitoring the System-IDENTity Verification Tool
Processing Timeframe
90-day adjudication timelines and (CPMSIVT).120
producing both interim EADs and full- While DHS strongly believes that it is Comment. Some commenters stated
duration EADs. In so doing, DHS necessary to eliminate the 90-day that the proposal to eliminate the 90-day
believes that the EAD adjudication adjudication timeline and the rule must be promulgated through a
process will be more efficient and EAD requirement to issue interim EADs, the separate rulemaking so that the public
processing timelines will decrease Department understands the need for has proper notice and opportunity to
overall. temporary employment authorization in comment. These commenters suggested
DHS rejects commenters suggestions cases involving application processing that DHS intentionally buried the
to designate alternate interim delays. For this reason, this rule elimination of this provision at the end
documents that do not evidence authorizes automatic extensions of of a lengthy NPRM that in most other
employment authorization or contain employment authorization, but only for respects seeks to ease the burdens on
sufficient security features, such as the defined classes of individuals. First, the employment of qualified
Form I797C receipt notice, in lieu of DHS is limiting the automatic extension nonimmigrant and immigrant workers.
EADs. For decades, Congress, legacy of EADs (and employment According to commenters, some
INS, and DHS have been concerned authorization, if applicable) to certain businesses and individuals may not
about the prevalence of fraudulent renewal applicants, rather than initial realize that this rule contains a
documents that could be presented to filers. As previously mentioned, this provision that will adversely affect
employers to obtain unauthorized limitation meets DHSs policy to issue them.
employment in the United States. To EADs to only those individuals who Response. DHS disagrees that the
address these concerns, Congress passed have been determined eligible. Second, elimination of the 90-day processing
the Illegal Immigration Reform and to further protect the integrity of the timeframe for EADs merits or requires
Immigrant Responsibility Act of 1996 immigration process, DHS is requiring its own rulemaking. The public was
(IIRIRA), Pub. L. 104208, which that renewal applications be based on given proper notice of the proposed
strengthened the requirements for the same employment authorization policy in this rulemaking, and the
secure documentation used in the category as that indicated on the proposal was fully described in the
employment eligibility verification expiring EAD, with the narrow Summary paragraph at the beginning of
process.118 Legacy INS, for its part, also exception of TPS beneficiaries, as the NPRM. The thousands of
took steps to reduce the number of described earlier. See final 8 CFR commenters that submitted feedback on
insecure documents in circulation. For 274a.13(d)(1)(ii). Because the resulting this specific issue is evidence that the
example, as described in the NPRM, Form I797C indicates the employment public had an opportunity to comment,
legacy INS created the new, counterfeit- authorization category cited in the and in fact did comment, on this issue.
resistant Form I766, which is produced application, this requirement helps to xiv. Requests for Premium Processing
at a centralized secure location, to ensure, both to DHS and to employers
replace the significantly less secure Comment. Several commenters asked
that such a notice was issued in
Form I688B, which was produced at USCIS to offer premium processing for
response to a timely filed renewal
local offices and was easily Forms I765, with some individuals
application. Third, automatic extensions
counterfeited. In addition, legacy INS asking the fee to be set at a reasonable
are restricted to individuals who
and DHS have sought to eliminate the level. One commenter also requested
issuance of ad hoc or otherwise insecure 119 Generally, a temporary Form I551
that premium processing be available
documents that could be used by (Permanent Resident Card) consists of either a Form for travel document requests.
individuals as temporary evidence of I551 stamp in the lawful permanent residents Response. In order to balance
employment authorization. To foreign passport or a Form I551 stamp on Form I workloads and resources in a way that
94 that also contains the lawful permanent ensures timely customer service across
reintroduce the issuance of ad hoc or
residents photograph.
120 CPMSIVT is a Web-based application that all product lines, DHS will not offer
117 See USCIS Memorandum from Michael
processes, displays and retrieves biometric and premium processing of Form I765
Aytes,Elimination of Form I688B, Employment biographic data from DHSs fingerprint identity applications or travel document
Authorization Card (Aug. 18, 2006). system, the Automated Biometric Identification requests at this time. DHS declines to
118 See Conference Report on H.R. 2202, Illegal System (IDENT). For more information, visit
Immigration Reform and Immigrant Responsibility USCISs Web site at https://www.uscis.gov/news/
adopt this suggestion, but may
Act of 1996, 142 Cong. Rec. H1107102 (Sept. 25, alerts/uscis-implement-customer-identity- reconsider it in the future if resources
1996). verification-field-offices. permit.
O. Employment Authorization and extension provisions discussed above. information regarding automatic
Reverification on Form I9 See final 8 CFR 274a.2(b)(1)(vii). extensions of EADs in the proposed
rule, DHS is unable to add this
1. Description of Final Rule and 2. Public Comments and Responses
information to the form instructions in
Changes From NPRM i. Reverification the final rule. DHS may consider such
Employers are required to verify the Comment. Several commenters an addition in a future revision of the
identity and employment authorization expressed a concern that the proposed Form I9 instructions under the PRA
of all individuals they hire for automatic extension of EADs will process.
employment on Form I9. For those confuse the Form I9 reverification ii. Use of Form I9 To Change
individuals whose employment process because employers will have no Employment Authorization Categories
authorization or EADs expire, way to know, without the help of
immigration attorneys, if a renewal Comment. Several commenters
employers must reverify employment suggested that DHS allow foreign
authorization at the time of expiration. application was filed under the same
category as the individuals current workers in H nonimmigrant status who
DHS is finalizing the changes related to are eligible for employment
the Form I9 verification process as EAD, and thus no way to know if the
automatic extension applies. A authorization based on compelling
proposed, with the exception of minor, circumstances to change status by
technical revisions, in order to conform commenter also suggested updating the
Form I9 instructions and M274 filling out Form I9 and using the EAD
to the new automatic employment issued based on compelling
authorization provision established by Handbook for Employers to reflect the
automatic extensions of EADs. circumstances as evidence of
this rule.121 See final 8 CFR employment authorization.
Response. DHS believes that the
274a.2(b)(1)(vii). In addition, this rule Response. DHS was unable to discern
reverification process is fairly
finalizes the proposal providing that a straightforward and can be completed the commenters specific concerns.
facially expired EAD is considered without the assistance of an attorney. However, DHS believes that the
unexpired for Form I9 purposes if it is Employers will know whether an EAD discussion below will alleviate any
used in combination with a Notice of has been automatically extended under confusion about the Form I9 process in
Action (Form I797C, or successor form) this rule by checking whether the these circumstances. Employers are
indicating the timely filing of the eligibility category stated on the responsible for proper completion and
application to renew the EAD (provided individuals current EAD is the same as retention of Form I9. See INA 274A(b),
the Form I797C lists the same the eligibility category stated on the 8 U.S.C. 1324a(b). DHS does not use the
employment authorization category as individuals Form I797C receipt Form I9 process as a vehicle for
that listed on the expiring or expired notice,123 and whether the EAD renewal workers to change their immigration
EAD, except in the case of TPS category is listed on the USCIS Web site status. Requests for EADs must be made
beneficiaries, and has been as a qualifying category for automatic on a separate form, currently the
automatically extended under this rule). EAD extensions. The Notice of Action Application for Employment
See final 8 CFR 274a.13(d)(4). Newly receipt (Form I797C) that USCIS issues Authorization, Form I765. The Form I
hired employees completing Forms I9 to an applicant who files a Form I765 9 of an individual employed as an H
may choose to present their employers application contains the EAD eligibility 1B nonimmigrant who also receives an
with this document combination to category. The EAD currently in the EAD while maintaining H1B
show both identity and employment employees possession, combined with a nonimmigrant status does not need to be
authorization.122 When the expiration receipt notice for a timely filed EAD updated merely based upon the
date on the face of an EAD previously application under the same eligibility individuals receipt of the EAD. If an H
used for the Form I9 is reached, a category, is evidence of employment 1B nonimmigrant worker who also has
renewal applicant whose EAD has been authorization for Form I9 purposes. been issued an EAD based on
automatically extended under this rule DHS is taking additional steps to compelling circumstances obtains
and who is continuing in his or her minimize potential confusion among employment with a non-H1B
employment with the same employer employers. DHS will engage in public employer, then the individual may
should, along with the employer, update outreach in connection with this rule. present his or her EAD to the non-H1B
the previously completed Form I9 to USCIS will update the Form I797C employer to comply with the Form I9
reflect the extended expiration date receipt notices to include information requirements, rather than presenting
based on the automatic extension while about automatic extensions of evidence based on the H1B
the renewal is pending. The need for employment authorization based on nonimmigrant status.
reverification of employment renewal applications and to direct iii. Comments Suggesting Additional
authorization is not triggered until the applicants to the USCIS Web site for Revisions
expiration of the additional period of more information about qualifying
validity granted through the automatic Comment. A commenter suggested
employment categories. USCIS will also
that DHS amend 8 CFR 274a.12(a) and
update the I9 Central Web page on its
Form I9 to confirm that foreign
121 The technical changes include changing the Web site to provide guidance to
cross reference in the regulatory text from nationals authorized for employment
employers regarding automatically
274a.13(d) to 8 CFR 274a.13(d) in two places, incident to status do not need to obtain
extended EADs and proper completion
and moving the parenthesis so that the reference to an EAD. The commenter argued that the
the Notice of Action form number reads, (Form I of Form I9. DHS intends to include this
requirement in this regulatory provision
797). In addition, this rule replaces alien with information in a future revision to the
individual in keeping with the terminology of the to obtain an EAD effectively nullifies
M274 Handbook for Employers.
paragraph. the portion of the provision that
Because DHS did not propose changes
122 An automatically extended EAD in provides for employment authorization
combination with the Notice of Action, Form I to the Form I9 instructions to add
incident to status. The commenter noted
797C, described in this rule constitute an unexpired
EAD (Form I766) under List A for Form I9 123 This rule provides an exception for a TPS that the suggested clarification would be
purposes. See revised 8 CFR 274a.13(d)(4); 8 CFR beneficiary whose EAD may not match the even more important if the 90-day
274a.2(b)(1)(v)(A)(4). eligibility category on the receipt notice. adjudication rule is eliminated.
Response. The suggested amendments its own, does not establish employment Response. DHS welcomed comments
to both 8 CFR 274a.12(a) and Form I authorization except when the filing from all interested parties without
9 are beyond the scope of this was to replace a lost, stolen, or damaged regard to citizenship or nationality. This
rulemaking. Contrary to the EAD.124 It is merely evidence that an approach is consistent with the
commenters statement, the part of 8 application was filed with USCIS and, statutory requirements established by
CFR 274a.12(a) that requires affected therefore, would not be sufficient to Congress in the APAs notice-and-
individuals to obtain an EAD does not satisfy the Form I9 requirements. For comment provision, which do not
nullify such individuals employment the reasons stated in the proposed rule, include a citizenship or nationality
authorization incident to status. Rather, extending employment authorization to requirement and place priority on
the provision lists certain categories of categories in which DHS lacks allowing all interested persons to
foreign nationals whose employment reasonable assurance of continued participate in rulemaking proceedings.
authorization must be evidenced by an eligibility for employment authorization 2. Assertions That the Employment-
EAD. Workers within the listed raises fraud and national security risks Based Immigration System Enables
categories are employment authorized that DHS is striving to avoid. Regarding Slavery and Servitude to Employers
incident to status independent of their the suggestion by the commenter to
receipt of an EAD or other evidence of require employers to check the case Comment. DHS received numerous
employment authorization. status of an employees Form I765 comments referencing the alleged
Comment. A commenter application, DHS believes that such a slavery, servitude, or bondage of
recommended updating the M274 requirement raises privacy concerns and nonimmigrant workers in the United
Handbook for Employers to permit Form would introduce changes to the States. A number of commenters stated
I9 verification of H1B nonimmigrant verification process that are beyond the that the nonimmigrant visa and
workers whose Form I129 petition scope of this rulemaking. adjustment processes are tantamount to
seeking an extension of status or change modern slavery or bonded labor, and
of employer was filed during the 10-day P. Other Comments that employers exploit and abuse
or 60-day grace periods. DHS received a number of comments workers subject to these processes.
Response. The current M274 Other commenters stated that employers
related to matters falling outside the
Handbook for Employers contains do not allow nonimmigrant workers to
topics discussed above. These
information regarding Form I9 have a say in working conditions, leave,
comments are addressed below.
completion for H1B nonimmigrant and other benefits.
workers who extend their stay with the 1. Procedural Aspects of the Rulemaking Response. DHS takes allegations of
same employer or who seek a change of worker slavery, bondage, and
Comment. Some commenters exploitation very seriously. There are
employers. See M274, Handbook for
submitted feedback about general statutes and regulations governing the
Employers, page 22. This guidance
immigration issues. A few commenters terms and conditions of nonimmigrant
applies to those H1B nonimmigrant
expressed support for, or opposition to, employment that are intended for the
workers whose petitions are filed during
general immigration to the United protection of both U.S. and
the 10-day or 60-day grace periods.
While this rule does not change that States. Comments ranged from nonimmigrant workers. Commenters
guidance, DHS will consider whether requesting that DHS discontinue and nonimmigrant workers who believe
additional clarifications are necessary to immigration to the United States, to they are being exploited by employers
the M274 Handbook for Employers and underscoring the need for have a number of options to report
other guidance materials, such as comprehensive immigration reform, to misconduct. Those suffering abuse or
USCISs I9 Central Web page. general support for immigration. exploitation are encouraged to
Comment. A commenter suggested, as Response. DHS is charged with immediately contact their local police
an alternative to eliminating the administering the immigration laws department. DHS has created the Blue
regulatory provisions establishing the enacted by Congress. Only Congress can Campaign to combat human trafficking
90-day processing timeframe and the change those laws. The comments and aid victims. More information about
issuance of interim EADs, that the described immediately above are the Blue Campaign can be found at
regulation instead be amended for Form therefore outside the scope of this www.dhs.gov/blue-campaign. Federal
I9 purposes to require foreign workers rulemaking. DHS, however, is law also prohibits discrimination based
to present to their employers List B committed to strengthening the security on citizenship status, immigration
identification documentation along with and integrity of the immigration system status, national origin, and other
a Form I797C receipt notice issued by through efficient and consistent protected characteristics. The
USCIS to acknowledge the filing of a adjudications of benefits, fraud Department of Justices Office of Special
Form I765 application. In the detection, and enhanced customer Counsel for Immigration-Related Unfair
alternative, the commenter suggested service. DHS promotes flexible and Employment Practices enforces the anti-
that USCIS amend the Form I9 sound immigration policies and discrimination provision of the INA,
instructions to require employers to programs as well as immigrant which prohibits discrimination in
confirm the pendency of the Form I765 participation in American civic culture. hiring, firing, recruitment and referral
application by checking the USCIS Web Comment. Several commenters for a fee, as well as discriminatory
site for case status information and objected to the ability of non-U.S. documentary practices in the
annotating the Form I9 accordingly. citizens to submit comments on the employment eligibility verification
Response. DHS declines to adopt the proposed rule. (Form I9 and E-Verify), based on
commenters suggestions. The Form I9 citizenship, immigration status, or

