[Federal Register Volume 80, Number 251 (Thursday, December 31, 2015)]
[Proposed Rules]
[Pages 81900-81945]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-32666]



[[Page 81899]]

Vol. 80

Thursday,

No. 251

December 31, 2015

Part III





Department of Homeland Security





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8 CFR Parts 204, 205, 214, et al.





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

  Federal Register / Vol. 80 , No. 251 / Thursday, December 31, 2015 / 
Proposed Rules  

[[Page 81900]]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 204, 205, 214, 245 and 274a

[CIS No. 2571-15; DHS Docket No. USCIS-2015-0008]
RIN 1615-AC05


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

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Proposed rule.

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SUMMARY: The Department of Homeland Security (DHS) is proposing to 
amend its regulations related to certain employment-based immigrant and 
nonimmigrant visa programs. The proposed amendments would provide 
various benefits to participants in those programs, including: Improved 
processes for U.S. employers seeking to sponsor and retain immigrant 
and nonimmigrant workers, greater stability and job flexibility for 
such workers, and increased transparency and consistency in the 
application of agency policy related to affected classifications. Many 
of these changes are primarily aimed at improving the ability of U.S. 
employers to hire and retain high-skilled workers who are beneficiaries 
of approved employment-based immigrant visa petitions and are waiting 
to become lawful permanent residents (LPRs), while increasing the 
ability of such workers to seek promotions, accept lateral positions 
with current employers, change employers, or pursue other employment 
options.
    First, DHS proposes to amend its regulations consistent with 
certain worker portability and other provisions in the American 
Competitiveness in the Twenty-first Century Act of 2000 (AC21), as 
amended, as well as the American Competitiveness and Workforce 
Improvement Act of 1998 (ACWIA). These proposed amendments would 
clarify and improve longstanding agency policies and procedures--
previously articulated in agency memoranda and precedent decisions--
implementing sections of AC21 and ACWIA related to certain foreign 
workers, including sections specific to workers who have been sponsored 
for LPR status by their employers. In so doing, the proposed rule would 
enhance consistency among agency adjudicators and provide a primary 
repository of governing rules for the regulated community. In addition, 
the proposed rule would clarify several interpretive questions raised 
by AC21 and ACWIA.
    Second, consistent with existing DHS authorities and the goals of 
AC21 and ACWIA, DHS proposes to amend its regulations governing certain 
employment-based immigrant and nonimmigrant visa programs to provide 
additional stability and flexibility to employers and workers in those 
programs. The proposed rule would, among other things: improve job 
portability for certain beneficiaries of approved employment-based 
immigrant visa petitions by limiting the grounds for automatic 
revocation of petition approval; further enhance job portability for 
such beneficiaries by increasing their ability to retain their priority 
dates for use with subsequently approved employment-based immigrant 
visa petitions; establish or extend grace periods for certain high-
skilled nonimmigrant workers so that they may more easily maintain 
their nonimmigrant status when changing employment opportunities; and 
provide additional stability and flexibility to certain high-skilled 
workers by allowing those who are working in the United States in 
certain nonimmigrant statuses, are the beneficiaries of approved 
employment-based immigrant visa petitions, are subject to immigrant 
visa backlogs, and demonstrate compelling circumstances to 
independently apply for employment authorization for a limited period. 
These and other proposed changes would provide much needed flexibility 
to the beneficiaries of employment-based immigrant visa petitions, as 
well as the U.S. employers who employ and sponsor them for permanent 
residence.
    Finally, to provide additional certainty and stability to certain 
employment-authorized individuals and their U.S. employers, DHS is also 
proposing changes to its regulations governing the processing of 
applications for employment authorization to minimize the risk of any 
gaps in such authorization. These changes would provide for the 
automatic extension of the validity of certain Employment Authorization 
Documents (EADs or Forms I-766) for an interim period upon the timely 
filing of an application to renew such documents. At the same time, in 
light of national security and fraud concerns, DHS is proposing to 
remove regulations that provide a 90-day processing timeline for EAD 
applications and that require the issuance of interim EADs if 
processing extends beyond the 90-day mark.

DATES: Written comments must be received on or before February 29, 
2016.

ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2015-0008, by one of the following methods:
     Federal eRulemaking Portal: You may submit comments to 
USCIS by visiting http://www.regulations.gov. Follow the instructions 
for submitting comments.
     Email: You may submit comments directly to USCIS by 
emailing them to: [email protected]. Please include DHS Docket No. 
USCIS-2015-0008 in the subject line of the message.
     Mail: You may submit comments directly to USCIS by mailing 
them to: Laura Dawkins, Chief, Regulatory Coordination Division, Office 
of Policy and Strategy, U.S. Citizenship and Immigration Services, 
Department of Homeland Security, 20 Massachusetts Avenue NW., 
Washington, DC 20529. This mailing address may be used for paper, disk, 
or CD-ROM submissions. To ensure proper handling, please reference DHS 
Docket No. USCIS-2015-0008 on your correspondence.
     Hand Delivery/Courier: You may submit comments directly to 
USCIS by hand delivery or courier to: Laura Dawkins, Chief, Regulatory 
Coordination Division, Office of Policy and Strategy, U.S. Citizenship 
and Immigration Services, Department of Homeland Security, 20 
Massachusetts Avenue NW., Washington, DC 20529. The contact telephone 
number is (202) 272-8377. To ensure proper handling, please reference 
DHS Docket No. USCIS-2015-0008 on your delivery.

FOR FURTHER INFORMATION CONTACT: Kathleen Angustia or Nikki Lomax-
Larson, Adjudications Officers (Policy), Office of Policy and Strategy, 
U.S. Citizenship and Immigration Services, Department of Homeland 
Security, 20 Massachusetts Avenue NW., Washington, DC 20529. The 
contact telephone number is (202) 272-8377.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Public Participation
II. Executive Summary
    A. Purpose and Summary of the Regulatory Action
    B. Legal Authority
    C. Costs and Benefits
III. Background
    A. Permanent Employment-Based Immigration
    1. Employment-Based Immigrant Visa Preference Categories
    2. The Employment-Based Immigrant Visa Process
    B. Nonimmigrant Visa Classifications
    1. The H-1B Nonimmigrant Visa Classification
    2. Other Relevant Nonimmigrant Visa Classifications

[[Page 81901]]

    C. ACWIA and AC21
    1. The American Competitiveness and Workforce Improvement Act of 
1998
    2. The American Competitiveness in the Twenty-first Century Act 
of 2000
    a. AC21 Provisions Relating to Employment-Based Immigrant Visas
    b. AC21 Provisions Seeking to Improve the H-1B Nonimmigrant 
Worker Classification
    i. Exemptions From the H-1B Numerical Cap
    ii. Application of the H-1B Numerical Cap to Persons Previously 
Counted
    iii. H-1B Portability
    D. The Processing of Applications for Employment Authorization 
Documents
    E. The Increasing Damage Caused by Immigrant Visa Backlogs
IV. Proposed Regulatory Changes
    A. Proposed Implementation of AC21 and ACWIA
    1. Extending H-1B Nonimmigrant Status for Certain Individuals 
Who Are Being Sponsored for Lawful Permanent Residence
    a. H-1B Extensions for Individuals Affected by the Per-Country 
Limitations
    b. H-1B Extensions for Individuals Affected by Lengthy 
Adjudication Delays
    2. Job Portability Under AC21 for Certain Applicants for 
Adjustment of Status
    3. Job Portability for H-1B Nonimmigrant Workers
    4. Calculating the H-1B Admission Period
    5. Exemptions From the H-1B Numerical Cap Under AC21 and ACWIA
    a. Employers Not Subject to H-1B Numerical Limitations
    b. Counting Previously Exempt H-1B Nonimmigrant Workers
    6. Whistleblower Protections in the H-1B Program
    B. Additional Changes to Further Improve Stability and Job 
Flexibility for Certain Foreign Workers
    1. Revocation of Approved Employment-Based Immigrant Visa 
Petitions
    2. Retention of Priority Dates
    3. Nonimmigrant Grace Periods
    a. Extending 10-Day Grace Periods to Certain Nonimmigrant 
Classifications
    b. Providing a 60-Day Grace Period to Certain Nonimmigrant 
Classifications
    4. Eligibility for Employment Authorization in Compelling 
Circumstances
    5. H-1B Licensing Requirements
    C. Processing of Applications for Employment Authorization 
Documents
    1. Automatic Extensions of EADs in Certain Circumstances
    2. Elimination of 90-Day Processing Timeframe and Interim EADs
    3. Conforming and Technical Amendments
V. Statutory and Regulatory Requirements
    A. Executive Orders 12866 and 13563 (Regulatory Planning and 
Review)
    B. Regulatory Flexibility Act
    C. Unfunded Mandates Reform Act of 1995
    D. Small Business Regulatory Enforcement Fairness Act of 1996
    E. Executive Order 13132 (Federalism)
    F. Executive Order 12988 (Civil Justice Reform)
    G. Paperwork Reduction Act