process mandates that employees 124 8 CFR 274a.2(b)(1)(vi)(A) provides that when national origin. See INA section 274B; 8
present their employers with evidence a worker shows a Form I797C receipt for the filing U.S.C. 1324b. More information about
of current employment authorization of a Form I765 application to replace a lost, stolen, reporting an immigration-related unfair
or damaged EAD, this type of Form I797C is
and identity. See 8 CFR 274a.2(b)(1)(v). considered a receipt for a Form I9 List A document
employment practice may be found at
A Form I797C receipt for the filing of evidencing identity and employment authorization www.justice.gov/crt/office-special-
a Form I765 application, standing on valid for 90 days. counsel-immigration-related-unfair-
employment-practices. The U.S. Equal authorization. See final 8 CFR rule includes many provisions, as
Employment Opportunity Commission 204.5(p)(1). Such compelling discussed more fully throughout the
(EEOC) enforces Title VII of the Civil circumstances may, depending on the preamble, that will facilitate workers
Rights Act of 1964 (Title VII), as circumstances, include employer ability to change jobs while waiting for
amended, and other federal laws that retaliation. immigrant visa availability, including
prohibit employment discrimination Comment. Commenters also stated the following: Expanded priority date
based on race, color, national origin, that employers are effectively in control retention, changes to the automatic
religion, sex, age, disability and genetic of the lives of nonimmigrant workers. revocation process, clarification on INA
information. More information about These commenters stated that if a 204(j) portability, and the discretionary
Title VII and the EEOC may be found at nonimmigrant worker is fired or laid off provision authorizing independent work
www.eeoc.gov. DHS also notes that by an employer, that worker is then authorization to beneficiaries who
DOLs Wage and Hour Division faced with having to quickly find new demonstrate compelling circumstances.
investigates allegations of employee employment or to return to his or her See final 8 CFR 204.5(e)(1), (2) and (p);
abuse. Information about reporting a home country. According to and 205.1(a)(3)(iii)(C) and (D).
potential wage and hour violation can commenters, this dynamic has created a Additionally, individuals with
be found at www.dol.gov or by calling sense of dependency on the employer, approved Form I140 petitions who are
18664USWAGE (18664879243). and the resulting uncertainty causes in H1B nonimmigrant status may
In addition, this rule enhances worker many nonimmigrant workers to be benefit from the H1B portability
whistleblower protection by conforming unwilling to purchase homes and make provisions at final 8 CFR
regulations governing the H1B program other long-term life investments in the 214.2(h)(2)(i)(H).
to certain policies and practices United States.
developed to implement the ACWIA Response. DHS is sympathetic to 3. Limits on Employment-Based
amendments to the INA. See final 8 CFR these comments. Through this final rule, Immigration by Country
214.2(h)(20). Section 413 of ACWIA DHS seeks to enhance worker mobility Comment. Several commenters
amended the INA by adding section and ease the burdens nonimmigrant suggested that the per-country limits on
212(n)(2)(C), which makes it a violation workers face when employment ends, available immigrant visas
for an H1B employer to retaliate either voluntarily or as a result of being disproportionately discriminate against
against an employee for providing laid off or terminated. DHS makes a individuals from India, China, the
information to the employer or any grace period available to certain high- Philippines, and Mexico. Some
other person, or for cooperating in an skilled nonimmigrant classifications (H commenters stated that the system
investigation, with respect to an 1B, H1B1, O1, E1, E2, E3, L1, should be changed so that the number
employers violation of its LCA and TN classifications) whose work of available immigrant visas would be
attestations. See INA 212(n)(2)(C)(iv), 8 ceases for up to 60 consecutive days proportionate to the percentage of
U.S.C. 1182(n)(2)(C)(iv). Thus, during each period of petition validity individuals from India and China
employers may not intimidate, threaten, (or other authorized validity period). working as professionals in the United
restrain, coerce, blacklist, discharge, or See final 8 CFR 214.1(l)(2). The final States on H1B visas. Commenters
in any other manner discriminate rule also extends grace periods to noted that the per-country limits fail to
against an employee for disclosing dependents of eligible principal account for high population countries
information that the employee nonimmigrant workers. Id. The purpose with larger numbers of well-educated
reasonably believes evidences a of the 60-day grace period is to enable and high-skilled professionals given that
violation of any rule or regulation the nonimmigrant workers to seek new smaller countries have the same
pertaining to the statutory LCA nonimmigrant employment and thus be percentage of visas available to them.
attestation requirements, or for able to extend or change their One commenter suggested that the per-
cooperating or attempting to cooperate nonimmigrant status while remaining in country limits are not compatible with
in an investigation or proceeding the United States, should their the equitable concept of responding to
pertaining to the employers LCA employment conclude during the applicants on a first-come, first-served
compliance. Id. relevant validity period. basis. Several commenters suggested
Section 212(n)(2)(C) of the INA also Comment. Some commenters that DHS increase the number of
requires DHS to establish a process explained that it is difficult for workers available immigrant visas or remove the
under which an H1B nonimmigrant who have already received an approved per-country limits completely, both to
worker who files a complaint with DOL Form I140 petition with one employer speed up processing times and to lessen
regarding such illegal retaliation, and is to find a new employer who is willing the adverse impact on Indian and
otherwise eligible to remain and work in to restart the immigrant visa petition Chinese nationals. Another commenter
the United States, may be allowed to process. Because of visa backlogs and stated that the per-country limits are
seek other appropriate employment in country quotas, many nonimmigrants illogical, unfair and unpredictable,
the United States for a period not to must wait years before they are eligible causing individuals from India and
exceed the maximum period of stay to adjust status to lawful permanent China to suffer unfairly. One commenter
authorized for such nonimmigrant residence, and some commenters argued stated that merit should be the metric
classification. See INA 212(n)(2)(C)(v), that the difficulty of the process has led for retaining high-skilled workers, not
8 U.S.C. 1182(n)(2)(C)(v). This final rule workers to remain in the same job for country of birth.
formalizes DHSs current policy years without promotions or salary Response. DHS understands the
regarding these protections, as described increases. Commenters stated that the frustration expressed by commenters
above. See final 8 CFR 214.2(h)(20). inability of nonimmigrant workers to who have begun the process to obtain
Through this final rule, DHS also accept promotions and to advance their lawful permanent residence, but who
provides flexibility to certain careers has created a sense of are subject to long waits before their
nonimmigrants with approved Form I hopelessness and a lack of motivation to priority date becomes current as a result
140 petitions who face compelling grow skills. of the per-country visa limits applicable
circumstances that warrant an Response. DHS is sympathetic to to their country of birth. However, DHS
independent grant of employment these comments and believes that this is unable to make immigrant visas
available without regard to an already able to take advantage of a faster commenters expressed concern as to
individuals country of birth as these are path to an immigrant visa because they whether the economic analysis adhered
statutory requirements under the INA. are exempt from the labor certification to the intent and principles of Executive
See generally INA 202, 8 U.S.C. 1152. In process administered by DOL and may Orders 12866 and 13563. Another
particular, INA 202(a)(2), requires that, directly petition DHS for an immigrant commenter believed that the economic
in any fiscal year, individuals born in visa. See INA 203(b)(2)(B), 8 U.S.C. analysis was biased against U.S. workers
any given country generally may be 1153(b)(2)(B). However, DHS notes that in favor of foreign workers.
allocated no more than seven percent of by enacting INA 203(b)(1) and (b)(2), 8 Response. DHS appreciates the
the total number of immigrant visas. U.S.C. 1153(b)(1) and (b)(2), Congress comments received concerning the cost-
Thus, only Congress can change the per- statutorily defined first- and second- benefit economic analysis in the RIA.
country limitations in this statutory preference (EB1 and EB2) categories However, DHS does not agree that the
provision. DHS notes that this for employment-based immigration, and economic analysis is invalid or fails to
Administration supported lifting the specified that only those in the EB2 comply with Executive Orders 12866
per-country cap as a part of category are eligible for a national and 13563, or that the analysis is biased
commonsense immigration reform interest waiver and that they too are against U.S. workers in favor of foreign
legislation that has considered and subject to their respective countrys workers. DHS developed the RIA
passed the U.S. Senate in 2013. annual visa allocation for that supporting this rule in compliance with
4. Guidance on National Interest preference category. Additionally, these Executive Orders to assess and
Waivers Congress specifically provided that quantify, to the extent possible, the
certain physicians working in shortage costs and benefits of this rule as well as
Comment. Some commenters stated areas or veterans facilities may be the number of individuals that could be
that individuals applying for national eligible for NIWs. See INA affected by the provisions of the rule.
interest waivers (NIWs) under the 203(b)(2)(B)(ii), 8 U.S.C. DHS places a high priority on
employment-based second preference 1153(b)(2)(B)(ii). Any changes to these conducting its regulatory impact
immigrant visa (EB2) category should provisions would need to be made by analysis in an objective, fact-based
be able to file their applications for Congress. DHS notes, however, that manner with the highest degree of
adjustment of status immediately upon physicians may also be eligible to seek transparency and integrity in order to
having their Form I140 petitions immigrant visas under the EB1 support and inform the regulatory
approved, instead of enduring long classification as individuals with process.125 DHS discusses the impact of
waiting periods due to EB2 immigrant
extraordinary ability. this rule on U.S. workers in more detail
visa backlogs. The commenter explained
in other sections of Part Q.
that those who qualify for NIWs would 5. The Revised Visa Bulletin System
help improve the U.S. economy, wages Comment. Several commenters 2. General Economy
and working conditions of U.S. workers, submitted views on the recently revised Comment. Many commenters stated
and educational and training programs Visa Bulletin system announced by DOS that this rule would be good for the
for U.S. children and underqualified and DHS on September 9, 2015, and the economy in general terms. Some
workers. Commenters compared the subsequent revisions made on commenters cited the positive effects of
U.S. immigration system with other September 25, 2015, to certain dates on high-skilled foreign labor on the overall
countries systems and stated that the the October 2015 Visa Bulletin. economy because of the stimulating
other countries facilitate permanent Commenters expressed their effects in other sectors of the economy.
status and access to benefits faster than disappointment at the September 25 Other commenters suggested this rule
the United States. Another commenter revisions. One commenter requested would stimulate the economy as
requested that physicians granted NIWs that DHS provide relief in this final rule principal beneficiaries and their
be considered under the first preference
to the people who were affected by dependents would contribute by
employment-based immigrant visa
these revisions. Other commenters accepting new jobs. Commenters cited
category (EB1) instead of the second
requested a better Visa Bulletin system. the numbers of immigrants who hold
preference as this change would attract
Finally, one commenter recommended patents or Nobel prizes and the growing
more international physicians to come
that USCIS should continue to advance number of entrepreneurs. Commenters
to the United States at a time when we
cut-off dates in the Visa Bulletin. also suggested that providing further
are facing a shortage of physicians.
Response. DHS appreciates the flexibilities to these immigrants would
Another commenter requested that DHS
concerns raised by individuals who may foster more innovation and
eliminate the per-country limits for NIW
have been affected by the September 25 entrepreneurship.
beneficiaries.
revisions to the October 2015 Visa Many commenters agreed that
Response. DHS appreciates the
Bulletin. However, further revisions to increased stability while waiting to
concerns expressed by commenters
the Visa Bulletin system or dates adjust status would encourage these
regarding individuals who are subject to
indicated in the Visa Bulletin must be high-skilled workers to more fully
long waits for immigrant visas.
accomplished in coordination with DOS contribute to the economy by making
However, DHSs ability to provide
and are outside the scope of this increased investments. Some high-
immigrant visas without regard to
rulemaking. skilled workers expressed interest in
preference category is constrained by
the statutory requirements set forth by Q. Public Comments and Responses on making purchases or investmentssuch
Congress. Statutory and Regulatory Requirements as buying houses or cars, traveling
DHS agrees that those who qualify for abroad, or making retirement
NIWs could help contribute to research 1. Regulatory Impact Analysis contributionsbut refrained from doing
and medical advances, the U.S. Comment. Some commenters so due to their inability to predict their
economy, wages and working questioned the validity of the economic 125 The full Regulatory Impact Analysis published
conditions of U.S. workers, and cost-benefit analysis in the Regulatory with the NPRM is available at https://www.
educational and training programs. Impact Analysis (RIA) that DHS regulations.gov/#!documentDetail;D=USCIS-2015-
Individuals who qualify for the NIW are developed in support of the rule. These 0008-0270.
immigrant status. They also suggested skilled workers who make important employment authorization in part
that these kinds of purchases would contributions to it, including because individuals who avail
produce many ripple effects on other technological advances and research themselves of this benefit will, in many
industries. For example, investments in and development endeavors, which are cases, lose their nonimmigrant status
real estate would produce positive correlated with overall economic growth and thus be required to apply for an
ripple effects in the construction and job creation.126 Furthermore, this immigrant visa abroad via consular
industry. High-skilled workers also rule provides these workers with the processing rather than through
expressed a desire to invest in their stability and job flexibility necessary to adjustment of status in the United
local communities, but that they refrain continue to contribute to the U.S. States.
from making such investments because economy while waiting to adjust their DHS appreciates the comments on the
they are uncertain how long they will be status. DHS believes that increased negative impacts of legal immigration
able to remain in those communities flexibility and mobility will encourage including the impacts on wages, jobs,
based on their immigration status. Other nonimmigrant workers to remain in the the labor force, employer costs, and the
high-skilled workers commented that United States and continue to pursue estimates derived by the agency. DHS
the lack of stability during the LPR status, and thereby bolster our responds to these comments more
adjustment process caused many high- economy by making long-term thoroughly in other sections of Part Q of
skilled foreign workers to invest in their purchases and continued investments in this rule.
native countries by sending back the United States. The commenters While DHS appreciates the
money, business, and talent. One high- request for USCIS to provide additional commenters concerns about the
skilled worker provided the example of benefits, such as financial assistance for negative impacts of unauthorized
students who come to the United States furthering education, is beyond the immigration, this rule does not address
to study in STEM fields, and later return scope of this rule. the immigration of individuals who are
to their home countries due to the While DHS appreciates commenters admitted without inspection or parole,
difficulties and long wait times for questioning the overall reach of this rule or those who stay beyond their
adjusting status in the United States. and the assertion that only limited authorized period of admission.
The commenter stated that the return of numbers of high-skilled foreign workers With respect to comments noting a
these foreign workers to their native will be impacted by these provisions, negative impact of immigration on
countries results in losses to the United DHS has made an effort to provide schools and the deficit, comments
States of human capital, development of additional flexibilities to as many high- lacked specific information expanding
new technologies, revenue, and jobs. skilled foreign workers as possible on these statements and explaining how
High-skilled workers also argued that while still adhering to its statutory this rule would impact schools or the
foreign workers strengthen the U.S. limitations. DHS estimates the deficit. Without additional information,
economy by paying taxes, including maximum number of foreign workers DHS cannot determine the impact this
making contributions to Social Security that will be impacted by this rule based rule would have on schools or the
and Medicaid. However, these high- on the best available information. deficit. The impact of this rule on
skilled workers felt they receive few The aim of the INA 204(j) portability environmental issues is discussed more
benefits while waiting to adjust status. provisions is to standardize the existing fully in Review under the National
For example, they expressed frustration porting process with additional Environmental Policy Act (NEPA),
with the inability to obtain federal clarifications; these provisions thus do Section Q, subpart 6.
student loans for additional education not change the population of
for themselves and their children. The individuals who are eligible to port 3. Labor Market and Labor Force Impact,
commenters also noted that the under section 204(j) of the INA. The Including Jobs, Wages, and Job
dependent children of high-skilled regulatory provision authorizing Portability
workers are not able to work and earn employment authorization in i. Effect of the Rule on the Availability
supplemental income while pursuing compelling circumstances is intended to of Jobs in the United States
higher education, which adds to the offer a stopgap measure for those
financial constraints many immigrant nonimmigrants who have been Comment. Many commenters
families experience. sponsored for lawful permanent expressed concerns about the effect this
DHS also received other general residence and need additional flexibility rule will have on the availability of jobs
comments concerning the economy in due to particularly difficult in the United States. One of the primary
which the commenters recommended circumstances. DHS intentionally concerns commenters had is that there
that DHS allow market supply-and- limited the availability of such would be fewer jobs for U.S. workers if
demand forces to dictate the responses more foreign workers are granted work
to business needs for foreign workers. 126 See Hart, David, et al., High-tech Immigrant authorization. Such commenters felt
Other commenters asserted that only 1 Entrepreneurship in the United States, Small that allowing foreign workers access to
Business Administration Office of Advocacy (July employment authorization when they
to 2 percent of high-skilled foreign 2009), available at: https://www.sba.gov/sites/
workers would benefit from the changes default/files/rs349tot_0.pdf. See also Fairlie, can demonstrate compelling
outlined in this rule. Robert., Open for Business: How Immigrants are circumstances would lead to increased
Finally, commenters also expressed Driving Small Business Creation in the United competition for jobs and fewer
States, The Partnership for a New American
concern over the negative effects that Economy (Aug. 2012), available at: http:// opportunities for U.S. workers. In
both legal and illegal immigration have www.renewoureconomy.org/sites/all/themes/pnae/ addition, commenters argued that DHS
on wages, the economy, schools, the openforbusiness.pdf; Immigrant Small Business should not increase the number of
Owners a Significant and Growing Part of the foreign workers, especially in science,
deficit, and the environment, among Economy, Fiscal Policy Institute (June 2012),
other things. available at: http://www.fiscalpolicy.org/immigrant- technology, engineering, and
Response. DHS appreciates the small-business-owners-FPI-20120614.pdf; mathematics (STEM) fields, which
comments received concerning the Anderson, Stuart, American Made 2.0 How commenters allege are fields that hire
Immigrant Entrepreneurs Continue to Contribute to
effect of this rule on the U.S. economy. the U.S. Economy, National Venture Capital
many high-skilled foreign workers.
The rule recognizes the value added to Association (June 2013), available at: http:// Some commenters cited studies
the U.S. economy by retaining high- nvca.org/research/stats-studies/. suggesting evidence that a STEM worker
shortage does not exist in the United based on compelling circumstances notes that many of these labor market
States.127 Many commenters also cited under the final rule, and that DHS does participants are not necessarily new
recent DOL Bureau of Labor Statistics not expect this number to have a participants but rather participants that
(BLS) data showing that native-born measurable impact on jobs as many of are eligible to enter the labor market
workers have lost 320,000 jobs while these workers will already be in the earlier than they normally would have.
306,000 foreign-born workers have labor force. For example, as of 2015, Dependent spouses and children may be
gained jobs, and used these data to there were an estimated 157,130,000 eligible for employment authorization
assert that immigration to the United people in the U.S. civilian labor only if the principal beneficiary has
States needs to be reduced.128 force.129 DHS estimates in the RIA that been granted independent employment
Other commenters expressed concern there will be about 92,600 dependent authorization under this rule and are in
that large numbers of recent U.S. college spouses and children that may be a nonimmigrant status (including while
graduates are having difficulty securing eligible for compelling circumstances in a grace period authorized by final 8
jobs. These commenters expressed their employment authorization in the first CFR 214.1(l)).133
view that this rule will allow foreign year (the year with the largest number From a labor market perspective, it is
workers to saturate the open job market, of eligible applicants) which represents important to note that the number of
thereby increasing competition for jobs approximately 0.06 percent of the jobs in the United States is not fixed or
at all skill levels and denying them to overall U.S. civilian labor force.130 DHS static. Basic principles of labor market
recent U.S. graduates seeking work. based its analysis of labor market economics recognize that individuals
Commenters noted their concern that participants on an overestimate of the not only fill jobs, but also stimulate the
many recent U.S. graduates carry large number of affected spouses and children economy and create demand for jobs
student loan debt and need jobs to begin who will be initially eligible to apply, through increased consumption of
paying off their loans shortly after despite the fact that this results in goods and services.134 These regulatory
graduation. overstating the labor market impacts. As changes apply mainly to nonimmigrants
While many commenters expressed explained in the RIA, the principal who have actively taken certain steps to
concern that the rule will adversely beneficiaries of approved Form I140 obtain LPR status. The rule simply
affect the availability of jobs for U.S. petitions who will be eligible under the accelerates the timeframe by which
workers, other commenters stated that rule are currently in a nonimmigrant these nonimmigrants are able to enter
the rule will have a favorable effect. For status that provides employment the U.S. labor market. Importantly, the
example, some commenters asserted authorization with a specific employer. rule does not require eligible
that immigration has a positive impact Additionally, these principal nonimmigrants to submit an application
on job creation and that increasing the beneficiaries must demonstrate for an EAD based on compelling
number of foreign workers increases circumstances compelling enough to circumstances, nor does granting such
employment opportunities for other an EAD guarantee employment for an
warrant consideration of independent
workers in the labor market. Another individual. Further, the relatively small
employment authorization. Only some
commenter claimed that there is little number of people the rule affects limits
dependent spouses and children eligible
evidence that immigrants diminish the any effect the rule may have on the
to apply for employment authorization
employment opportunities of U.S. labor market.
could be considered new labor market
workers and thus they are unlikely to DHS also appreciates commenters
participants under this rule.131 132 DHS
have an effect on the American labor concerns that DHS should not increase
force and labor market. 129 See United States Department of Labor,
the number of foreign workers through
Response. DHS appreciates the points Bureau of Labor Statistics, Local Area this rule, especially in STEM fields.
of view commenters expressed Unemployment Statistics, Regional and State While DHS does not specifically
regarding the effect this rule may have Unemployment2015 Annual Averages, Table 1 identify foreign workers in STEM fields
on the U.S. labor market. In the RIA, Employment status of the civilian non- as the main beneficiaries of this rule, the
institutional population 16 years of age and over by
DHS explains that only a limited region, division, and state, 201415 annual main beneficiaries of this rule may
number of foreign workers will seek to averages (Mar. 24, 2016), available at http:// nevertheless be high-skilled workers
apply for employment authorization www.bls.gov/news.release/pdf/srgune.pdf. who happen to be in STEM fields.
130 Calculation: 92,600 / 157,130,000 * 100 =
Further, it is not the goal of this rule to
0.059 percent (or 0.06 percent rounded).
127 For example, commenters cited to the
131 Spouses of E3 and L1 nonimmigrants are
increase the numbers of workers in
following studies to support the claim that there are STEM fields, rather it is to provide
no labor shortages in STEM fields: Guest Workers currently eligible for employment authorization.
in the U.S. Labor Market: An Analysis of Supply, However, due to data limitations, DHS did not various flexibilities to high-skilled
Employment, and Wage Trends, Economic Policy remove those spouses of E3 and L1 foreign workers in certain employment-
Institute, Briefing Paper #359, Apr. 24, 2013, nonimmigrants from the estimate of dependent based immigrant and nonimmigrant visa
available at http://www.epi.org/publication/bp359- spouses and children who could be eligible to apply
for EADs under this rule. Moreover, a recently
programs who are already working in
guestworkers-high-skill-labor-market-analysis/./; Is
There A STEM Worker Shortage? A Look at promulgated DHS regulation allows for certain H
Employment and Wages in Science, Technology, 4 nonimmigrant spouses of H1B nonimmigrant who are eligible to work under the Fair Labor
Engineering, and Math, Center for Immigration workers to apply for employment authorization if Standards Act (FLSA) (see U.S. Department of
Studies (May 2014,), available at http://cis.org/no- the principal H1B nonimmigrant worker: (1) Is the Labor, Youth and Labor Age Requirements,
stem-shortage././. Additionally, one commenter beneficiary of an approved Form I140 petition, or available at: http://www.dol.gov/dol/topic/youth
cited the book Sold Out by Michelle Malkin and (2) is extending status under section 106(a) and (b) labor/agerequirements.htm). While USCIS does not
John Miano to provide evidence that there is no of AC21 because a petitioning employer has started have a policy restricting eligibility for requesting
STEM worker shortage in the United States. the employment-based permanent residence employment authorization based on age, the FLSA
128 None of the commenters cited the source of process on his or her behalf. The RIA estimates in restricts employment eligibility.
this final rule for dependent spouses and children 133 DHS did not remove spouses of E3 and L
the analysis using these Bureau of Labor Statistics
(BLS) data. However, DHS has concluded through do not include certain H4 spouses who are eligible 1 nonimmigrants from the estimate of dependent
its own research that the source appears to be a to apply for work authorization under the recently spouses and children who could be eligible to apply
news article. See New Data: U.S.-born Workers promulgated DHS regulation. See Employment for employment authorization under this rule.
Lose Jobs while Foreign-born Find Them, The Authorization for Certain H4 Dependent Spouses; Spouses of E3 and L1 nonimmigrants are
Daily Caller News Foundation, (Jan. 8, 2016), Final rule, 80 FR 10284 (Feb. 25, 2015). currently otherwise eligible to apply for EADs.
available at http://dailycaller.com/2016/01/08/new- 132 DHS is not able to determine the age of 134 Ehrenberg, R.G., and Smith, R.S. (2012).
data-us-born-workers-lose-jobs-while-foreign-born- dependent children at this time, and is therefore Modern labor economics: Theory and public policy.
find-them/. unable to predict the number of dependent children (11th ed.). Boston, Massachusetts: Prentice Hall.
the U.S. Many of the changes outlined The NSF highlights the complexity in In addition, DHS appreciates the
in the rule are primarily aimed at high- definitively stating whether there is or comments it received that large numbers
skilled workers who are beneficiaries of is not a STEM worker shortage or of recent college graduates are having
approved employment-based immigrant surplus. difficulty securing jobs and that foreign
visa petitions and are waiting to become workers will saturate the job market,
lawful permanent residents (LPRs). DHS reviewed the cited BLS data thereby increasing competition for jobs
Additionally, the changes are meant to showing that foreign-born workers are and denying them to recent U.S.
increase the ability of such workers to gaining jobs at a much higher rate than graduates seeking work. As this rule is
seek promotions, accept lateral native-born workers in support of their primarily focused on retaining and
positions with current employers, argument that immigration to the United providing flexibilities to high-skilled
change employers, or pursue other States needs to be reduced. DHS notes foreign workers who are already in the
employment options. DHS that the BLS employment data cited United States, DHS disagrees with these
acknowledges there is a possibility that show the monthly change in commenters. Most of the high-skilled
this rule could impact foreign-born employment levels of the entire U.S. foreign workers targeted in this rule
STEM workers in the United States. population, separated into groups of would not be competing for similar jobs
However, DHS is not able to quantify native-born and foreign-born workers or levels of jobs as recent college
the magnitude of the potential effect this for comparison.137 In addition, the BLS graduates. However, DHS has
rule could have on the number of such data commenters cite specifically show considered the impact on the labor
workers because we cannot separate the net change in employment levels market, as discussed in the RIA and in
individuals who are specifically STEM over the two-month period of November other sections of this final rule. As
workers from the broader population of to December 2015, during which native- previously discussed though, the rule
high-skilled foreign workers, who are born workers lost 320,000 jobs while simply accelerates the timeframe by
the focus of this rule. DHS notes that foreign-born workers gained 306,000 which spouses and dependents are able
commenters did not provide estimates jobs. When one examines the same BLS to enter the U.S. labor market.
or sources of data to more accurately employment level data for all of Importantly, the rule does not require
determine the additional number of calendar year 2015 (January to eligible spouses and dependents to
workers this rule may add. December), the data show that native- submit an application for employment
born workers gained 2,278,000 jobs and authorization, nor does the granting of
Moreover, DHS appreciates the
foreign-born workers gained 873,000 employment authorization guarantee
comments received citing studies
jobs. Considering these longer-term that spouses and dependents will obtain
suggesting that the United States does
trends in employment levels, the data employment.
not have a STEM worker shortage. DHS Comment. Several commenters
notes that the intention of this rule is obtained from the short, seasonal period
of time between November and requested that DHS take steps to prevent
not to increase the number of STEM situations in which large companies lay
workers in the United States or to December 2015 presents an incomplete
and misleading picture.138 off a number of U.S. workers and
eliminate a possible STEM worker replace them with H1B nonimmigrant
shortage. While, as just noted, there is workers. Commenters have stated that
137 The BLS defines foreign-born as persons
a possibility that this rule could impact the laid-off U.S. workers are often forced
residing in the United States who were not U.S.
the number of STEM foreign workers, citizens at birth. That is, they were born outside the to train their H1B replacements or
DHS does not know how many STEM United States or one of its outlying areas such as forgo severance pay. One commenter
foreign workers would be impacted. Puerto Rico or Guam, to parents neither of whom
stated that large outsourcing agencies
Further, DHS explained in a recent was a U.S. citizen. The foreign-born population
includes legally-admitted immigrants, refugees, have promoted the practice of replacing
rulemaking that there is no temporary residents such as students and temporary U.S. workers, and the rule should
straightforward answer as whether the workers, and undocumented immigrants. The prohibit entities from submitting
United States has a surplus or shortage survey data, however, do not separately identify the
petitions for H1B and L1
of STEM workers.135 Moreover, numbers of persons in these categories. See http://
www.bls.gov/news.release/forbrn.tn.htm. classification if the entities have more
according the National Science 138 DHS notes that the source of these data, the than 50 employees and more than 50
Foundation (NSF), Current Population Survey at BLS, presents a broad percent of their workforce or
It depends on which segment of the picture of employment, as it is a household survey subcontracted vendors are on H1B and
and includes agricultural workers and the self-
workforce is being discussed (e.g., sub- employed, although neither of these groups is L1 visas.
baccalaureates, Ph.D.s., biomedical scientists, within the main target population of this rule. The Response. Existing law and regulation
computer programmers, petroleum engineers) BLS conducts another employment survey, the provide some protection against the
and where (e.g., rural, metropolitan, high- Current Employment Statistics, based on payroll types of employer abuses cited by
technology corridors). It also depends on data that is a more reliable gauge of measuring
month-to-month change due to a smaller margin of commenters. Before filing an H1B
whether enough or not enough STEM
workers is being understood in terms of the error than the household survey. Both the payroll petition, the U.S. employer petitioner
quantity of workers; the quality of workers in and household surveys are needed for a complete generally must first file a labor
picture of the labor market due to the make-up of condition application (LCA) with DOL
terms of education or job training; racial, the surveys and the type of respondents. However,
ethnic or gender diversity, or some these commenters only rely on the household that covers the proposed dates of H1B
combination of these considerations (p. 9).136 survey. It is misleading to attribute statistics that employment.139 Among other things,
encompass all foreign-born workers in the United the LCA requires the petitioner to attest
135 Improving and Expanding Training States to only the high-skilled employment-based to the occupational classification in
Opportunities for F1 Nonimmigrant Students with workers identified in this rule. The BLS data does
which the worker will be employed, the
STEM Degrees and Cap-Gap Relief for All Eligible not distinguish foreign workers by educational
F1 Students; Final rule, 81 FR 13040 (11 Mar. attainment, and while this rule is mainly aimed at wage to be paid to the worker, the
2016). high-skilled foreign workers who likely have at location(s) where the employment will
least a bachelors degree, it would be incorrect to occur, that the working conditions
136 National Science Foundation (NSF), compare this specific population to all foreign-born
Revisiting the STEM Workforce: A Companion to workers. Foreign-born workers could include low- provided to the H1B nonimmigrant
Science and Engineering Indicators, 2014, 9 (Feb. skilled workers, temporary workers, students, or
4, 2015), available at http://www.nsf.gov/pubs/ even undocumented immigrants, which are not the 139 See INA sections 101(a)(15)(H)(i)(B) and
2015/nsb201510/nsb201510.pdf. main target populations for this rule. 212(n), 8 U.S.C. 1101(a)(15)(H)(i)(B) and 1182(n).
worker will not adversely affect other more senior positions. According to the because employers will be inclined to
similarly situated workers, and that commenter, this inability to advance hire immigrant workers who may work
there is no strike or lockout in the reduces the number of available jobs for lower wages. A few commenters
occupational classification at the place that U.S. workers could fill and reduces claimed that some companies underpay
of employment.140 Petitioners who economic growth. U.S. workers by implicitly threatening
employ a certain percentage of H1B Other commenters stated that the rule to replace them with lower-paid foreign
nonimmigrant workers are considered to will have a favorable effect on U.S. workers with H1B or L1
be H1B dependent and are subject to workers. For example, one commenter nonimmigrants. Moreover, DHS
additional attestations.141 These U.S. stated that job flexibility for foreign received many comments about the
employers are required to attest that workers will improve competition in the impact this rule would have on wages
they did not and will not displace U.S. job market and allow foreign workers to from the perspective of immigrant
workers employed by the employer better compete with American workers, workers. Many of these commenters
within the period beginning 90 days thereby improving wages for all stated that the rule will lead to wage
before and ending 90 days after the date workers. Moreover, according to the suppression because it will still be
of the filing of any visa petition commenter, allowing foreign workers to difficult for immigrant workers to
supported by the LCA and that they change jobs, as outlined in the rule, change jobs easily, thereby allowing
took good faith steps to recruit qualified would allow such workers to progress in employers to offer lower wages to
U.S. workers for the prospective H1B their careers without restrictions and immigrant workers as well as U.S.
position.142 Employers are not subject to would make the labor market fairer for workers. Commenters expressed that
these additional requirements, however, all American citizens. this resulting decline in wages would
if the only H1B nonimmigrant workers Response. DHS appreciates the especially be felt in the technology
sought in the LCA receive at least comments regarding the rules effect on sector. Some commenters asserted that
$60,000 in annual wages or have the labor market due to the ability or many companies lay off native-born
attained a masters or higher degree in inability of high-skilled foreign workers engineers and other technology industry
a specialty related to the relevant to port. The intent of this final rule is, workers during economic downturns,
employment.143 DOL may impose in part, to alleviate some of the and then rehire immigrant workers at
penalties and fines if an employer fails difficulties high-skilled foreign workers reduced wages.
to comply with the requirements of the experience while trying to change jobs Other commenters stated that the rule
LCA.144 to progress in their careers or to change will have a favorable effect on the wages
DHS appreciates the commenters employers altogether, consistent with of high-skilled U.S. and foreign workers.
suggestion that the rule should prohibit existing statutory authorities. Currently, Many commenters noted that high-
certain petitioners from being allowed section 204(j) of the INA authorizes DHS skilled foreign workers raise the wages
to submit H1B or L1 petitions based to provide job flexibility for applicants of U.S. workers. For example, some
on how many of their employees are with long-delayed applications for commenters cited recently published
already foreign workers; however, DHS adjustment of status. Under this section, research showing that higher numbers
notes such action is beyond the scope of foreign nationals are eligible to port to of H1B nonimmigrant workers in
this regulation. While DHS does not a new position with either the same or STEM fields appear to positively affect
prevent petitioners from filing based on a new employer if he or she filed an the wages of U.S. high-skilled
current numbers of foreign workers, Application to Register Permanent workers.146 Finally, commenters
certain petitioning employers are Residence or Adjust Status (Form I485) mentioned that as wages increase for
required by law to pay additional fees that has remained pending for 180 days high-skilled foreign workers, the
when filing H or L nonimmigrant or more, as long as the new job is in the economy will improve and additional
petitions, depending on the size of the same or a similar occupational taxes will be paid into the system.
employer and number of foreign classification as the job for which the Response. DHS appreciates the points
workers it employs in those statuses.145 underlying employment-based of view commenters expressed
immigrant visa petition was filed. regarding the effect of the rule on wages
ii. Effect of the Rule on Job Portability Moreover, DHS appreciates the for native-born and immigrant workers,
for Foreign Workers commenters concern that the lack of job but disagrees with statements that wages
Comment. Some commenters portability diminishes economic growth will be depressed by this rule. DHS
expressed concerns about the effect this by restricting upward and lateral job notes that a large body of research exists
rule will have on the ability of foreign mobility of foreign workers, which in supporting the findings that high-skilled
workers to change jobs or employers turn prevents jobs from opening up that immigrant workers are beneficial to the
(the ability to port). One commenter may be filled by U.S. workers. The focus U.S. economy and labor market in the
claimed that the inability of foreign of this rule is to streamline and long term. While recent research shows
workers to port distorts the labor market standardize the porting process and evidence that immigration of high-
by preventing such workers from taking make it easier for eligible individuals to skilled workers leads to net long-term
port and advance upwards in their benefits, there is a potential for negative
140 See INA section 212(n), 8 U.S.C. 1182(n); see
careers. DHS believes that standardizing impacts in the short-term for some U.S.
also 20 CFR 655.730(c)(4) and (d). job portability will thus benefit high-
141 See INA section 212(n)(3)(A), 8 U.S.C.
1182(n)(3)(A); see also 20 CFR 655.736.