I. Public Participation

    All interested parties are invited to participate in this 
rulemaking by submitting written data, views, or comments on all 
aspects of this proposed rule. DHS and USCIS also invite comments that 
relate to the economic, environmental, or federalism effects that might 
result from this proposed rule. To provide the most assistance to USCIS 
in implementing these changes, comments should reference a specific 
portion of the proposed rule, explain the reason for any recommended 
change, and include data, information, or authority that supports such 
recommended change.
    Instructions: All submissions must include the agency name and DHS 
Docket No. USCIS-2015-0008 for this rulemaking. Regardless of the 
method used for submitting comments or material, all submissions will 
be posted, without change, to the Federal eRulemaking Portal at http://www.regulations.gov, and will include any personal information you 
provide. Submitted information will be made public. You may thus wish 
to consider limiting the amount of personal information that you 
provide in any voluntary public comment submission you make to DHS. DHS 
may withhold information provided in comments from public viewing if 
DHS determines that such information is offensive or may impact the 
privacy of an individual. For additional information, please read the 
Privacy Act notice that is available via the link in the footer of 
http://www.regulations.gov.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov and enter this 
rulemaking's eDocket number: USCIS-2015-0008.

II. Executive Summary

A. Purpose and Summary of the Regulatory Action

    DHS is proposing to amend its regulations related to certain 
employment-based immigrant and nonimmigrant visa programs. The proposed 
rule is intended to benefit U.S. employers and foreign workers 
participating in these programs, by streamlining the processes for 
employer sponsorship of nonimmigrant workers for lawful permanent 
resident (LPR) status, increasing job portability and otherwise 
providing stability and flexibility for such workers, and providing 
additional transparency and consistency in the application of agency 
policies and procedures related to these programs. These changes are 
primarily intended to better enable U.S. employers to employ and retain 
high-skilled workers who are beneficiaries of employment-based 
immigrant visa petitions, while increasing the ability of such workers 
to further their careers by accepting promotions, changing positions 
with current employers, changing employers, and pursuing other 
employment opportunities.
    First, this proposed rule would largely conform DHS regulations to 
longstanding agency policies and procedures established in response to 
certain sections of the American Competitiveness and Workforce 
Improvement Act of 1998 (ACWIA), Public Law 105-277, div. C, tit. IV, 
112 Stat. 2681, and the American Competitiveness in the Twenty-first 
Century Act of 2000 (AC21), Public Law 106-313, 114 Stat. 1251, as 
amended by the 21st Century Department of Justice Appropriations 
Authorization Act, Public Law 107-273, 116 Stat. 1758 (2002). These 
sections were intended, among other things, to provide greater 
flexibility and job portability to certain nonimmigrant workers, 
particularly those who have been sponsored for LPR status as an 
employment-based immigrant, while enhancing opportunities for 
innovation and expansion, maintaining U.S. competitiveness, and 
protecting U.S. workers. The proposed rule would further clarify and 
improve agency policies and procedures in this area--policies and 
procedures that have long been set through a series of policy memoranda 
and a precedent decision of the USCIS Administrative Appeals Office. By 
clarifying such policies in regulation, DHS would provide greater 
transparency and certainty to affected employers and workers, while 
increasing consistency among agency adjudications. In addition, the 
proposed rule would clarify several interpretive questions raised by 
AC21 and ACWIA.
    Specifically, this proposed rule would clarify and improve policies 
and practices related to:
     The ability of H-1B nonimmigrant workers who are being 
sponsored for lawful permanent residence (and their dependents in H-4 
nonimmigrant status) to extend their nonimmigrant status beyond the 
otherwise-applicable 6-year limit pursuant to AC21.
     The ability of certain workers who have pending 
applications for adjustment of status to change employers or jobs 
without endangering the approved employment-based immigrant visa 
petitions filed on their behalf.
     The ability of H-1B nonimmigrant workers to change jobs or 
employers,