skilled workers in immigrant and 146 See Rothwell, J., and N.G. Ruiz,H1B Visas
142 Id. See INA section 212(n)(1) and (3), 8 U.S.C. nonimmigrant visa classifications. and the STEM Shortage, Brookings Institution,
(2013), available at http://www.brookings.edu/
1182(n)(1) and (3); see also 20 CFR 655.736.

143 See INA section 212(n)(1)(E)(ii) and (n)(3)(B),
iii. Effect of the Rule on Wages research/papers/2013/05/10-h1b-visas-stem-
rothwell-ruiz. The authors of this paper also
8 U.S.C. 1182(n)(1)(E)(ii) and (n)(3)(B). Comment. Many commenters published a companion white paper that expands
144 See INA 212(n)(2), 8 U.S.C. 1182(n)(2); see
expressed concerns about the effect this upon the research published by the Brookings
also 20 CFR 655.800 et seq. rule will have on wages. One of the Institution, see Rothwell, J., and N.G. Ruiz, H1B
145 See H and L Filing Fees for USCIS Form I Visa and the STEM Shortage: A Research Brief.
129, Petition for a Nonimmigrant Worker, available
primary concerns commenters had is Social Science Research Network (SSRN) (2013),
at: https://www.uscis.gov/forms/h-and-l-filing-fees- that the rule will lead to an overall available at http://papers.ssrn.com/sol3/
form-i-129-petition-nonimmigrant-worker. reduction in wages for U.S. workers papers.cfm?abstract_id=2262872.
workers.147 In fact, most federal lower wages, rather than native-born immigrants are entering the labor
government reports and academic workers being paid less. Additionally, market.
literature show that immigration an increased number of high and low- Response. DHS does not agree with
generally produces a modest increase in skilled workers in the labor force are these commenters. While the
the wages of native-born workers in the expected to increase employment and commenters did not identify the source
long run, and that any negative economic growth (i.e., increase the rate of their statement, DHS assumes the
economic effects (in the form of wages) of growth of gross domestic product statement came from an opinion
are largely felt by other immigrant [GDP]) as well as increase labor editorial that stated a series of assertions
workers with education and skill levels productivity as workers gain more related to U.S. economic conditions.155
similar to native-born workers.148 flexibility in the labor market and are Although the topic of the opinion
However, there is some debate regarding able to pursue additional training and editorial concerned the effect of
wages in the economic literature. For activities to improve skills.151 immigration in the United States on
example, lower-skilled and less DHS takes seriously commenters that native-born workers, the assertions it
educated workers may experience stated that some companies underpay makes, including that median family
declining wages as an immediate, short- U.S. workers by implicitly threatening income is down $4,000 since November
run response to a sudden, unexpected to replace them with lower-paid foreign 2007, are not attributed as being
increase in the labor supply (i.e., a labor workers on H1B and L1 visas. DHS directly caused by immigration as some
supply shock) before wage levels continues to work with DOL to protect commenters state in their opposition to
recover or exceed where they were prior U.S. workers. To protect the wages and this rule.156 Of note, the United States,
to the increase in the labor supply.149 A working conditions of U.S. workers, the along with many other industrialized
recent Congressional Budget Office INA requires employers that file a countries, experienced a major
(CBO) report presents a similar finding, request with DHS for an H1B economic recession between 2007 and
though with a focus on all U.S. workers nonimmigrant worker to first file an 2009, and which continued to impact
rather than just native-born workers.150 LCA with DOL, attesting to pay the the global economy well after 2009. It is
The CBO report finds that average wages required wage; to provide working far more likely that median family
for low-skilled workers would initially conditions that will not adversely affect income decreased during that period as
decline in response to a labor supply the working conditions of U.S. workers a result of such a major economic
shock, but would steadily increase similarly employed; that there is no recession and the lasting impacts of that
towards, and eventually exceed, the pre- strike, lockout, or work stoppage in the recession, rather than solely due to the
labor supply shock wage level. The course of a labor dispute in the effects of immigration.
downward pressure on average wages occupational classification at the place v. Effect of the Rule on Costs Incurred
would be an effect of the additional, of employment at the time of filing; and by Employers
new low-skilled workers being paid to notify its U.S. workers that it intends
to hire the nonimmigrant worker.152 Comment. Many commenters, both
147 See The Economic Impact of S. 744, the
Similarly, the majority of employers that employers and employees, suggested
Border Security, Economic Opportunity, and file a Form I140 petition with DHS that this rule overall would
Immigration Modernization Act, Congressional unnecessarily increase administrative
Budget Office (CBO), (June 18, 2013), available at must first file a labor certification
http://www.cbo.gov/sites/default/files/cbofiles/ application with DOL, which requires a and legal costs, as well as time burdens,
attachments/44346-Immigration.pdf; Ottaviano, G. labor market test of U.S. workers and for employers, which may discourage
& Peri, G., Rethinking the Effects of Immigration
attestations to numerous labor employers from hiring high-skilled
on Wages, Journal of the European Economic foreign workers. Other commenters
Association, (Feb. 2012), 10(1): 152197. conditions, such as paying the required
148 Id. wage,153 providing working conditions expressed concerns that the rule would
149 See Borjas, George J., The Wage Impact of the that will not adversely affect U.S. deter employers from either retaining
Marielitos: A Reprisal (2015), available at http:// workers, and only rejecting U.S. worker existing foreign workers or hiring new
www.hks.harvard.edu/fs/gborjas/publications/
applicants for lawful, job-related foreign workers by making regulatory
working%20papers/Mariel2015.pdf. Borjas compliance a more difficult process.
findings focus specifically on low-skilled and low- reasons.154
educated Cuban immigrants who arrived in the
Commenters suggested that hiring
United States during the 1980 Mariel boatlift. As iv. Effect of Employment-Based immigration attorneys would be
many as 125,000 Cubans immigrated to the United Immigration on Falling Income necessary to complete the paperwork
States by the end of 1980 with as many as half and thus employers would invest
settling in the Miami area, thereby increasing the Comment. Some commenters stated
number of workers by about 8 percent and that median household income has been thousands of dollars into hiring high-
increasing the number of high school dropouts by driven down by $4,000 per year because skilled foreign workers, but have no
almost 20 percent. guarantee of retaining those employees.
150 See The Economic Impact of S. 744, the
151 Treyz, Frederick R., C. Stottlemyer, and R. Employers cited costs ranging from
Border Security, Economic Opportunity, and $10,000 to $20,000 or more per
Motamedi, Key Components of Immigration
Immigration Modernization Act, Congressional
Budget Office (CBO), (June 18, 2013), available at
Reform: An Analysis of the Economic Effects of employee for both USCIS and attorney
Creating a Pathway to Legal Status, Expanding fees. Many employers expressed
http://www.cbo.gov/sites/default/files/cbofiles/
High-skilled Visas, & Reforming Lesser-skilled
attachments/44346-Immigration.pdf. According to concern over losing their financial
the report, wages for the entire labor force are Visas, Regional Economic Models, Inc. (REMI),
projected to be 0.1 percent lower through 2023, but (2013), available at http://www.remi.com/ investment in new employees if
then increase through 2033 to where wages are immigration-report. portability is exercised more
152 See INA 212(n), 8 U.S.C. 1182(n); see also 8
about 0.5 percent higher than the initial wage level
in 2013. After disaggregating relative wages CFR 214.2(h)(4)(i)(B) and 20 CFR 655.700. 155 None of the commenters cited the source for
153 Before filing a labor certification application,

according to skill level, CBO estimated that wages this statement. However, a similar amount for
of those in the lowest and highest quintile (low- an employer must obtain a prevailing wage median household income in the immigration
skilled and high-skilled, respectively) would determination from DOL. The prevailing wage context was published in the National Review. See
decline by 0.3 percent; the wages of those in the determination establishes the minimum wage the Sessions, J., Whos Looking Out for the American
middle three quintiles are expected to increase by employer may offer and pay to the foreign national, Worker, National Review, (Dec. 12, 2014),
0.5 percent. The CBO report emphasizes the overall as well as advertise in the course of recruitment to available at http://www.nationalreview.com/article/
level of wages is also affected by other factors such U.S. workers. See INA 212(p), 8 U.S.C. 1182(p); see 394614/whos-looking-out-american-worker-jeff-
as the capital-to-labor ratio and total factor also 20 CFR part 656. sessions.
productivity. 154 See 20 CFR part 656. 156 Id.
extensively. However, some employers from either retaining existing foreign apply for employment authorization
supported this rule because it would workers or hiring new foreign workers based on compelling circumstances in
help them hire the best talent. by making regulatory compliance a the first year of implementation and a
Employees who commented on this more difficult process, DHS notes that, maximum annual estimate of 53,095
issue stated that employers spend a for the most part, it is codifying individuals in the second and
small percentage of their revenue on longstanding policy and practice subsequent years.158 As detailed in the
immigration-related fees, which are implementing relevant provisions of RIA to the NPRM and final rule, DHS
offset from the benefits they receive AC21. Many of these changes are estimates the maximum number of
from high-skilled workers. primarily aimed at improving the ability individuals that may be eligible to apply
Response. DHS appreciates the of U.S. employers to hire and retain for employment authorization; however,
concern expressed about additional high-skilled workers who are the analysis is unable to model for the
employer costs and the impact on high- beneficiaries of approved employment- number of individuals who will find
skilled workers. It is unclear to DHS of based immigrant visa petitions and are themselves in compelling circumstances
the source and composition of the waiting to become lawful permanent or predict their eligibility along those
specific costs that commenters cited, residents, while increasing the ability of discretionary lines. Please consult the
which ranged from $10,000 to $20,000. those workers to seek promotions, RIA for the final rule for a detailed
Commenters did not provide any accept lateral positions with current explanation on the DHS estimates of the
detailed evidence of how these total employers, change employers, or pursue backlog, annual flow, and associated
employer costs were calculated, nor did other employment options. DHSs costs.
they indicate any source for these intention is not to add to regulatory In the RIA for this final rule, DHS has
estimates. DHS assumes these total costs compliance, but rather to simplify and updated the estimated maximum
may be comprised of filing fees and ease regulatory compliance. number of individuals that may be
opportunity costs of time, including the eligible to apply for the compelling
employment of a lawyer, among other 4. DHS Estimate of 155,000 Compelling circumstances employment
costs not defined. There may be some Circumstances Employment authorization. DHS estimates for the
additional costs to employers due to Authorization Applicants final rule that a maximum total of
employee turnover, as recognized and Comment. Several commenters 361,766 individuals may be eligible to
discussed in the RIA. DHS questioned the DHS estimate of 155,000 apply for employment authorization
acknowledges that the rule may EADs that could be issued under the based on compelling circumstances in
negatively affect some U.S. employers compelling circumstances provisions of the first year of implementation of this
that sponsor workers for employment- this rule. Many commenters stated that rule and a maximum annual estimate of
based immigrant visas, primarily this estimate was much higher than the 64,561 individuals in the second and
through higher rates of employee actual number of individuals who subsequent years.159 DHS reiterates that
turnover due to accepting offers of would qualify for the compelling eligibility for independent employment
employment with other employers. DHS circumstances EAD. One commenter authorization will be limited to those
reiterates that these are not required stated that there is no justification for who meet specified criteria that
benefits and employers voluntarily how this number was estimated. demonstrate compelling circumstances,
sponsor workers. Employers incur costs Another commenter asked if this and who are physically present in the
by filing an employment-based estimate was changed at the last minute United States. Such individuals must be
immigrant visa petition on an due to pressure from lobbyists. A in specified, eligible nonimmigrant visa
employees behalf when seeking to commenter also asked if USCIS classifications with approved
sponsor that employee for lawful estimated how many people with employment-based immigrant visa
permanent residence. However, approved Form I140 petitions will be
employers may view the costs eligible for EADs based on compelling 158 For the proposed rule, DHS estimated a
associated with sponsoring an employee maximum total of 257,039 individuals, which

circumstances. includes the backlog estimate of 203,944
as a tangible investment in the Response. DHS appreciates the individuals (principals and eligible dependent
company. Firms make rational decisions comments regarding the estimated spouses and children) and the annual estimate of
to hire foreign workers that fill a need number of compelling circumstances 53,095 individuals. DHS assumes that all
such that the cost of the investment is individuals in the backlog will apply for
EADs that could be issued under the employment authorization in the first year of
outweighed by the potential benefit of provisions of this rule. Commenters implementation of this rule. Moreover, as described
employing that foreign worker. At the questioned DHSs estimate of more than in the RIA, the visa backlog is the estimated
same time, if the principal beneficiary of 155,000 EADs and the lack of number of persons waiting for the availability of an
the immigrant visa petition is in a immigrant visa. DHS estimated the number of
justification for how USCIS estimated persons in the specified, eligible nonimmigrant visa
compelling situation that qualifies for this number. However, commenters did classifications with approved Form I140 petitions
temporary employment authorization or not provide an alternative source of data who are currently waiting for a visa to become
ports and changes employers under that would provide a more accurate available in certain employment-based preference
either INA 204(j) or pursuant to the H categories.
estimate. DHS estimated the maximum 159 For the final rule, DHS estimated a maximum
1B portability provisions, the annual average of individuals who may total of 361,766 individuals, which includes the
petitioning employer could incur some request employment authorization backlog estimate of 297,205 individuals (principals
turnover costs. Consequently, increased under the provisions of this rule in the and eligible dependent spouses and children) and
rates of employee turnover may occur as first two years. DHS estimated this
the annual estimate of 64,561 individuals. DHS
certain nonimmigrant workers pursue again assumes that all individuals in the backlog
maximum average was 155,067 for PRA will apply for employment authorization in the first
employment with different employers. purposes in the NPRM.157 In the NPRM, year of implementation of this rule. Note that due
Other employers, however, will benefit DHS estimated that a maximum total of to data limitations the estimates of the population
by being able to hire these foreign 257,039 individuals may be eligible to
eligible to be granted employment authorization
workers without having to expend any based on compelling circumstances presented are
the maximum number of individuals that may be
immigration petition costs. 157 Calculation: [257,039 (maximum total of eligible to apply; however, DHS expects that a
With regard to commenters concerns eligible individuals in year 1) + 53,095 (maximum smaller number of individuals, in practice, will
that the rule would deter employers annual estimate in year 2)]/2 = 155,067. choose to apply.
petitions and are currently waiting for a exceeded in the first year of mentioned, DHS does not have enough
visa to become available in certain implementation, and the main data to substantiate the commenters
employment-based preference provisions driving the cost estimate are conclusion from Malkin and Mianos
categories. Employment authorization the employment authorization granted book on STEM worker shortages. Please
based on compelling circumstances for compelling circumstances and see section Q(3)(i) for further discussion
granted under this rule will be valid for porting ability under section 204(j) of about the rules intended beneficiaries
a period of one year. the INA. and the effect on foreign workers in
While these provisions do not directly STEM fields. DHS reiterates that the
5. Unfunded Mandates Reform Act impose any additional Federal mandates goals of this rule include enhancing U.S.
Violation on state, local, and tribal governments, employers ability to retain and attract
Comment. One commenter stated that in the aggregate, or by the private sector, high-skilled and certain other workers
these regulations violate the federal there may be some petitioning to the United States and increasing
mandates in the Unfunded Mandates employers that could potentially flexibility in pursuing normal career
Reform Act (UMRA). The commenter experience some employee turnover progression for those workers pursuing
stated that the NPRM is clearly within costs should the worker beneficiaries of LPR status in certain employment-based
the scope of both the private sector and those petitions choose to port to another immigrant visa categories who are
state and local area UMRA mandates. employer or obtain independent waiting for immigrant visas to become
The commenter was of the view that the employment authorization based on available.
rule falls within UMRA based on the compelling circumstances. DHS
following factors: (1) Economic recognizes that these provisions could 6. Review Under the National
expenditures exceed $100 million place additional burdens on the state Environmental Policy Act (NEPA)
(adjusted for inflation) in the first year; and private sector in these Comment. A commenter asserted that
and (2) if implemented, the proposed circumstances. However, DHS reiterates this rule, like all immigration rules,
amendments codifying the AC21 and that these are not required immigration must be subject to review under the
ACWIA policies and practices would benefits. State and private sector National Environmental Policy Act
affect and change the numbers of employers make the cost-benefit (NEPA). Under NEPA, agencies must
individuals subject to the H1B cap and decisions of whether to expend finances prepare an Environmental Impact
ACWIA fees. The commenter stated that to petition for foreign workers. Statement for all major Federal actions
extensions and other modifications to DHS agrees with the commenter that significantly affecting the quality of the
the ACWIA fee payment requirements codifying the AC21 and ACWIA policies human environment. The commenter
would be an intergovernmental and practices would affect and change argued that concerns of the impact of
mandate as defined by UMRA because the numbers of individuals subject to human population growth on the
the rule changes the number and the H1B cap exemption and ACWIA quality of the environment must be
definition of foreign nationals to whom fees. DHS provides this assessment of taken into consideration under NEPA.
the ACWIA fees applies. The the ACWIA fees in the RIA of this final The commenter suggested that both
commenter also stated that these rule (as well as the RIA published in the legal and illegal immigration is the
statutory mandates are imposed on all NPRM). As stated in the RIA, DHS principal cause of current U.S.
institutions of higher education and reported a total of 8,589 H1B population growth. Furthermore, the
affiliated and related non-profit exemptions due to an employer being a commenter claimed that DHS should
entities. nonprofit entity related to or affiliated prepare an environmental assessment to
The commenter also was of the view with an institution of higher address the impacts of the result from
that the unfunded mandates associated education.160 DHS anticipates that there this rule.
with the published NPRM significantly may be an increase as a result of these Response. The population affected by
change how the statutory caps on amendments in the numbers of cap this rule is primarily comprised of
immigrant and H1B nonimmigrant exemptions, due to the employer being immigrants and nonimmigrants who are
visas operate for all other H1B a nonprofit entity related to or affiliated already in the United States and have
employers as well. The commenter with an institution of higher education. been present for a number of years. The
asserted that the NPRM states there is a However, we cannot project the size of rule increases flexibilities in pursuing
very significant impact on the entire such an increase at this time. In normal career progression for those
range of STEM- and IT-related economic addition, DHS notes that because workers pursuing LPR status in certain
sectors, which rely on increases in petitioners that are currently cap-subject employment-based immigrant visa
productivity and innovation driven by could become eligible for cap-exempt categories who are waiting for visas to
immigration of H1B workers who status, the transition of such currently become available. For that reason, DHS
adjust status while employed in the cap-subject petitioners could result in does not consider this rulemaking to
United States. The commenter stated other cap-subject petitioners being significantly affect the quality of the
that the proposed regulations are not the approved. human environment. Further, this rule
result of voluntary action by taxpayer DHS does not state in the NPRM that is categorically excluded from NEPA
funded state and local government there will be a significant impact on any review. DHS Management Directive
agencies. Additionally, the commenter specific sectors of the economy that may (MD) 02301 Rev. 01 establishes
cited the book Sold Out by Michelle be reliant on H1B workers, nor does it procedures that DHS and its
Malkin and John Miano to provide identify STEM- or IT-related workers as components use to comply with NEPA
evidence that there is no STEM worker the main beneficiaries of the provisions and the Council on Environmental
shortage in the United States. in the final rule. As previously Quality (CEQ) regulations for
Response. For this final rule, DHS has implementing NEPA, 40 CFR parts
added a statement to address the 160 Department of Homeland Security, Report on 15001508. CEQ regulations allow
requirements of Title II of UMRA. As H1B Petitions, Fiscal Year 2015 Annual Report to federal agencies to establish categories
Congress October 1, 2014September 30, 2015.
stated in the UMRA section of this final Available at: https://www.uscis.gov/sites/default/
of actions, which do not individually or
rule, the $100 million expenditure files/USCIS/Resources/Reports%20and%20 cumulatively have a significant effect on
threshold (adjusted for inflation) may be Studies/H-1B/H-1B-FY-2015-Petitions.pdf. the human environment and, therefore,
do not require an Environmental and of promoting flexibility. This rule beneficiaries of approved employment-
Assessment or Environmental Impact has been designated a significant based immigrant visa petitions by
Statement. 40 CFR 1507.3(b)(1)(iii), regulatory action that is economically limiting the grounds for automatic
1508.4. The MD 02301 Rev. 01 significant, under section 3(f)(1) of revocation of petition approval;
establishes the Categorical Exclusions Executive Order 12866. Accordingly, enhances job portability for such
that DHS has found to have no such the rule has been reviewed by the Office beneficiaries by improving their ability
effect. MD 02301 Rev. 01 Appendix A of Management and Budget. to retain their priority dates for use with
Table 1. DHS is amending its regulations subsequently approved employment-
For an action to be categorically relating to certain employment-based based immigrant visa petitions;
excluded, MD 02301 Rev. 01 requires immigrant and nonimmigrant visa establishes or extends grace periods for
the action to satisfy each of the programs. The amendments interpret certain high-skilled nonimmigrant
following three conditions: (1) The existing law and change regulations in workers so that they may more easily
entire action clearly fits within one or order to provide various benefits to maintain their nonimmigrant status
more of the Categorical Exclusions; (2) participants in those programs, when changing employment
the action is not a piece of a larger including: Improved processes for U.S. opportunities or preparing for
action; and (3) no extraordinary employers seeking to sponsor and retain departure; and provides additional
circumstances exist that create the immigrant and nonimmigrant workers, stability and flexibility to certain high-
potential for a significant environmental greater stability and job flexibility for skilled workers by allowing those who
effect. MD 02301 Rev. 01 section such workers, and increased are working in the United States in
V.B(1)(3). transparency and consistency in the certain nonimmigrant statuses, are the
DHS has determined that this rule application of DHS policy related to beneficiaries of approved employment-
does not individually or cumulatively affected classifications. Many of these based immigrant visa petitions, are
have a significant effect on the human changes are primarily aimed at subject to immigrant visa backlogs, and
environment because it fits within the improving the ability of U.S. employers demonstrate compelling circumstances
Categorical Exclusion found in MD 023 to retain high-skilled workers who are to apply for employment authorization
01 Rev. 01, Appendix A, Table 1, beneficiaries of approved employment- for a limited period. These and other
number A3(d): Promulgation of rules based immigrant visa petitions and are changes provide much needed
. . . that interpret or amend an existing waiting to become LPRs, while flexibility to the beneficiaries of
regulation without changing its increasing the ability of those workers to employment-based immigrant visa
environmental effect. Rather, this rule seek promotions, accept lateral petitions, as well as the U.S. employers
affects current participants in positions with current employers, who employ and sponsor them for
immigration programs by codifying change employers, or pursue other permanent residence. In addition, these
existing policies and procedures and employment options. changes provide greater stability and
making amendments to DHS regulations First, DHS amends its regulations predictability for U.S. employers and
designed to improve its immigration consistent with certain worker avoid potential disruptions to their
programs. portability and other provisions in AC21
Finally, this rule is not part of a larger operations in the United States.
and ACWIA. These amendments clarify
action and presents no extraordinary and improve longstanding DHS policies Finally, consistent with providing
circumstances creating the potential for and practices, previously articulated in additional certainty and stability to
significant environmental effects DHS memoranda and precedent certain employment-authorized
because it does not introduce new decisions. These amendments also individuals and their U.S. employers,
populations that may have an impact on implement sections of AC21 and DHS is also changing its regulations
the environment. Therefore, this rule is ACWIA relating to certain foreign governing the processing of applications
categorically excluded from further workers who have been sponsored for for employment authorization to
NEPA review. LPR status by their employers. In so minimize the risk of any gaps in such
doing, the rule provides a primary authorization. These changes provide
V. Statutory and Regulatory
repository of governing rules for the for the automatic extension of the
Requirements
regulated community and enhances validity of certain Employment
A. Executive Orders 12866 and 13563 consistency among DHS adjudicators. In Authorization Documents (EADs or
(Regulatory Planning and Review) addition, the rule clarifies several Form I766) for an interim period upon
Executive Orders 12866 and 13563 interpretive questions raised by AC21 the timely filing of an application to
direct agencies to assess the costs and and ACWIA. renew such documents. At the same
benefits of available alternatives, and if Second, and consistent with existing time, in light of national security and
regulation is necessary, to select DHS authorities and the goals of AC21 fraud concerns, DHS is removing
regulatory approaches that maximize and ACWIA, DHS is amending its regulations that provide a 90-day
net benefits (including potential regulations governing certain processing timeline for EAD
economic, environmental, public health employment-based immigrant and applications and that require the
and safety effects, distributive impacts, nonimmigrant visa programs to provide issuance of interim EADs if processing
and equity). Executive Order 13563 additional stability and flexibility to extends beyond the 90-day mark.
emphasizes the importance of employers and workers in those Table 1, below, provides a more
quantifying both costs and benefits, of programs. The final rule, among other detailed summary of the provisions and
reducing costs, of harmonizing rules, things: Improves portability for certain their impacts.
TABLE 2SUMMARY OF PROVISIONS AND IMPACTS

Priority Date ......................... Clarifies when a priority date is established for employ- Quantitative:
ment-based immigrant visa petitions that do not re- Not estimated.
quire a labor certification under INA 203(b). Qualitative:
Removes ambiguity and sets consistent priority dates
for affected petitioners and beneficiaries.
Priority Date Retention ......... Explains that workers may retain priority dates and Quantitative:
transfer those dates to new and subsequently ap- Not estimated.
proved Form I140 petitions, except when USCIS re- Qualitative:
vokes approval of the petition for: Material error, Results in administrative efficiency and predictability
fraud or willful misrepresentation of a material fact, or by explicitly listing when priority dates are lost as the
revocation or invalidation of the labor certification ac- approval of the petitions that are revoked under
companying the petition. these specific grounds cannot be used as a basis for
an immigrant visa.
Improves the ability of certain workers to accept pro-
motions, change employers, or pursue other employ-
ment opportunities.
Employment-Based Immi- Incorporates statutory portability provisions into regula- Quantitative:
grant Visa Petition Port- tion. Petitioners
ability Under 204(j). Opportunity costs of time to petitioners for 1-year
range from $126,598 to $4,636,448.
DHS/USCIS
Neutral because the new supplementary form to the
application for adjustment of status to permanent res-
idence will formalize the process for USCIS requests
for evidence of compliance with INA 204(j) porting.
Qualitative:
Applicants/Petitioners
Replaces, through the Supplement J standardized
form, the need for individuals to submit job offer and
employment confirmation letters.
Provides stability and job flexibility to certain individ-
uals with approved employment-based immigrant
visa petitions.
Implements the clarifications regarding same or
similar occupational classifications through the new
Supplement J.
Allows certain foreign workers to advance and
progress in their careers.
Potential increased employee replacement costs for
employers.
DHS/USCIS
Administrative efficiency.
Standardized and streamlined process.
Employment Authorization Provisions allowing certain nonimmigrant principal Quantitative: Total costs over 10-year period to appli-
for Certain Nonimmigrants beneficiaries, and their dependent spouses and chil- cants are:
Based on Compelling Cir- dren, to apply for employment authorization if the $731.1 million for undiscounted costs.
cumstances. principal is a beneficiary of an approved EB1, EB2, $649.9 million at a 3% discounted rate.
or EB3 immigrant visa petition while waiting for his $565.2 million at a 7% discounted rate.
or her immigrant visa to become available. Applicants Qualitative:
must demonstrate compelling circumstances justi- Applicants
fying an independent grant of employment authoriza- Provides ability for nonimmigrants who have been
tion. sponsored for LPR status to change jobs or employ-
ers when compelling circumstances arise.
Incentivizes such skilled nonimmigrant workers con-
tributing to the economy to continue seeking LPR
status.
Nonimmigrant principal workers who take advantage
of the compelling circumstances EAD will lose their
current nonimmigrant status and may not be able to
adjust to LPR status in the United States.
Consular processing imposes potentially significant
costs, risk and uncertainty for individuals and their
families as well.
Dependents
Allows dependents to enter labor market earlier and
contribute to household income.