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including: (1) The ability to begin employment with new H-1B employers 
that have filed non-frivolous petitions for new H-1B employment; and 
(2) the ability of H-1B employers to file successive H-1B portability 
petitions (often referred to as ``bridge petitions'') and how these 
petitions affect lawful status and work authorization.
     The way in which H-1B nonimmigrant workers are counted 
against the annual H-1B numerical cap, including: (1) The method for 
calculating when such workers may access so-called ``remainder time'' 
(i.e., time when they were physically outside the United States), thus 
allowing them to use their full period of H-1B status; and (2) the 
method for determining which H-1B nonimmigrant workers are ``cap-
exempt'' as a result of previously being counted against the cap.
     The method for determining which H-1B nonimmigrant workers 
are exempt from the H-1B numerical cap due to their employment with an 
institution of higher education, a nonprofit entity related to or 
affiliated with such an institution, or a governmental or nonprofit 
research organization, including a revision to the definition of the 
term ``related or affiliated nonprofit entity'' for such purposes.
     The ability of H-1B nonimmigrant workers who are 
disclosing information in aid of, or otherwise participating in, 
investigations regarding alleged violations of Labor Condition 
Application obligations in the H-1B program to provide documentary 
evidence to USCIS to demonstrate that their resulting failure to 
maintain H-1B status was due to ``extraordinary circumstances.''
    Except where changes to current policies and practices are noted in 
the preamble of this proposed rule, DHS intends these proposals to 
effectively capture the longstanding policies and procedures that have 
developed since enactment of AC21 and ACWIA. The Department welcomes 
comments that identify any such proposals that commenters believe are 
unintentionally inconsistent with current practices, so that any such 
inconsistencies can be resolved in the final rule.
    Second, this rulemaking builds on the provisions listed above by 
proposing additional changes consistent with the immigration laws to 
further provide stability and flexibility in certain immigrant and 
nonimmigrant visa categories. These provisions would improve the 
ability of certain foreign workers, particularly those who are 
successfully sponsored for LPR status by their employers, to accept new 
employment opportunities, pursue normal career progression, better 
establish their lives in the United States, and contribute more fully 
to the U.S. economy. The changes would also provide certainty in the 
regulated community and improve consistency across agency 
adjudications, thereby enhancing the agency's ability to fulfill its 
responsibilities related to U.S. employers and certain foreign workers. 
Specifically, this proposed rule would provide the following:
     Retention of employment-based immigrant visa petitions. 
DHS proposes to enhance job portability for certain workers who have 
approved immigrant visa petitions in the employment-based first 
preference (EB-1), second preference (EB-2), and third preference (EB-
3) categories but who are unable to obtain those visas in the 
foreseeable future due to significant immigrant visa backlogs. 
Specifically, DHS proposes to amend its automatic revocation 
regulations so that immigrant visa petitions that have been approved 
for 180 days or more would no longer be subject to automatic revocation 
based solely on withdrawal by the petitioner or termination of the 
petitioner's business. As long as the petition approval has not been 
revoked for fraud, material misrepresentation, the invalidation or 
revocation of a labor certification, or USCIS error, the petition will 
generally continue to be valid to the beneficiary for various job 
portability and status extension purposes under the immigration laws. 
Such a beneficiary, however, must obtain a new job offer and may need 
another immigrant visa petition approved on his or her behalf to 
ultimately obtain status as an LPR.
     Retention of priority dates. DHS proposes to further 
enhance job portability for workers with approved EB-1, EB-2, and EB-3 
immigrant visa petitions by providing greater clarity regarding when 
they may retain the priority dates assigned to those petitions and 
effectively transfer those dates to new and subsequently approved 
employment-based immigrant visa petitions. As with the immediately 
preceding provision, priority date retention generally would be 
available so long as the initial immigrant visa petition was approved 
and this approval has not been revoked for fraud, material 
misrepresentation, the invalidation or revocation of a labor 
certification, or USCIS error. This provision would improve the ability 
of certain workers to accept promotions, change employers, or accept 
other employment opportunities without fear of losing their place in 
line for immigrant visas based on the skills they contribute to the 
U.S. economy.
     Nonimmigrant grace periods. To enhance job portability for 
certain high-skilled nonimmigrants, DHS proposes to generally establish 
a one-time grace period, during an authorized validity period, of up to 
60 days whenever employment ends for individuals holding E-1, E-2, E-3, 
H-1B, H-1B1, L-1, or TN nonimmigrant status. This proposal would allow 
these high-skilled workers to more readily pursue new employment should 
they be eligible for other employer-sponsored nonimmigrant 
classifications or for the same classification with a new employer. 
Conversely, the proposal allows U.S. employers to more easily 
facilitate changes in employment for existing or newly recruited 
nonimmigrant workers. The individual may not work during the grace 
period, unless otherwise authorized by regulation. As needed, DHS in 
its discretion may eliminate or shorten the 60-day period on a case-by-
case basis.
     Eligibility for employment authorization in compelling 
circumstances. DHS also proposes to provide additional stability and 
flexibility to certain high-skilled nonimmigrant workers in the United 
States who are the beneficiaries of approved employment-based immigrant 
visa petitions but who cannot obtain an immigrant visa number due to 
statutory limits on immigrant visa issuance and are experiencing 
compelling circumstances. Specifically, DHS proposes to allow such 
beneficiaries in the United States on E-3, H-1B, H-1B1, L-1, or O-1 
nonimmigrant status to apply for separate employment authorization for 
a limited period if there are compelling circumstances that, in the 
discretionary determination of DHS, justify the consideration of such 
employment authorization.
     H-1B licensing. DHS proposes to clarify exceptions to the 
requirement that make approval of an H-1B petition contingent upon 
licensure where such licensure is required to fully perform the duties 
of the specialty occupation. The proposed rule would generally allow a 
petitioning employer that has filed an H-1B petition for an unlicensed 
worker to meet the licensure requirement by demonstrating that the 
worker has filed a request for such license but is unable to obtain it, 
or is unable to file a request for such a license, because a state or 
locality requires a social security number or the issuance of 
employment authorization before accepting or approving such requests. 
The proposed rule also clarifies that DHS may approve an H-1B