90-Day Processing Time for Eliminates regulatory requirement for 90-day adjudica- Quantitative:
Employment Authorization tion timeframe and issuance of interim-EADs. Adds Not estimated.
Applications. provisions allowing for the automatic extension of Qualitative:
EADs for up to 180 days for certain workers filing re- Applicants
newal requests. Removing a regulatory timeframe and moving to one
governed by processing goals could potentially lead
to longer processing times whenever USCIS is faced
with higher than expected filing volumes. If such a
situation were to occur, this could lead to potential
delays in work employment start dates for first-time
EAD applicants until approval is obtained. However,
USCIS believes such scenarios will be rare and miti-
gated by the automatic extension provision for re-
newal applications which will allow the movement of
resources in such situations.
Providing the automatic continuing authorization for
up to 180 days for certain renewal applicants could
lead to less turnover costs for U.S. employers. In ad-
dition, the automatic extension provision minimizes
the applicants risk of any gaps in employment au-
thorization.
DHS/USCIS
Streamlines the application and card issuance proc-
esses.
Enhances the ability to ensure all national security
verification checks are completed.
Reduces duplication efforts.
Reduces opportunities for fraud and better accommo-
dates increased security measures.
Automatic Revocation With Revises regulations so that a petition may remain valid Quantitative:
Respect to Approved Em- despite withdrawal by the employer or termination of Not estimated.
ployment-Based Immigrant the employers business after 180 days or more of Qualitative:
Visa Petitions. approval, or 180 days or more after the associated Allows beneficiary to retain priority date unless the
application for adjustment of status has been filed. petition is revoked for one of the reasons specified in
final 8 CFR 204.5(e)(2).
Affords porting ability under INA 204(j) and extension
of H1B status pursuant to AC21 sections 104(c) and
106(a) and (b), as well as potential eligibility for the
new compelling circumstances EAD.
Period of Admission for Cer- Nonimmigrants in certain high-skilled, nonimmigrant Quantitative:
tain Nonimmigrant Classi- classifications may be granted grace periods of up to Not estimated.
fications. 10 days before and after their validity period, and a Qualitative: Nonimmigrant Visa Holders
grace period upon cessation of employment on which Assists the beneficiary in getting sufficiently settled
the foreign nationals classification was based, for up such that he or she is immediately able to begin
to 60 days or until the end of their authorized validity working upon the start of the petition validity period.
period, whichever is shorter, during each authorized Provides time necessary to wrap up affairs to depart
validity period. the country.
Allows the beneficiary to maintain nonimmigrant sta-
tus when faced with a termination of employment to
wrap up affairs, find new employment, or change to a
different nonimmigrant classification.
Portability of H1B Status Updates, improves, and clarifies DHS regulations con- Quantitative:
Calculating the H1B Ad- sistent with policy guidance. Not estimated.
mission Period Exemp- Qualitative:
tions Due to Lengthy Adju- Formalizes existing DHS policy in the regulations,
dication Delays per Coun- which will give the public access to existing policy in
try Limitation Exemptions, one location.
Employer Debarment and Clarifies current DHS policy that there is no temporal
H1B Whistleblower Provi- limit on recapturing time.
sions.

H1B Licensing Require- Expands the evidence USCIS will examine in cases Quantitative:
ments. where a state allows an individual without licensure Not estimated.
to fully practice the relevant occupation under the su- Qualitative:
pervision of licensed senior or supervisory personnel Provides additional flexibilities in obtaining necessary
in that occupation to include evidence of compliance licensure while still permitting H1B employment dur-
with state requirements. Additionally, USCIS is ex- ing the pendency of state or local license applica-
panding the possible situations in which it may ap- tions.
prove an H1B petition even though the beneficiary Helps to relieve the circular predicament an H1B
cannot obtain a license for certain technical reasons. beneficiary may encounter.
May minimally increase time burden for the petitioner
to gather information and send it to USCIS. However,
DHS anticipates that the benefits to the petitioner
and beneficiary exceed the opportunity costs of time.
May increase opportunity costs of time for USCIS ad-
judicators to evaluate additional evidence in such
types of cases. However, DHS does not anticipate
that the opportunity costs of time will be so substan-
tial as to warrant additional hiring of staff or cause
significant adjudication delays.
Exemptions to the H1B Nu- Codifies definition of institution of higher education Quantitative:
merical Cap, Revised Def- and adds a broader definition of related or affiliated Not estimated.
inition of Related or Affili- nonprofit entity. Also, revises the definition of re- Qualitative:
ated Nonprofit Entity in lated or affiliated nonprofit entity for purposes of the Clarifies the requirements for a nonprofit entity to es-
the ACWIA Fee Context, ACWIA fee to conform it to the new definition of the tablish that it is related to or affiliated with an institu-
and Expanded Interpreta- same term for H1B numerical cap exemption. Ex- tion of higher education.
tion of Governmental Re- pands the interpretation of governmental research Better reflects current operational realities for institu-
search Organizations. organizations for purposes of the ACWIA fee and tions of higher education and how they interact with,
aligns definitions for H1B cap and fee exemptions. and sometimes rely on, nonprofit entities.
Clarifies the interpretation of governmental research
organizations to include federal, state, and local gov-
ernmental organizations.
May expand the numbers of petitioners that are cap
exempt and thus allow certain employers greater ac-
cess to H1B workers.
As required by OMB Circular A4, changes made to the regulation in and retain immigrant and nonimmigrant
Table 2 presents the prepared addition to the updated cost estimates workers, provide greater stability and
accounting statement showing the since publication of the proposed rule. job flexibility for such workers, and
expenditures associated with this The main benefits of the regulation increase transparency and consistency
regulation.161 These updated remain the same: To improve processes in the application of DHS policy related
expenditures take into account all of the for U.S. employers seeking to sponsor to affected classifications.
TABLE 2OMB A4 ACCOUNTING STATEMENT

[$ millions, 2015]
Source citation
Minimum Maximum
Category Primary estimate (RIA, preamble,
estimate estimate etc.)
Benefits
Monetized Benefits .......................................................................... Not estimated ... Not estimated ... Not estimated ... RIA.
Annualized quantified, but unmonetized, benefits .......................... 0 ....................... 0 ....................... 0 ....................... RIA.
Unquantified Benefits ...................................................................... Improves processes for U.S. employers seeking to RIA.
sponsor and retain immigrant and nonimmigrant work-
ers, provides greater stability and job flexibility for such
workers, and increases transparency and consistency
in the application of DHS policy related to affected
classifications
Costs
Annualized monetized costs for 10-year period starting in 2016 to (3%) $78.5 ..... $76.7 ................ $80.9 ................ RIA.
2025 (discount rate in parenthesis). (7%) $82.8 ..... $80.9 ................ $85.1 ................ RIA.
161 OMB Circular A4 is available at www.white
house.gov/sites/default/files/omb/assets/omb/
circulars/a004/a-4.pdf.
TABLE 2OMB A4 ACCOUNTING STATEMENTContinued

[$ millions, 2015]
Source citation
Minimum Maximum
Category Primary estimate (RIA, preamble,
estimate estimate etc.)
Annualized quantified, but unmonetized, costs .............................. N/A .................... N/A ................... N/A ................... RIA.
Qualitative (unquantified) costs ....................................................... Potential turnover cost due to enhanced job mobility of RIA.
beneficiaries of nonimmigrant and immigrant petitions
Transfers
Annualized monetized transfers: on budget ................................ N/A ................... 0 ....................... 0 ....................... RIA.
From whom to whom? .................................................................... N/A ................... N/A ................... N/A .................... N/A.
Annualized monetized transfers: off-budget ................................ N/A ................... 0 ....................... 0 ....................... RIA.
From whom to whom? .................................................................... N/A ................... N/A ................... N/A .................... N/A.
Miscellaneous analyses/category Effects Source Citation

(RIA, preamble,
etc.)
Effects on state, local, and/or tribal governments .......................... None RIA.
Effects on small businesses ............................................................ No direct costs. Indirect effects only RIA.
Effects on wages ............................................................................. None None.
Effects on growth ............................................................................ None None
DHS has prepared a full analysis beneficiaries of employment-based immigrant visa petitions take advantage
according to Executive Orders 12866 immigrant visa petitions are not defined of this rule. Therefore, DHS is choosing
and 13563. This analysis can be found as small entities, costs to these to discuss these indirect effects in this
by searching for RIN 1615AC05 on individuals are not considered as RFA final regulatory flexibility analysis.
regulations.gov. costs. However, because the petitions
are filed by sponsoring employers, this i. A Statement of the Need for, and
B. Regulatory Flexibility Act Objectives of, the Rule
rule has indirect effects on employers.
The Regulatory Flexibility Act of 1980 The original sponsoring employer that
(RFA), as amended by the Small The purpose of this action, in part, is
files the petition on behalf of an
Business Regulatory Enforcement employee will incur employee turnover to amend regulations affecting certain
Fairness Act of 1996, Public Law 104 related costs in cases in which that employment-based immigrant and
121, 5 U.S.C. 601612 requires Federal employee ports to a same or a similar nonimmigrant classifications in order to
agencies to consider the potential occupation with another employer. conform them to provisions of AC21
impact of regulations on small entities Therefore, DHS has chosen to examine and ACWIA. The rule also seeks to
during the development of their rules. the indirect impact of this rule on small provide greater job flexibility, mobility
The term small entities comprises entities as well. The analysis of the and stability to beneficiaries of
small businesses, not-for-profit indirect effects of these changes on employment-based nonimmigrant and
organizations that are not dominant in small entities follows. immigrant visa petitions, especially
their fields, and governmental when faced with long waits for
jurisdictions with populations of less 1. Final Regulatory Flexibility Analysis
immigrant visas. In many instances, the
than 50,000. An individual is not Small entities that can incur need for these individuals employment
defined by the RFA as a small entity, additional indirect costs by this rule are has been demonstrated through the
and costs to an individual from a rule those that file and pay fees for certain labor certification process. In most
are not considered for RFA purposes. In immigration benefit petitions, including cases, before an employment-based
addition, the courts have held that the Form I140 petitions. DHS conducted a immigrant visa petition can be
RFA requires an agency to perform a statistically valid sample analysis of approved, DOL has certified that there
regulatory flexibility analysis of small these petition types to determine the
are no U.S. workers who are ready,
entity impacts only when a rule directly number of small entities indirectly
regulates small entities.162 willing and available to fill those
impacted by this rule. While DHS
Consequently, any indirect impacts acknowledges that the changes positions in the area of intended
from a rule to a small entity are not engendered by this rule directly affect employment. By increasing flexibility
costs for RFA purposes. individuals who are beneficiaries of and mobility, the worker is more likely
The changes made by DHS have direct employment-based immigrant visa to remain in the United States and help
effects on individual beneficiaries of petitions, which are not small entities as fill the demonstrated need for his or her
employment-based nonimmigrant and defined by the RFA, DHS believes that services.
immigrant visa petitions. As individual the actions taken by such individuals as
a result of this rule will have immediate
162 A Guide for Government Agencies How to
indirect effects on U.S. employers.
Comply with the Regulatory Flexibility Act, May
2012 page 22. See Direct versus indirect impact
Employers will be indirectly affected by
discussion, https://www.sba.gov/sites/default/files/ employee turnover-related costs as
advocacy/rfaguide_0512_0.pdf. beneficiaries of employment-based
ii. A Statement of the Significant Issues workers so they can advance in their three other open-access, free databases
Raised by the Public Comments in careers and progress in their of public and private entitiesManta,
Response to the Initial Regulatory occupations. As explained in the PRA, Cortera, and Guidestarto determine
Flexibility Analysis, a Statement of the completing the Supplement J requires the North American Industry
Assessment of the Agency of Such approximately 60 minutes. In the Initial Classification System (NAICS) code,
Issues, and a Statement of Any Changes Regulatory Flexibility Analysis, DHS revenue, and employee count for each
Made in the Proposed Rule as a Result examined the indirect impact of this entity.163 In order to determine the size
of Such Comments rule on small entities as this rule does of a business, DHS first classified each
DHS published the NPRM along with not directly impose costs on small entity by its NAICS code, and then used
the Initial Regulatory Flexibility entities. DHS recognizes that this rule SBA guidelines to note the requisite
Analysis (IRFA) on December 31, 2015 imposes indirect costs on small entities revenue or employee count threshold
(80 FR 81899) with the comment period because these provisions would affect for each entity. Some entities were
ending February 29, 2016. During the beneficiaries of employment-based classified as small based on their annual
60-day comment period, DHS received immigrant visa petitions. If those revenue and some by number of
27,979 comments from interested beneficiaries take certain actions in line employees.
individuals and organizations. DHS with the rule that provide greater
Using a 12-month period, from
received numerous comments that flexibility and job mobility, then there
September 2014 to August 2015, of data
referred to aspects of the economic would be an immediate indirect impact
on actual filings of employment-based
analysis presented with the NPRM. The on the current sponsoring U.S.
immigrant visa petitions, DHS collected
comments, however, did not result in employers. DHS reaffirms that the
internal data for each filing
revisions to the economic analysis in addition of Supplement J may
organization. Each entity may make
the final rule that are relevant to the negatively impact employers in the form
multiple filings. For instance, there
analysis of effects on small businesses, of employee turnover costs and some
were 101,245 employment-based
small organizations, and small additional burden.
immigrant visa petitions filed, but only
governmental jurisdictions presented in iii. The Response of the Agency to Any 23,284 unique entities that filed
this FRFA. DHS received few comments Comments Filed by the Chief Counsel petitions. DHS devised a methodology
that referred specifically to the IRFA. for Advocacy of the Small Business to conduct the small entity analysis
DHS addresses these comments below. Administration in Response to the
Commenters only indirectly based on a representative, random
Proposed Rule, and a Detailed sample of the potentially impacted
mentioned the IRFA by mentioning the
Statement of Any Change Made to the population. To achieve a 95 percent
impact of the form, Supplement J, on
Proposed Rule in the Final Rule as a confidence level and a 5 percent
potential employers who may be small
start-ups or small businesses. Result of the Comments confidence interval on a population of
Commenters suggested that many of No comments were filed by the Chief 23,284 entities, DHS used the standard
these small start-ups hire high-skilled Counsel for Advocacy of the Small statistical formula to determine that a
foreign workers to stay competitive in Business Administration. minimum sample size of 378 entities
high-technology industries in order to was necessary. DHS created a sample
iv. A Description of and an Estimate of size greater than the 378 minimum
compete globally, and they believed that
the Number of Small Entities to Which necessary in order to increase the
such hiring increased job opportunities
the Rule Will Apply or an Explanation likelihood that our matches would meet
for native-born U.S. citizens as well.
of Why No Such Estimate Is Available or exceed the minimum required
Commenters expressed concern that
Supplement J is an unnecessary burden, DHS conducted a statistically valid sample. Of the 514 entities sampled, 393
especially for small business owners sample analysis of employment-based instances resulted in entities defined as
and startups, and commented that it immigrant visa petitions to determine small. Of the 393 small entities, 290
will not help to increase job portability. the maximum potential number of small entities were classified as small by
DHS appreciates these viewpoints and entities indirectly affected by this rule revenue or number of employees. The
carefully considered the impact of when a high-skilled worker who has an remaining 103 entities were classified as
Supplement J throughout this approved employment-based immigrant small because information was not
rulemaking, especially to small entities. visa petition, and an application for found (either no petitioner name was
DHS reaffirms its belief expressed in the adjustment of status that has been found or no information was found in
RIA for the NPRM and again in the RIA pending for 180 days or more, ports to the databases). Table 3 shows the
for the final rule that Supplement J will another employer. DHS utilized a summary statistics and results of the
clarify the process to port to another job subscription-based online database of small entity analysis of Form I140
and increase flexibility to high-skilled U.S. entities, Hoovers Online, as well as petitions.
TABLE 3SUMMARY STATISTICS AND RESULTS OF SMALL ENTITY ANALYSIS OF FORM I140 PETITIONS
Proportion of
Parameter Quantity sample
(%)
Populationpetitions ............................................................................................................................................... 101,245

Populationunique entities ..................................................................................................................................... 23,284

Minimum Required Sample ..................................................................................................................................... 378
Selected Sample ...................................................................................................................................................... 514 100.0
Entities Classified as Not Small:
by revenue ........................................................................................................................................................ 99 19.2
163 The Hoovers Web site can be found at http:// found at http://www.manta.com/; and the Cortera Web site can be found at https://www.
www.hoovers.com/; The Manta Web site can be cortera.com/.
TABLE 3SUMMARY STATISTICS AND RESULTS OF SMALL ENTITY ANALYSIS OF FORM I140 PETITIONSContinued
Proportion of
Parameter Quantity sample
(%)
by number of employees .................................................................................................................................. 22 4.3

Entities Classified as Small:
by revenue ........................................................................................................................................................ 287 55.9
by number of employees .................................................................................................................................. 3 0.6
because no petitioner name found ................................................................................................................... 84 16.3
because no information found in databases .................................................................................................... 19 3.7
Total Number of Small Entities ................................................................................................................. 393 76.5
Source: USCIS analysis.
v. A Description of the Projected The amendments relating to the H1B are no other alternatives that DHS
Reporting, Recordkeeping and Other numerical cap exemptions may impact considered that would further limit or
Compliance Requirements of the Rule, some small entities by allowing them to shield small entities from the potential
Including an Estimate of the Classes of qualify for exemptions of the ACWIA of negative externalities and that would
Small Entities Which Will Be Subject to fee when petitioning for H1B still accomplish the goals of this
the Requirement and the Type of nonimmigrant workers. As DHS cannot regulation. To reiterate, the goals of this
Professional Skills Necessary for predict the numbers of entities these regulation include providing increased
Preparation of the Report or Record amendments will affect at this time, the flexibility and normal job progression
The amendments in this rule do not exact effect on small entities is not clear, for beneficiaries of approved
place direct requirements on small though some positive effect should be employment-based immigrant visa
entities that petition for workers. anticipated. petitions. To incorporate alternatives
However, if the principal beneficiaries that would limit such mobility for
vi. A Description of the Steps the beneficiaries that are employed or
of employment-based immigrant visa Agency Has Taken To Minimize the
petitions take advantage of certain sponsored by small entities would be
Significant Economic Impact on Small counterproductive to the goals of this
flexibility provisions herein (including Entities Consistent With the Stated
porting to new sponsoring employers or rule.
Objectives of Applicable Statutes,
pursuing employment authorization in Including a Statement of the Factual, C. Unfunded Mandates Reform Act of
cases involving compelling Policy, and Legal Reasons for Selecting 1995
circumstances), there could be increased the Alternative Adopted in the Final The Unfunded Mandate Reform Act of
turnover costs (employee replacement Rule and Why Each One of the Other 1995 (UMRA) is intended, among other
costs) for U.S. entities sponsoring the Significant Alternatives to the Rule things, to curb the practice of imposing
employment of those beneficiaries, Considered by the Agency Which Affect unfunded Federal mandates on state,
including costs of petitioning for new the Impact on Small Entities Was local, and tribal governments. Title II of
employees. While DHS has estimated Rejected UMRA requires each Federal agency to
28,309 individuals who are eligible to prepare a written statement assessing
port to new employment under section This rule does not impose direct costs the effects of any Federal mandate in a
204(j) of the INA, the Department was on small entities. Therefore, DHS has proposed or final agency rule that may
unable to predict how many will not proposed any measures to minimize result in a $100 million or more
actually do so. As mentioned earlier in direct effects on small entities. The final expenditure (adjusted annually for
the Executive Orders 12866 and 13563 rule may indirectly affect small entities inflation) in any one year by state, local,
analysis, a range of opportunity costs of because the provisions would affect and tribal governments, in the aggregate,
time to petitioners that prepare beneficiaries of employment-based or by the private sector. The value
Supplement J ($43.93 for a human immigrant visa petitions. If those equivalent of $100 million in 1995
resources specialist, $93.69 for an in- beneficiaries take actions in line with adjusted for inflation to 2014 levels by
house lawyer, or $160.43 for an certain proposals that provide greater the Consumer Price Index for All Urban
outsourced lawyer) are anticipated flexibility and job mobility, then there is Consumers is $155 million. This rule
depending on the total numbers of an immediate indirect impactan exceeds the $100 million expenditure
individuals who port. However, DHS is externalityto the current sponsoring threshold in the first year of
currently unable to determine the U.S. employers. DHS considered implementation (adjusted for inflation)
numbers of small entities who take on whether to exclude from the flexibility and therefore DHS is providing this
immigrant sponsorship of high-skilled and job mobility provisions those UMRA analysis.
workers waiting to adjust status based beneficiaries who were sponsored by
on petitions filed by original sponsoring U.S. employers that were considered 1. An Identification of the Provision of
employers. The estimates presented also small. However, because DHS limited Federal Law Under Which the Rule Is
do not represent employee turnover the eligibility for employment Being Promulgated
costs to original sponsoring employers, authorization to beneficiaries who are The authority of the Secretary of
but only represent paperwork costs. able to demonstrate compelling Homeland Security (Secretary) for these
Similarly, DHS is unable to predict the circumstances, and restricted the 204(j) regulatory amendments is found in
volume of principal beneficiaries of portability provisions to those seeking various sections of the INA, 8 U.S.C.
employment-based immigrant visa employment within the same or a 1101 et seq., ACWIA, AC21, and the
petitions who will pursue the option for similar occupational classification, DHS Homeland Security Act of 2002 (HSA),
employment authorization based on did not believe it was necessary to Public Law 107296, 116 Stat. 2135, 6
compelling circumstances. pursue this alternative proposal. There U.S.C. 101 et seq. General authority for
issuing the final rule is found in section 3. Estimates by the Agency, if and to the under Executive Orders 12866 and
103(a) of the INA, 8 U.S.C. 1103(a), Extent That the Agency Determines That 13563 on regulations.gov.
which authorizes the Secretary to Accurate Estimates Are Reasonably
E. Executive Order 13132 (Federalism)
administer and enforce the immigration Feasible of Future Compliance Costs of
and nationality laws, as well as section the Federal Mandate and Any This rule does not have substantial
102 of the HSA, 6 U.S.C. 112, which Disproportionate Budgetary Effects of direct effects on the states, on the
vests all of the functions of DHS in the the Federal Mandate Upon Any relationship between the National
Secretary and authorizes the Secretary Particular Regions of the Nation or Government and the states, or on the
to issue regulations. Further authority Particular State, Local, or Tribal distribution of power and
for the regulatory amendments in the Governments, Urban or Rural or Other responsibilities among the various
final rule is found in Section II, Subpart Types of Communities, or Particular levels of government. Therefore, in
B. Segments of the Private Sector accordance with section 6 of Executive
Order 13132, it is determined that this
2. A Qualitative and Quantitative DHS has provided compliance costs
rule does not have sufficient federalism
Assessment of the Anticipated Costs of the main provisions that may
implications to warrant the preparation
and Benefits of the Federal Mandate, indirectly trigger Federal mandates in
of a federalism summary impact
Including the Costs and Benefits to the full RIA discussion of each
statement.
State, Local, and Tribal Governments or provision published with this final rule
the Private Sector, as Well as the Effect as well as in the FRFA. DHS reiterates F. Executive Order 12988 (Civil Justice
of the Federal Mandate on Health, that state and private sector employers Reform)
Safety, and the Natural Environment make the cost-benefit decisions of This rule meets the applicable
whether to expend finances to petition standards set forth in sections 3(a) and
The two major provisions of this rule for foreign workers and that these 3(b)(2) of Executive Order 12988.
for economic analysis purposes provide provisions are not mandatory
job flexibility through INA 204(j) requirements. G. Paperwork Reduction Act
portability and job flexibility through Under the Paperwork Reduction Act
4. Estimates by the Agency of the Effect
employment authorization to a limited (PRA) of 1995, Public Law 10413,
on the National Economy, Such as the
number of employment-authorized Departments are required to submit to
Effect on Productivity, Economic
nonimmigrants in compelling the Office of Management and Budget
Growth, Full Employment, Creation of
circumstances. These provisions do not (OMB), for review and approval, any
Productive Jobs, and International
directly impose any additional Federal reporting requirements inherent in a
Competitiveness of United States Goods
mandates on state, local, and tribal rule. This final rule makes revisions to
and Services, if and to the Extent That
governments, in the aggregate, or by the the following information collections:
the Agency in Its Sole Discretion
private sector. However, employers who Determines That Accurate Estimates Are 1. The Application for Employment
petition on behalf of applicants could Reasonably Feasible and That Such Authorization, Form I765; and Form
potentially experience some employee Effect Is Relevant and Material I765 Work Sheet, Form I765WS, OMB
turnover costs should these applicants Control Number 16150040.
choose to obtain the compelling DHS has provided discussions of the Specifically, USCIS revises this
circumstances EAD or choose to port to effect of this rule on the economy in collection by revising the instructions to
another employer. DHS recognizes that Section Q of this final rule. Form I765 to include information for
these provisions could place additional 5. A Description of the Extent of the the newly amended group of applicants
burdens on the state and private sector Agencys Prior Consultation With (beneficiaries of approved Form I140
in these circumstances. DHS specifically Elected Representatives (Under Section petitions who are in the United States
considered the situation where a public 204) of the Affected State, Local, and in E3, H1B, H1B1, O1, or L1
institution of higher education filed a Tribal Governments nonimmigrant status, who do not have
petition on behalf of a high skilled immigrant visas immediately available
DHS has not consulted with elected
worker and that high skilled worker to them, and who demonstrate
representatives of the affected State,
utilized porting under section 204(j) of compelling circumstances justifying a
local, and tribal governments as the
the INA to move to another employer. grant of employment authorization)
Federal mandates imposed by this rule
The flexibilities provided as a result of are voluntary and DHS cannot predict eligible to apply for employment
this rule would place additional costs which States or private sector entities authorization under final 8 CFR
and burdens on the states in this will apply for these benefits in the 274a.12(c)(35). Their dependent spouses
scenario and other similar scenarios. future. and children who are present in the
However, DHS reiterates that these are United States in nonimmigrant status
not required immigration benefits. State D. Small Business Regulatory are also eligible to obtain employment
and private sector employers make the Enforcement Fairness Act of 1996 authorization under 8 CFR
cost-benefit decisions of whether to This final rule is a major rule as 274a.12(c)(36), provided that the
expend finances to petition for foreign defined by section 804 of the Small principal foreign national has been
workers. DHS presents the impacts of Business Regulatory Enforcement Act of granted employment authorization.
these provisions more fully in the RIA 1996. This rule will result in an annual USCIS is also amending Form I765 to
found with this final rule on effect on the economy of more than include Yes/No questions requiring
www.regulations.gov. $100 million in the first year only. For these applicants to disclose certain
DHS does not believe that this rule each subsequent year, the annual effect criminal convictions. USCIS estimates
will have any impact on health or on the economy will remain under $100 an upper-bound average of 213,164
safety. The impact of this rule on million. As small businesses may be respondents will request employment
environmental issues is discussed more impacted under this regulation, DHS authorization as a result of the changes
fully in Review under the National has prepared a Final Regulatory in this rule in the first 2 years. This
Environmental Policy Act (NEPA), Flexibility analysis. The RFA analysis average estimate is derived from a
Section Q, subpart 6 of this final rule. can be found with the analysis prepared maximum estimate of 361,766 new
respondents who may file applications 16150023. Specifically, USCIS is Immigrant Petition for Alien
for employment authorization creating a new Supplement J to Form Worker;
documents in year 1 and a maximum I485 to allow the applicant for Petition for Nonimmigrant Worker;
estimate of 64,561 respondents in year adjustment of status requesting Application to Register Permanent
2. USCIS averaged this estimate for new portability under section 204(j) of the Residence or Adjust Status.
I765 respondents over a 2-year period INA, and the U.S. employer offering the (3) Agency form number, if any, and
of time based on its request seeking a applicant a new permanent job offer, to the applicable component of the DHS
2-year approval of the form and its provide formal attestations regarding sponsoring the collection: Forms I765/
instructions from OMB. important aspects of the job offer. I765WS, I140, I129 and I485;
2. USCIS is revising the form and its Providing such attestations is an USCIS.
instructions and the estimate of total essential step to establish eligibility for (4) Affected public who will be asked
burden hours has increased due to the adjustment of status in any or required to respond, as well as a brief
addition of this new population of Form employment-based immigrant visa abstract:
I765 filers, and the increase of burden classification requiring a job offer, Form I765: Primary: Individuals or
hours associated with the collection of regardless of whether the applicant is households: This form was developed
biometrics from these applicants. making a portability request under for individuals to request employment
3. The Immigrant Petition for Alien section 204(j) or is seeking to adjust authorization and evidence of that
Worker, Form I140; OMB Control status based upon the same job that was employment authorization. USCIS is
Number 16150015. Specifically, USCIS offered in the underlying immigrant visa revising this form to add a new class of
is revising this information collection to petition. Through this new supplement, workers eligible to apply for
remove ambiguity regarding whether USCIS will collect required information employment authorization as the
information about the principal from U.S. employers offering a new beneficiary of a valid immigrant visa
beneficiarys dependent family members permanent job offer to a specific worker petition for classification under sections
should be entered on the Form I140 under section 204(j). Moreover, 203(b)(1), 203(b)(2) or 203(b)(3) of the
petition, by revising the word Supplement J will also be used by INA. Eligible applicants must be
requests to requires for clarification applicants who are not porting pursuant physically present in the United States
in the form instructions. USCIS is also to section 204(j) to confirm that the in E3, H1B, H1B1, O1, or L1
revising the instructions to remove the original job offer described in the Form
terms in duplicate in the second nonimmigrant status, and must
I140 petition is still bona fide and demonstrate that they face compelling
paragraph under the labor certification available to the applicant at the time the
section of the instructions because circumstances while they wait for their
applicant files the Form I485 immigrant visas to become available.
USCIS no longer requires uncertified application. Supplement J replaces the
Employment and Training Dependent spouses and children who
current Form I485 initial evidence are present in the United States in
Administration (ETA) Forms 9089 to be
requirement that an applicant must nonimmigrant status are also eligible to
submitted in duplicate. There is no
submit a letter on the letterhead of the apply provided that the principal has
change in the data being captured on the
petitioning U.S. employer that confirms been granted employment authorization.
information collection instrument, but
that the job offer on which the Form I Supporting documentation
there is a change to the estimated
140 petition is based is still available to demonstrating eligibility must be filed
annual burden hours as a result of
the applicant. with the application. The form
USCISs revised estimate of the number
of respondents for this collection of This supplement also serves as an instructions list examples of relevant
information. important anti-fraud measure, and it documentation.
4. The Petition for a Nonimmigrant allows USCIS to validate employers Form I140: Primary: Business or
Worker, Form I129, OMB Control extending new permanent job offers to other for-profit organizations, as well as
Number 16150009. USCIS is making individuals under section 204(j). USCIS not-for profit organizations. USCIS will
revisions to Form I129, specifically the estimates that approximately 28,309 use the information furnished on this
H1B Data Collection and Filing Fee new respondents will file Supplement J information collection to classify
Exemption Supplement and the as a result of the changes made by the individuals under sections 203(b)(1),
accompanying instructions, to rule. 203(b)(2) or 203(b)(3) of the INA.
correspond with revisions to the Additionally, USCIS is revising the Form I129: Primary: Business: This
regulatory definition of related or instructions to Form I485 to reflect the form is used by employers to petition
affiliated nonprofit entities for the implementation of Supplement J. The for workers to come to the United States
purposes of determining whether the Form I485 instructions are also being temporarily to perform services, labor,
petitioner is exempt from: (1) Payment revised to clarify that eligible applicants and training or to request extensions of
of the $750/$1,500 fee associated with need to file Supplement J to request job stay or changes in nonimmigrant status
the American Competitiveness and portability under section 204(j). There is for nonimmigrant workers. USCIS is
Workforce Improvement Act (ACWIA) no change to the estimated annual revising Form I129, specifically the
and (2) the statutory numerical burden hours as a result of this revision H1B Data Collection and Filing Fee
limitation on H1B visas (also known as as a result of the changes in this rule. Exemption Supplement, and the
the H1B cap). USCIS cannot predict accompanying instructions, to
Overview of This Information Collection
the number of new respondents that correspond with revisions to the
would file petitions for foreign workers (1) Type of Information Collection: regulatory definition of related or
as a result of the changes in this rule. Revision of a Currently Approved affiliated nonprofit entities for the
5. The Application to Register Collection. purposes of determining whether the
Permanent Residence or Adjust Status, (2) Title of the Forms/Collections petitioner is exempt from: (1) Payment
Form I485, including new Supplement of the $750/$1,500 fee associated with
J, Confirmation of Bona Fide Job Offer Application for Employment the American Competitiveness and
or Request for Job Portability under INA Authorization Document; Workforce Improvement Act (ACWIA),
Section 204(J), OMB Control Number Form I765 Work Sheet; and (2) the statutory numerical
limitation on H1B visas (also known as H1B and H1B1 Data Collection 8 CFR Part 245
the cap). and Filing Fee Exemption Aliens, Immigration, Reporting and
Form I485: Primary: Individuals or Supplement243,965 respondents at 1 recordkeeping requirements.
households: The information collected hour;
is used to determine eligibility to adjust L Classification Supplement to 8 CFR Part 274a
status under section 245 of the INA. The Form I12937,831 respondents at 1.34 Administrative practice and
instructions to Form I485, Application hours; procedure, Aliens, Employment,
to Register Permanent Residence or and P Classifications Supplement Penalties, Reporting and recordkeeping
Adjust Status, are being revised to to Form I12922,710 respondents at 1 requirements.
reflect the implementation of Form I hour;
Accordingly, DHS amends chapter I of
485 Supplement J, Confirmation of Bona Q1 Classification Supplement to
title 8 of the Code of Federal
Fide Job Offer or Request for Job Form I129155 respondents at .34
Regulations as follows:
Portability under INA Section 204(j) hours; and
(Supplement J). Supplement J will be R1 Classification Supplement to PART 204IMMIGRANT PETITIONS
used by individuals applying for Form I1296,635 respondents at 2.34
adjustment of status to lawful hours. 1. The authority citation for part 204
permanent resident on the basis of being Form I485: is revised to read as follows:
the principal beneficiary of an approved 697,811 respondents at 6.25 hours Authority: 8 U.S.C. 1101, 1103, 1151, 1153,
Form I140, Immigrant Petition for per response; 1154, 1182, 1184, 1186a, 1255, 1324a, 1641;
Alien Worker. Applicants will use 697,811 respondents related to 8 CFR part 2.
Supplement J to confirm that the job Biometrics services at 1.17 hours.
offer described in the Form I140 (6) An estimate of the total annual 2. Section 204.5 is amended by:
petition is still bona fide and available public burden (in hours) associated with a. Revising paragraphs (d), (e), and
to the applicant at the time the these collections: (n)(3); and
b. Adding paragraph (p).
applicant files the Form I485 Form I765/I765WS: 8,974,364
application. Supplement J is replacing The revisions and addition read as
hours.
follows:
the current Form I485 initial evidence Form I140: 230,217 hours.
requirement that an applicant must Form I129: 1,631,400 hours. 204.5 Petitions for employment-based
submit a letter on the letterhead of the Form I485: 5,238,100 hours. immigrants.
petitioning employer which confirms (7) An estimate of the annual public * * * * *
that the job offer on which the Form I burden (monetized) associated with (d) Priority date. The priority date of
140 petition is based is still available to these collections: any petition filed for classification
the applicant. Applicants will also use Form I765/I765WS: $649,521,330. under section 203(b) of the Act which
Supplement J when requesting job Form I140: $123,642,620. is accompanied by an individual labor
portability pursuant to section 204(j) of Form I129: $73,751,280. certification from the Department of
the INA. Supplement J will provide a Form I485: $239,349,173. Labor shall be the date the labor
standardized procedure to confirm that DHS has considered the public certification application was accepted
the job offer described in the Form I comments received in response to the for processing by any office of the
140 petition is still bona fide, or if NPRM, published in the Federal Department of Labor. The priority date
applicable to request job portability Register at 80 FR 81899 on December of any petition filed for a classification
pursuant to section 204(j) of the INA. 31, 2015. DHSs responses to these under section 203(b) of the Act which
(5) An estimate of the total annual comments appear in this final rule and does not require a labor certification
number of respondents and the amount in appendix to the supporting from the Department of Labor shall be
of time estimated for an average statements that accompany this rule and the date the completed, signed petition
respondent to respond: can be found in the docket. USCIS has (including all initial evidence and the
Form I765/I765WS: submitted the supporting statements to correct fee) is properly filed with
2,136,583 responses related to Form OMB as part of its request for the USCIS. The priority date of any petition
I765 at 3.42 hours per response; approval of the revised information filed for classification under section
250,000 responses related to Form collection instruments. 203(b) of the Act which is accompanied
I765WS at .50 hours per response;
405,067 responses related to List of Subjects by an application for Schedule A
Biometrics services at 1.17 hours; and designation shall be the date the
8 CFR Part 204 completed, signed petition (including
2,136,583 responses related to
Passport-Style Photographs at .50 hours Administrative practice and all initial evidence and the correct fee)
per response. procedure, Adoption and foster care, is properly filed with USCIS. The
Form I140: Immigration, Reporting and priority date of an alien who filed for
213,164 respondents at 1.08 hours recordkeeping requirements. classification as a special immigrant
per response. under section 203(b)(4) of the Act prior
8 CFR Part 205
Form I129: to October 1, 1991, and who is the
Form I129333,891 respondents Administrative practice and beneficiary of an approved petition for
at 2.34 hours; procedure, Immigration. special immigrant status after October 1,
E1/E2 Classification to Form I 1991, shall be the date the alien applied
8 CFR Part 214 for an immigrant visa or adjustment of

1294,760 respondents at .67 hours;
Trade Agreement Supplement to Administrative practice and status.
Form I1293,057 respondents at .67 procedure, Aliens, Cultural exchange (e) Retention of section 203(b)(1), (2),
hours; programs, Employment, Foreign or (3) priority date. (1) A petition
H Classification Supplement to officials, Health professions, Reporting approved on behalf of an alien under
Form I129255,872 respondents at 2 and recordkeeping requirements, sections 203(b)(1), (2), or (3) of the Act
hours; Students. accords the alien the priority date of the
approved petition for any subsequently (ii) An immigrant visa is not Department of State Visa Bulletin in
filed petition for any classification authorized for issuance to the principal effect on the date the renewal
under section 203(b)(1), (2), or (3) of the beneficiary based on his or her priority application is filed indicates immigrant
Act for which the alien may qualify. In date on the date the application for visas are authorized for issuance for the
the event that the alien is the employment authorization is filed; and applicable preference category and
beneficiary of multiple approved (iii) USCIS determines, as a matter of country of chargeability to individuals
petitions under section 203(b)(1), (2), or discretion, that the principal beneficiary with priority dates earlier than
(3) of the Act, the alien shall be entitled demonstrates compelling circumstances November 1, 2000, USCIS may grant a
to the earliest priority date. that justify the issuance of employment renewal to a principal beneficiary
(2) The priority date of a petition may authorization. whose priority date is on or between
not be retained under paragraph (e)(1) of (2) Eligibility of spouses and children. October 31, 1999 and October 31, 2001;
this section if at any time USCIS revokes The family members, as described in or
the approval of the petition because of: section 203(d) of the Act, of a principal (ii) He or she is a family member, as
(i) Fraud, or a willful beneficiary, who are in nonimmigrant described under paragraph (p)(2) of this
misrepresentation of a material fact; status at the time the principal section, of a principal beneficiary
(ii) Revocation by the Department of beneficiary applies for employment granted a renewal of employment
Labor of the approved permanent labor authorization under paragraph (p)(1) of authorization under paragraph (p)(3)(i)
certification that accompanied the this section, are eligible to apply for that remains valid, except that the
petition; employment authorization provided family member need not be maintaining
(iii) Invalidation by USCIS or the that the principal beneficiary has been nonimmigrant status at the time the
Department of State of the permanent granted employment authorization principal beneficiary applies for
labor certification that accompanied the under paragraph (p) of this section and renewal of employment authorization
petition; or such employment authorization has not under paragraph (p) of this section. A
(iv) A determination by USCIS that been terminated or revoked. Such family member may file an application
petition approval was based on a family members may apply for to renew employment authorization
material error. employment authorization concurrently concurrently with an application to
(3) A denied petition will not with the principal beneficiary, but renew employment authorization filed
establish a priority date. cannot be granted employment by the principal beneficiary or while
(4) A priority date is not transferable authorization until the principal such application by the principal
to another alien. beneficiary is so authorized. The beneficiary is pending, but the family
(5) A petition filed under section validity period of employment members renewal application cannot be
204(a)(1)(F) of the Act for an alien shall authorization granted to family approved unless the principal
remain valid with respect to a new members may not extend beyond the beneficiarys application is granted. The
employment offer as determined by validity period of employment validity period of a renewal of
USCIS under section 204(j) of the Act authorization granted to the principal employment authorization granted to
and 8 CFR 245.25. An alien will beneficiary. family members may not extend beyond
continue to be afforded the priority date (3) Eligibility for renewal of the validity period of the renewal of
of such petition, if the requirements of employment authorization. An alien employment authorization granted to
paragraph (e) of this section are met. may be eligible to renew employment the principal beneficiary.
* * * * * authorization granted under paragraph (4) Application for employment
(n) * * * (p) of this section, upon submission of authorization. To request employment
(3) Validity of approved petitions. a new application before the expiration authorization, an eligible applicant
Unless approval is revoked under of such employment authorization, if: described in paragraph (p)(1), (2), or (3)
section 203(g) or 205 of the Act, an (i) He or she is the principal of this section must file an application
employment-based petition is valid beneficiary of an approved immigrant for employment authorization (Form I
indefinitely. petition for classification under section 765), with USCIS, in accordance with 8
* * * * * 203(b)(1), 203(b)(2) or 203(b)(3) of the CFR 274a.13(a) and the form
(p) Eligibility for employment Act and either: instructions. Such applicant is subject
authorization in compelling (A) An immigrant visa is not to the collection of his or her biometric
circumstances(1) Eligibility of authorized for issuance to the principal information and the payment of any
principal alien. An individual who is beneficiary based on his or her priority biometric services fee as provided in the
the principal beneficiary of an approved date on the date the application for form instructions. Employment
immigrant petition for classification employment authorization, (Form I authorization under this paragraph may
under sections 203(b)(1), 203(b)(2) or 765) is filed; and USCIS determines, as be granted solely in 1-year increments.
203(b)(3) of the Act may be eligible to a matter of discretion that the principal (5) Ineligibility for employment
receive employment authorization, beneficiary demonstrates compelling authorization. An alien is not eligible
upon application, if: circumstances that justify the issuance for employment authorization,
(i) In the case of an initial request for of employment authorization; or including renewal of employment
employment authorization, the (B) The difference between the authorization, under this paragraph if
individual is in E3, H1B, H1B1, O principal beneficiarys priority date and the alien has been convicted of any
1, or L1 nonimmigrant status, the date upon which immigrant visas felony or two or more misdemeanors.
including the periods authorized by are authorized for issuance for the
214.1(l)(l) and (2), as well as any other principal beneficiarys preference PART 205REVOCATION OF
periods of admission authorized by this category and country of chargeability is APPROVAL OF PETITIONS
chapter before a validity period begins 1 year or less according to the
or after the expiration of a validity Department of State Visa Bulletin in 3. The authority citation for part 205
period, on the date the application for effect on the date the application for is revised to read as follows:
employment authorization (Form I765) employment authorization (Form I Authority: 8 U.S.C. 1101, 1103, 1151, 1153,
is filed; 765), is filed. For example, if the 1154, 1155, 1182, 1324a, and 1186a.
4. Section 205.1 is amended by 1305 and 1372; sec. 643, Pub. L. 104208, ii. Removing the period at the end of
revising paragraphs (a)(3)(iii)(C) and (D) 110 Stat. 3009708; Pub. L. 105277, 112 the paragraph and adding a semicolon
to read as follows: Stat. 2681641; Pub. L. 106313, 114 Stat. in its place;
12511255; Pub. L. 106386, 114 Stat. 1477 i. Adding paragraphs (h)(19)(iii)(D)
205.1 Automatic revocation. 1480; section 141 of the Compacts of Free
Association with the Federated States of
and (E);
(a) * * * j. Revising paragraph (h)(19)(v);
(3) * * * Micronesia and the Republic of the Marshall
Islands, and with the Government of Palau, k. Removing paragraph (h)(19)(vi);
(iii) * * * l. Redesignating paragraph (h)(19)(vii)
(C) In employment-based preference 48 U.S.C. 1901 note, and 1931 note,
respectively; 48 U.S.C. 1806; 8 CFR part 2. as paragraph (h)(19)(vi) and revising
cases, upon written notice of newly redesignated paragraph
withdrawal filed by the petitioner to any 6. Section 214.1 is amended by adding (h)(19)(vi); and
officer of USCIS who is authorized to paragraph (l) to read as follows: m. Adding paragraph (h)(20).
grant or deny petitions, where the The revisions and additions read as
withdrawal is filed less than 180 days 214.1 Requirements for admission,
extension, and maintenance of status. follows:
after approval of the employment-based
preference petition, unless an associated * * * * * 214.2 Special requirements for
adjustment of status application has (l) Period of stay. (1) An alien admission, extension, and maintenance of
been pending for 180 days or more. A admissible in E1, E2, E3, H1B, L status.
petition that is withdrawn 180 days or 1, or TN classification and his or her * * * * *
more after its approval, or 180 days or dependents may be admitted to the (h) * * *
more after the associated adjustment of United States or otherwise provided (2) * * *
status application has been filed, such status for the validity period of the (i) * * *
remains approved unless its approval is petition, or for a validity period (H) H1B portability. An eligible H
revoked on other grounds. If an otherwise authorized for the E1, E2, 1B nonimmigrant is authorized to start
employment-based petition on behalf of E3, and TN classifications, plus an concurrent or new employment under
an alien is withdrawn, the job offer of additional period of up to 10 days section 214(n) of the Act upon the filing,
the petitioning employer is rescinded before the validity period begins and 10 in accordance with 8 CFR 103.2(a), of a
and the alien must obtain a new days after the validity period ends. nonfrivolous H1B petition on behalf of
employment-based preference petition Unless authorized under 8 CFR 274a.12, such alien, or as of the requested start
in order to seek adjustment of status or the alien may not work except during date, whichever is later.
issuance of an immigrant visa as an the validity period. (1) Eligible H1B nonimmigrant. For
employment-based immigrant, unless (2) An alien admitted or otherwise H1B portability purposes, an eligible
eligible for adjustment of status under provided status in E1, E2, E3, H1B, H1B nonimmigrant is defined as an
section 204(j) of the Act and in H1B1, L1, O1 or TN classification alien:
accordance with 8 CFR 245.25. and his or her dependents shall not be (i) Who has been lawfully admitted
(D) Upon termination of the considered to have failed to maintain into the United States in, or otherwise
petitioning employers business less nonimmigrant status solely on the basis provided, H1B nonimmigrant status;
than 180 days after petition approval of a cessation of the employment on (ii) On whose behalf a nonfrivolous
under section 203(b)(1)(B), 203(b)(1)(C), which the aliens classification was H1B petition for new employment has
203(b)(2), or 203(b)(3) of the Act, unless based, for up to 60 consecutive days or been filed, including a petition for new
an associated adjustment of status until the end of the authorized validity employment with the same employer,
application has been pending for 180 period, whichever is shorter, once with a request to amend or extend the
days or more. If a petitioning employers during each authorized validity period. H1B nonimmigrants stay, before the
business terminates 180 days or more DHS may eliminate or shorten this 60- H1B nonimmigrants period of stay
after petition approval, or 180 days or day period as a matter of discretion. authorized by the Secretary of
more after an associated adjustment of Unless otherwise authorized under 8 Homeland Security expires; and
status application has been filed, the CFR 274a.12, the alien may not work (iii) Who has not been employed
petition remains approved unless its during such a period. without authorization in the United
approval is revoked on other grounds. If (3) An alien in any authorized period States from the time of last admission
a petitioning employers business described in paragraph (l) of this section through the filing of the petition for new
terminates the job offer of the may apply for and be granted an employment.
petitioning employer is rescinded and extension of stay under paragraph (c)(4) (2) Length of employment.
the beneficiary must obtain a new of this section or change of status under Employment authorized under
employment-based preference petition 8 CFR 248.1, if otherwise eligible. paragraph (h)(2)(i)(H) of this section
on his or her behalf in order to seek 7. Section 214.2 is amended by:
automatically ceases upon the
adjustment of status or issuance of an adjudication of the H1B petition
a. Adding paragraph (h)(2)(i)(H);
immigrant visa as an employment-based described in paragraph (h)(2)(i)(H)(1)(ii)
b. Revising paragraph (h)(4)(v)(C);
immigrant, unless eligible for of this section.
c. Adding paragraph (h)(8)(ii)(F);
adjustment of status under section 204(j) (3) Successive H1B portability
d. Removing the fifth sentence from petitions. (i) An alien maintaining
of the Act and in accordance with 8 CFR
paragraph (h)(9)(iv); authorization for employment under
245.25.
e. Revising paragraph (h)(13)(i)(A); paragraph (h)(2)(i)(H) of this section,
* * * * *
f. Adding paragraphs (h)(13)(iii)(C) whose status, as indicated on the

PART 214NONIMMIGRANT CLASSES through (E); Arrival-Departure Record (Form I94),
g. Revising paragraphs (h)(19)(i) has expired, shall be considered to be in
5. The authority citation for part 214 introductory text, (h)(19)(ii), and a period of stay authorized by the
continues to read as follows: (h)(19)(iii)(B). Secretary of Homeland Security for
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, h. In paragraph (h)(19)(iii)(C): purposes of paragraph (h)(2)(i)(H)(1)(ii)
1184, 1186a, 1187, 1221, 1281, 1282, 1301 i. Revising the second sentence; and of this section. If otherwise eligible
under paragraph (h)(2)(i)(H) of this (ii) The petitioner demonstrates, member, branch, cooperative, or
section, such alien may begin working through evidence from the state or local subsidiary; or
in a subsequent position upon the filing licensing authority, that the only (iv) The nonprofit entity has entered
of another H1B petition or from the obstacle to the issuance of a license to into a formal written affiliation
requested start date, whichever is later, the beneficiary is the lack of a Social agreement with an institution of higher
notwithstanding that the previous H1B Security number, a lack of employment education that establishes an active
petition upon which employment is authorization in the United States, or a working relationship between the
authorized under paragraph (h)(2)(i)(H) failure to meet a similar technical nonprofit entity and the institution of
of this section remains pending and requirement that precludes the issuance higher education for the purposes of
regardless of whether the validity period of the license to an individual who is research or education, and a
of an approved H1B petition filed on not yet in H1B status. The petitioner fundamental activity of the nonprofit
the aliens behalf expired during such must demonstrate that the alien is fully entity is to directly contribute to the
pendency. qualified to receive the state or local research or education mission of the
(ii) A request to amend the petition or license in all other respects, meaning institution of higher education.
for an extension of stay in any that all educational, training, (3) An entity is considered a
successive H1B portability petition experience, and other substantive nonprofit entity if it meets the
cannot be approved if a request to requirements have been met. The alien definition described at paragraph
amend the petition or for an extension must have filed an application for the (h)(19)(iv) of this section. Nonprofit
of stay in any preceding H1B license in accordance with applicable research organization and
portability petition in the succession is state and local rules and procedures, governmental research organization
denied, unless the beneficiarys provided that state or local rules or have the same definitions as described
previously approved period of H1B procedures do not prohibit the alien at paragraph (h)(19)(iii)(C) of this
status remains valid. from filing the license application section.
(iii) Denial of a successive portability without provision of a Social Security (4) An H1B beneficiary who is not
petition does not affect the ability of the number or proof of employment directly employed by a qualifying
H1B beneficiary to continue or resume authorization or without meeting a institution, organization or entity
working in accordance with the terms of similar technical requirement. identified in section 214(g)(5)(A) or (B)
an H1B petition previously approved (3) An H1B petition filed on behalf of the Act shall qualify for an exemption
on behalf of the beneficiary if that of an alien who has been previously under such section if the H1B
petition approval remains valid and the accorded H1B classification under beneficiary will spend the majority of
beneficiary has maintained H1B status paragraph (h)(4)(v)(C)(2) of this section his or her work time performing job
or been in a period of authorized stay may not be approved unless the duties at a qualifying institution,
and has not been employed in the petitioner demonstrates that the alien organization or entity and those job
United States without authorization. has obtained the required license, is duties directly and predominately
* * * * * seeking to employ the alien in a position further the essential purpose, mission,
(4) * * * requiring a different license, or the alien objectives or functions of the qualifying
(v) * * * will be employed in that occupation in institution, organization or entity,
(C) Duties without licensure. (1) In a different location which does not namely, either higher education,
certain occupations which generally require a state or local license to fully nonprofit research or government
require licensure, a state may allow an perform the duties of the occupation. research. The burden is on the H1B
individual without licensure to fully petitioner to establish that there is a
* * * * *
practice the occupation under the (8) * * * nexus between the duties to be
supervision of licensed senior or (ii) * * * performed by the H1B beneficiary and
supervisory personnel in that (F) Cap exemptions under sections the essential purpose, mission,
occupation. In such cases, USCIS shall 214(g)(5)(A) and (B) of the Act. An alien objectives or functions of the qualifying
examine the nature of the duties and the is not subject to the numerical institution, organization or entity.
level at which they are performed, as limitations identified in section (5) If cap-exempt employment ceases,
well as evidence provided by the 214(g)(1)(A) of the Act if the alien and if the alien is not the beneficiary of
petitioner as to the identity, physical qualifies for an exemption under section a new cap-exempt petition, then the
location, and credentials of the 214(g)(5) of the Act. For purposes of alien will be subject to the cap if not
individual(s) who will supervise the section 214(g)(5)(A) and (B) of the Act: previously counted within the 6-year
alien, and evidence that the petitioner is (1) Institution of higher education period of authorized admission to
complying with state requirements. If has the same definition as described at which the cap-exempt employment
the facts demonstrate that the alien section 101(a) of the Higher Education applied. If cap-exempt employment
under supervision will fully perform the Act of 1965 (20 U.S.C. 1001(a)). converts to cap-subject employment
duties of the occupation, H (2) A nonprofit entity shall be subject to the numerical limitations in
classification may be granted. considered to be related to or affiliated section 214(g)(1)(A) of the Act, USCIS
(2) An H1B petition filed on behalf with an institution of higher education may revoke the petition authorizing
of an alien who does not have a valid if it satisfies any one of the following such employment consistent with
state or local license, where a license is conditions: paragraph (h)(11)(iii) of this section.
otherwise required to fully perform the (i) The nonprofit entity is connected (6) Concurrent H1B employment in a
duties in that occupation, may be to or associated with an institution of cap-subject position of an alien that
approved for a period of up to 1 year if: higher education through shared qualifies for an exemption under section
(i) The license would otherwise be ownership or control by the same board 214(g)(5)(A) or (B) of the Act shall not
issued provided the alien was in or federation; subject the alien to the numerical
possession of a valid Social Security (ii) The nonprofit entity is operated by limitations in section 214(g)(1)(A) of the
number, was authorized for an institution of higher education; Act. When petitioning for concurrent
employment in the United States, or met (iii) The nonprofit entity is attached to cap-subject H1B employment, the
a similar technical requirement; and an institution of higher education as a petitioner must demonstrate that the H
1B beneficiary is employed in valid H and the reason for the aliens absence. (ii) Deny the immigrant visa petition,
1B status under a cap exemption under Accordingly, such remaining time may or, if approved, revoke such approval;
section 214(g)(5)(A) or (B) of the Act, the be recaptured in a subsequent H1B (iii) Deny or approve the aliens
beneficiarys employment with the cap- petition on behalf of the alien, at any application for an immigrant visa or
exempt employer is expected to time before the alien uses the full period application to adjust status to lawful
continue after the new cap-subject of H1B admission described in section permanent residence; or
petition is approved, and the beneficiary 214(g)(4) of the Act. (iv) Administratively or otherwise
can reasonably and concurrently (1) It is the H1B petitioners burden close the application for permanent
perform the work described in each to request and demonstrate the specific labor certification, immigrant visa
employers respective positions. amount of time for recapture on behalf petition, or application to adjust status.
(i) Validity of a petition for concurrent of the beneficiary. The beneficiary may (3) No final decision while appeal
cap-subject H1B employment approved provide appropriate evidence, such as available or pending. A decision to deny
under paragraph (h)(8)(ii)(F)(6) of this copies of passport stamps, Arrival- or revoke an application for labor
section cannot extend beyond the Departure Records (Form I94), or certification, or to deny or revoke the
period of validity specified for the cap- airline tickets, together with a chart, approval of an immigrant visa petition,
exempt H1B employment. indicating the dates spent outside of the will not be considered final under
(ii) If H1B employment subject to a United States, and referencing the paragraph (h)(13)(iii)(D)(2)(i) or (ii) of
cap exemption under section relevant independent documentary this section during the period
214(g)(5)(A) or (B) of the Act is evidence, when seeking to recapture the authorized for filing an appeal of the
terminated by a petitioner, or otherwise aliens time spent outside the United decision, or while an appeal is pending.
ends before the end of the validity States. Based on the evidence provided, (4) Substitution of beneficiaries. An
period listed on the approved petition USCIS may grant all, part, or none of the alien who has been replaced by another
recapture period requested. alien, on or before July 16, 2007, as the
filed on the aliens behalf, the alien who
(2) If the beneficiary was previously beneficiary of an approved permanent
is concurrently employed in a cap-
counted toward the H1B numerical cap labor certification may not rely on that
subject position becomes subject to the
under section 214(g)(1) of the Act with permanent labor certification to
numerical limitations in section
respect to the 6-year maximum period of establish eligibility for H1B status
214(g)(1)(A) of the Act, unless the alien
H1B admission from which recapture based on this lengthy adjudication delay
was previously counted with respect to
is sought, the H1B petition seeking to exemption. Except for a substitution of
the 6-year period of authorized H1B
recapture a period of stay as an H1B a beneficiary that occurred on or before
admission to which the petition applies
nonimmigrant will not subject the July 16, 2007, an alien establishing
or another exemption applies. If such an
beneficiary to the H1B numerical cap, eligibility for this lengthy adjudication
alien becomes subject to the numerical
whether or not the alien has been delay exemption based on a pending or
limitations in section 214(g)(1)(A) of the approved labor certification must be the
Act, USCIS may revoke the cap-subject physically outside the United States for
1 year or more and would be otherwise named beneficiary listed on the
petition described in paragraph permanent labor certification.
(h)(8)(ii)(F)(6) of this section consistent eligible for a new period of admission
under such section of the Act. An H1B (5) Advance filing. A petitioner may
with paragraph (h)(11)(iii) of this file an H1B petition seeking a lengthy
section. petitioner may either seek such
recapture on behalf of the alien or, adjudication delay exemption under
* * * * * paragraph (h)(13)(iii)(D) of this section
consistent with paragraph (h)(13)(iii) of
(13) * * * within 6 months of the requested H1B
this section, seek a new period of
(i) * * * start date. The petition may be filed
admission on behalf of the alien under
(A) Except as set forth in 8 CFR before 365 days have elapsed since the
section 214(g)(1) of the Act.
214.1(l) with respect to H1B labor certification application or
(D) Lengthy adjudication delay
beneficiaries and their dependents and immigrant visa petition was filed with
exemption from 214(g)(4) of the Act. (1)
paragraph (h)(5)(viii)(B) of this section the Department of Labor or USCIS,
An alien who is in H1B status or has
with respect to H2A beneficiaries, a respectively, provided that the
previously held H1B status is eligible
beneficiary shall be admitted to the application for labor certification or
for H1B status beyond the 6-year
United States for the validity period of immigrant visa petition must have been
limitation under section 214(g)(4) of the
the petition, plus a period of up to 10 filed at least 365 days prior to the date
Act, if at least 365 days have elapsed
days before the validity period begins the period of admission authorized
since:
and 10 days after the validity period (i) The filing of a labor certification under this exemption will take effect.
ends. The beneficiary may not work with the Department of Labor on the The petitioner may request any time
except during the validity period of the aliens behalf, if such certification is remaining to the beneficiary under the
petition. required for the alien to obtain status maximum period of admission
* * * * * under section 203(b) of the Act; or described at section 214(g)(4) of the Act
(iii) * * * (ii) The filing of an immigrant visa along with the exemption request, but in
(C) Calculating the maximum H1B petition with USCIS on the aliens no case may the approved H1B period
admission period. Time spent behalf to accord classification under of validity exceed the limits specified by
physically outside the United States section 203(b) of the Act. paragraph (h)(9)(iii) of this section.
exceeding 24 hours by an alien during (2) H1B approvals under paragraph Time remaining to the beneficiary under
the validity of an H1B petition that was (h)(13)(iii)(D) of this section may be the maximum period of admission
approved on the aliens behalf shall not granted in up to 1-year increments until described at section 214(g)(4) of the Act
be considered for purposes of either the approved permanent labor may include any request to recapture
calculating the aliens total period of certification expires or a final decision unused H1B, L1A, or L1B time spent
authorized admission under section has been made to: outside of the United States.
214(g)(4) of the Act, regardless of (i) Deny the application for permanent (6) Petitioners seeking exemption. The
whether such time meaningfully labor certification, or, if approved, to H1B petitioner need not be the
interrupts the aliens stay in H1B status revoke or invalidate such approval; employer that filed the application for
labor certification or immigrant visa such visa unavailability as of the date Worker (Form I129) must include the
petition that is used to qualify for this the H1B petition is filed with USCIS. additional American Competitiveness
exemption. (1) Validity periods. USCIS may grant and Workforce Improvement Act
(7) Subsequent exemption approvals validity periods for petitions approved (ACWIA) fee referenced in 103.7(b)(1)
after the 7th year. The qualifying labor under this paragraph in increments of of this chapter, if the petition is filed for
certification or immigrant visa petition up to 3 years for as long as the alien any of the following purposes:
need not be the same as that used to remains eligible for this exemption. * * * * *
qualify for the initial exemption under (2) H1B approvals under paragraph (ii) A petitioner must submit with the
paragraph (h)(13)(iii)(D) of this section. (h)(13)(iii)(E) of this section may be petition the ACWIA fee, and any other
(8) Aggregation of time not permitted. granted until a final decision has been applicable fees, in accordance with
A petitioner may not aggregate the made to: 103.7 of this chapter, and form
number of days that have elapsed since (i) Revoke the approval of the instructions. Payment of all applicable
the filing of one labor certification or immigrant visa petition; or fees must be made at the same time, but
immigrant visa petition with the (ii) Approve or deny the aliens the petitioner may submit separate
number of days that have elapsed since application for an immigrant visa or checks. USCIS will accept payment of
the filing of another such application or application to adjust status to lawful the ACWIA fee only from the United
petition to meet the 365-day permanent residence. States employer or its representative of
requirement. (3) Current H1B status not required. record, as defined in 8 CFR 103.2(a) and
(9) Exemption eligibility. Only a An alien who is not in H1B status at 8 CFR part 292.
principal beneficiary of a nonfrivolous the time the H1B petition on his or her (iii) * * *
labor certification application or behalf is filed, including an alien who (B) An affiliated or related nonprofit
immigrant visa petition filed on his or is not in the United States, may seek an entity. A nonprofit entity shall be
her behalf may be eligible under exemption of the 6-year limitation considered to be related to or affiliated
paragraph (h)(13)(iii)(D) of this section under 214(g)(4) of the Act under this with an institution of higher education
for an exemption to the maximum clause, if otherwise eligible. if it satisfies any one of the following
period of admission under section conditions:
(4) Subsequent petitioners may seek
214(g)(4) of the Act. (1) The nonprofit entity is connected
exemptions. The H1B petitioner need
(10) Limits on future exemptions from to or associated with an institution of
the lengthy adjudication delay. An alien not be the employer that filed the
immigrant visa petition that is used to higher education through shared
is ineligible for the lengthy adjudication ownership or control by the same board
delay exemption under paragraph qualify for this exemption. An H1B
petition may be approved under or federation;
(h)(13)(iii)(D) of this section if the alien (2) The nonprofit entity is operated by
is the beneficiary of an approved paragraph (h)(13)(iii)(E) of this section
with respect to any approved immigrant an institution of higher education;
petition under section 203(b) of the Act (3) The nonprofit entity is attached to
and fails to file an adjustment of status visa petition, and a subsequent H1B
an institution of higher education as a
application or apply for an immigrant petition may be approved with respect
member, branch, cooperative, or
visa within 1 year of an immigrant visa to a different approved immigrant visa
subsidiary; or
being authorized for issuance based on petition on behalf of the same alien. (4) The nonprofit entity has entered
his or her preference category and (5) Advance filing. A petitioner may into a formal written affiliation
country of chargeability. If the accrual of file an H1B petition seeking a per- agreement with an institution of higher
such 1-year period is interrupted by the country limitation exemption under education that establishes an active
unavailability of an immigrant visa, a paragraph (h)(13)(iii)(E) of this section working relationship between the
new 1-year period shall be afforded within 6 months of the requested H1B nonprofit entity and the institution of
when an immigrant visa again becomes start date. The petitioner may request higher education for the purposes of
immediately available. USCIS may any time remaining to the beneficiary research or education, and a
excuse a failure to file in its discretion under the maximum period of fundamental activity of the nonprofit
if the alien establishes that the failure to admission described in section 214(g)(4) entity is to directly contribute to the
apply was due to circumstances beyond of the Act along with the exemption research or education mission of the
his or her control. The limitations request, but in no case may the H1B institution of higher education;
described in this paragraph apply to any approval period exceed the limits (C) * * * A governmental research
approved immigrant visa petition under specified by paragraph (h)(9)(iii) of this organization is a federal, state, or local
section 203(b) of the Act, including section. entity whose primary mission is the
petitions withdrawn by the petitioner or (6) Exemption eligibility. Only the performance or promotion of basic
those filed by a petitioner whose principal beneficiary of an approved research and/or applied research. * * *
business terminates 180 days or more immigrant visa petition for classification (D) A primary or secondary education
after approval. under section 203(b)(1), (2), or (3) of the institution; or
(E) Per-country limitation exemption Act may be eligible under paragraph (E) A nonprofit entity which engages
from section 214(g)(4) of the Act. An (h)(13)(iii)(E) of this section for an in an established curriculum-related
alien who currently maintains or exemption to the maximum period of clinical training of students registered at
previously held H1B status, who is the admission under section 214(g)(4) of the an institution of higher education.
beneficiary of an approved immigrant Act. * * * * *
visa petition for classification under * * * * * (v) Filing situations where the
section 203(b)(1), (2), or (3) of the Act, (19) * * * American Competitiveness and
and who is eligible to be granted that (i) A United States employer (other Workforce Improvement Act of 1998
immigrant status but for application of than an exempt employer defined in (ACWIA) fee is not required. The
the per country limitation, is eligible for paragraph (h)(19)(iii) of this section, or ACWIA fee is not required if:
H1B status beyond the 6-year an employer filing a petition described (A) The petition is an amended H1B
limitation under section 214(g)(4) of the in paragraph (h)(19)(v) of this section) petition that does not contain any
Act. The petitioner must demonstrate who files a Petition for Nonimmigrant requests for an extension of stay;
(B) The petition is an H1B petition 9. Revise 245.15(n)(2) to read as Supplement J, with any supporting
filed for the sole purpose of correcting follows: material and credible documentary
a Service error; or evidence, in accordance with the form
245.15 Adjustment of status of certain instructions that:
(C) The petition is the second or Haitian nationals under the Haitian Refugee
subsequent request for an extension of (1) The employment offer by the
Immigrant Fairness Act of 1998 (HRIFA).
stay filed by the employer regardless of petitioning employer is continuing; or
* * * * * (2) Under section 204(j) of the Act, the
when the first extension of stay was (n) * * *
filed or whether the ACWIA fee was applicant has a new offer of
(2) Adjudication and issuance. employment from the petitioning
paid on the initial petition or the first Employment authorization may not be
extension of stay. employer or a different U.S. employer,
issued to an applicant for adjustment of or a new offer based on self-
(vi) ACWIA fee exemption evidence. status under section 902 of HRIFA until
(A) Employer claiming to be exempt. An employment, in the same or a similar
the adjustment application has been occupational classification as the
employer claiming to be exempt from pending for 180 days, unless USCIS
the ACWIA fee must file a Petition for employment offered under the
verifies that DHS records contain qualifying petition, provided that:
Nonimmigrant Worker (Form I129), in evidence that the applicant meets the
accordance with the form instructions, (i) The aliens application to adjust
criteria set forth in section 902(b) or status based on a qualifying petition has
including supporting evidence 902(d) of HRIFA, and determines that
establishing that it meets one of the been pending for 180 days or more; and
there is no indication that the applicant (ii) The qualifying immigrant visa
exemptions described at paragraph is clearly ineligible for adjustment of petition:
(h)(19)(iii) of this section. A United status under section 902 of HRIFA, in (A) Has already been approved; or
States employer claiming an exemption which case USCIS may approve the (B) Is pending when the beneficiary
from the ACWIA fee on the basis that it application for employment notifies USCIS of a new job offer 180
is a non-profit research organization authorization, and issue the resulting days or more after the date the aliens
must submit evidence that it has tax document, immediately upon such adjustment of status application was
exempt status under the Internal verification. If USCIS fails to adjudicate filed, and the petition is subsequently
Revenue Code of 1986, section 501(c)(3), the application for employment approved:
(c)(4) or (c)(6), 26 U.S.C. 501(c)(3), (c)(4) authorization upon the expiration of the (1) Adjudication of the pending
or (c)(6). All other employers claiming 180-day waiting period, or within 90 petition shall be without regard to the
an exemption must submit a statement days of the filing of application for requirement in 8 CFR 204.5(g)(2) to
describing why the organization or employment authorization, whichever continuously establish the ability to pay
entity is exempt. comes later, the applicant shall be the proffered wage after filing and until
(B) Exempt filing situations. Any non- eligible for an employment the beneficiary obtains lawful
exempt employer who claims that the authorization document. Nothing in this permanent residence; and
ACWIA fee does not apply with respect section shall preclude an applicant for (2) The pending petition will be
to a particular filing for one of the adjustment of status under HRIFA from approved if it was eligible for approval
reasons described in paragraph being granted an initial employment at the time of filing and until the aliens
(h)(19)(v) of this section must indicate authorization or an extension of adjustment of status application has
why the ACWIA fee is not required. employment authorization under any been pending for 180 days, unless
(20) Retaliatory action claims. If other provision of law or regulation for approval of the qualifying immigrant
credible documentary evidence is which the applicant may be eligible. visa petition at the time of adjudication
provided in support of a petition * * * * * is inconsistent with a requirement of the
seeking an extension of H1B stay in or 10. Add 245.25 to read as follows:
Act or another applicable statute; and
change of status to another classification (iii) The approval of the qualifying
indicating that the beneficiary faced 245.25 Adjustment of status of aliens petition has not been revoked.
retaliatory action from his or her with approved employment-based (3) In all cases, the applicant and his
employer based on a report regarding a immigrant visa petitions; validity of petition or her intended employer must
violation of that employers labor and offer of employment. demonstrate the intention for the
condition application obligations under (a) Validity of petition for continued applicant to be employed under the
section 212(n)(2)(C)(iv) of the Act, eligibility for adjustment of status. An continuing or new employment offer
USCIS may consider a loss or failure to alien who has a pending application to (including self-employment) described
maintain H1B status by the beneficiary adjust status to that of a lawful in paragraphs (a)(1) and (2) of this
related to such violation as due to, and permanent resident based on an section, as applicable, within a
commensurate with, extraordinary approved employment-based immigrant reasonable period upon the applicants
circumstances as defined by visa petition filed under section grant of lawful permanent resident
214.1(c)(4) and 8 CFR 248.1(b). 204(a)(1)(F) of the Act on the applicants status.
* * * * * behalf must have a valid offer of (b) Definition of same or similar
employment based on a valid petition at occupational classification. The term
PART 245ADJUSTMENT OF STATUS the time the application to adjust status same occupational classification
TO THAT OF PERSON ADMITTED FOR is filed and at the time the aliens means an occupation that resembles in
PERMANENT RESIDENCE application to adjust status is every relevant respect the occupation
adjudicated, and the applicant must for which the underlying employment-
8. The authority citation for part 245 intend to accept such offer of based immigrant visa petition was
continues to read as follows: employment. Prior to a final approved. The term similar
Authority: 8 U.S.C. 1101, 1103, 1182,
administrative decision on an occupational classification means an
1255; Pub. L. 105100, section 202, 111 Stat. application to adjust status, USCIS may occupation that shares essential
2160, 2193; Pub. L. 105277, section 902, 112 require that the applicant demonstrate, qualities or has a marked resemblance
Stat. 2681; Pub. L. 110229, tit. VII, 122 Stat. or the applicant may affirmatively or likeness with the occupation for
754; 8 CFR part 2. demonstrate to USCIS, on Form I485 which the underlying employment-
based immigrant visa petition was c. Adding paragraphs (c)(35) and (36). employment authorization, will be
approved. The additions read as follows: automatically extended for an
additional period not to exceed 180
PART 274aCONTROL OF 274a.12 Classes of aliens authorized to
accept employment.
days from the date of such documents
EMPLOYMENT OF ALIENS and such employment authorizations
* * * * * expiration if a request for renewal on a
11. The authority citation for part (b) * * * form designated by USCIS is:
274a continues to read as follows: (9) * * * In the case of a
(i) Properly filed as provided by form
Authority: 8 U.S.C. 1101, 1103, 1324a; 48 nonimmigrant with H1B status,
instructions before the expiration date
U.S.C. 1806; 8 CFR part 2. employment authorization will
shown on the face of the Employment
automatically continue upon the filing
12. Amend 274a.2 by revising Authorization Document, or during the
of a qualifying petition under 8 CFR
paragraph (b)(1)(vii) to read as follows: filing period described in the applicable
214.2(h)(2)(i)(H) until such petition is
Federal Register notice regarding
274a.2 Verification of identity and adjudicated, in accordance with section
procedures for obtaining Temporary
employment authorization. 214(n) of the Act and 8 CFR
Protected Status-related EADs;
* * * * * 214.2(h)(2)(i)(H);
(ii) Based on the same employment
(b) * * * * * * * * authorization category as shown on the
(1) * * * (c) * * * face of the expiring Employment
(vii) If an individuals employment (35) An alien who is the principal
Authorization Document or is for an
authorization expires, the employer, beneficiary of a valid immigrant petition
individual approved for Temporary
recruiter or referrer for a fee must under section 203(b)(1), 203(b)(2) or
Protected Status whose EAD was issued
reverify on the Form I9 to reflect that 203(b)(3) of the Act described as eligible
pursuant to 8 CFR 274a.12(c)(19); and
the individual is still authorized to work for employment authorization in 8 CFR
(iii) Based on a class of aliens whose
in the United States; otherwise, the 204.5(p).
(36) A spouse or child of a principal eligibility to apply for employment
individual may no longer be employed, authorization continues
recruited, or referred. Reverification on beneficiary of a valid immigrant petition
under section 203(b)(1), 203(b)(2) or notwithstanding expiration of the
the Form I9 must occur not later than Employment Authorization Document
the date work authorization expires. If 203(b)(3) of the Act described as eligible
for employment authorization in 8 CFR and is based on an employment
an Employment Authorization authorization category that does not
Document (Form I766) as described in 204.5(p).
require adjudication of an underlying
274a.13(d) was presented for 14. Amend 274a.13 by:
application or petition before
completion of the Form I9 in a. Revising paragraph (a) introductory
adjudication of the renewal application,
combination with a Notice of Action text;
b. Removing the first sentence of
including aliens described in 8 CFR
(Form I797C), stating that the original 274a.12(a)(12) granted Temporary
Employment Authorization Document paragraph (a)(1); and
c. Revising paragraph (d).
Protected Status and pending applicants
has been automatically extended for up for Temporary Protected Status who are
to 180 days, reverification applies upon The revisions read as follows:
issued an EAD under 8 CFR
the expiration of the automatically 274a.13 Application for employment 274a.12(c)(19), as may be announced on
extended validity period under authorization. the USCIS Web site.
274a.13(d) and not upon the (a) Application. An alien requesting (2) Terms and conditions. Any
expiration date indicated on the face of employment authorization or an extension authorized under this
the individuals Employment Employment Authorization Document paragraph (d) shall be subject to any
Authorization Document. In order to (Form I766), or both, may be required conditions and limitations noted in the
reverify on the Form I9, the employee to apply on a form designated by USCIS immediately preceding employment
or referred individual must present a with any prescribed fee(s) in accordance authorization.
document that either shows continuing with the form instructions. An alien (3) Termination. The period
employment eligibility or is a new grant may file such request concurrently with authorized by paragraph (d)(1) of this
of work authorization. The employer or a related benefit request that, if granted, section will automatically terminate the
the recruiter or referrer for a fee must would form the basis for eligibility for earlier of up to 180 days after the
review this document, and if it appears employment authorization, only to the expiration date of the Employment
to be genuine and relate to the extent permitted by the form Authorization Document (Form I766),
individual, reverify by noting the instructions or as announced by USCIS or upon issuance of notification of a
documents identification number and on its Web site. decision denying the renewal request.
expiration date, if any, on the Form I * * * * * Nothing in paragraph (d) of this section
9 and signing the attestation by a (d) Renewal application(1) will affect DHSs ability to otherwise
handwritten signature or electronic Automatic extension of Employment terminate any employment
signature in accordance with paragraph Authorization Documents. Except as authorization or Employment
(i) of this section. otherwise provided in this chapter or by Authorization Document, or extension
* * * * * law, notwithstanding 8 CFR period for such employment or
13. Amend 274a.12 by: 274a.14(a)(1)(i), the validity period of an document, by written notice to the
a. Adding a sentence to the end of expiring Employment Authorization applicant, by notice to a class of aliens
paragraph (b)(9); Document (Form I766) and, for aliens published in the Federal Register, or as
b. Adding and reserving paragraphs who are not employment authorized provided by statute or regulation
(c)(27) through (34); and incident to status, also the attendant including 8 CFR 274a.14.
(4) Unexpired Employment is considered unexpired when requirements of paragraph (d)(1) of this
Authorization Documents. An combined with a Notice of Action (Form section have been met.
Employment Authorization Document I797C), which demonstrates that the Jeh Charles Johnson,
(Form I766) that has expired on its face
Secretary.
[FR Doc. 201627540 Filed 111716; 8:45 am]
BILLING CODE 911197P

Nov18 2016-27540

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82398 Federal Register / Vol. 81, No.

223 / Friday, November 18, 2016 / Rules and Regulations

DEPARTMENT OF HOMELAND Table of Contents iii. Changing the Scope of Proposed

v. Impose Additional Requirements To iii. Comments Suggesting Additional FY Fiscal Year

3 In this final rule, the word final before a

rulemaking on regulations.gov. The table below provides a summary of the

TABLE 1SUMMARY OF PROVISIONS AND IMPACTS

adjust to LPR status in the United States.

TABLE 1SUMMARY OF PROVISIONS AND IMPACTSContinued

to fully practice the relevant occupation under the su- Qualitative:

TABLE 1SUMMARY OF PROVISIONS AND IMPACTSContinued

May minimally increase time burden for the petitioner

accreditation standards of such an agency or Consolidation of Guidance Concerning Unlawful

DHS also includes revised definitions of 2. Public Comments and Responses

24 The four grounds are (i) fraud, or a willful

misrepresentation of a material fact; (ii) revocation

has been approved, no matter the amount of time

petition). In this and similar instances when the

the adjudication of porting requests. positions. In contrast, another Supplement J requirement as a

38 DHS notes that the RIA in this rulemaking

specialists, in-house attorneys, and other attorneys.

41 See Memo from Jeh Charles Johnson, Secretary

disability and genetic information. More

I131, Application for Travel Document, available

visa extension or change of status, or individuals whose employment ends

viii. Employment Authorization During nonimmigrant status to port to H1B

physicians. until the adjudication of the H1B

67 A foreign national seeking admission to

Nonimmigrant Classification Under Public Law specifically reference them.77

institutions of higher education. DHS 74 See 65 FR 10678. 77 See 65 FR 10678, 10680.

spouses by forcing them to obtain a

for certain H4 Spouses https://www.uscis.gov/

109 See, e.g., 80 FR 51582 (Aug. 25, 2015) (notice

extended EADs as established by this

commenters suggestions. The Form I9 citizenship, immigration status, or

1182(n)(3)(A); see also 20 CFR 655.736.

1182(n)(1) and (3); see also 20 CFR 655.736.

153 Before filing a labor certification application,

associated with sponsoring an employee maximum total of 257,039 individuals, which

TABLE 2SUMMARY OF PROVISIONS AND IMPACTS

TABLE 2SUMMARY OF PROVISIONS AND IMPACTSContinued

TABLE 2SUMMARY OF PROVISIONS AND IMPACTSContinued

TABLE 2OMB A4 ACCOUNTING STATEMENT

161 OMB Circular A4 is available at www.white

TABLE 2OMB A4 ACCOUNTING STATEMENTContinued

Miscellaneous analyses/category Effects Source Citation

Effects on state, local, and/or tribal governments .......................... None RIA.

Populationpetitions ............................................................................................................................................... 101,245

Populationunique entities ..................................................................................................................................... 23,284

by number of employees .................................................................................................................................. 22 4.3

8 CFR Part 214 for an immigrant visa or adjustment of

f. Adding paragraphs (h)(13)(iii)(C) whose status, as indicated on the

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