[[Page 81903]]

petition on behalf of an unlicensed worker if he or she will work in a 
State that allows such individuals to be employed in the occupation 
under the supervision of licensed senior or supervisory personnel.
    As noted above, these changes would help improve various 
employment-based immigrant and nonimmigrant visa classifications, 
including by making it easier to hire and retain nonimmigrant workers 
who have approved immigrant visa petitions and giving such workers 
additional career options as they wait for immigrant visa numbers to 
become available. These improvements are increasingly important 
considering the lengthy and growing backlogs of immigrant visas.
    Finally, to provide additional stability and certainty to U.S. 
employers and individuals eligible for employment authorization in the 
United States, DHS is also proposing several changes to its regulations 
governing its processing of applications for employment authorization. 
First, to minimize the risk of any gaps in employment authorization, 
DHS proposes to automatically extend the validity of Employment 
Authorization Documents (EADs or Forms I-766) in certain circumstances 
based on the timely filing of an application to renew such EADs. 
Specifically, DHS would automatically extend the employment 
authorization and validity of existing EADs issued to certain 
employment-eligible individuals for up to 180 days from the date of the 
cards' expiration, so long as: (1) A renewal application is filed based 
on the same employment authorization category as the previously issued 
EAD (or the renewal application is for an individual approved for 
Temporary Protected Status (TPS) whose EAD was issued pursuant to 8 CFR 
274a.12(c)(19)); (2) such renewal application is timely filed prior to 
the expiration of the EAD and remains pending; and (3) the individual's 
eligibility for employment authorization continues beyond the 
expiration of his or her EAD, and an independent adjudication of the 
individual's underlying eligibility is not a prerequisite to the 
extension of employment authorization. At the same time, DHS would 
eliminate the current regulatory provisions that require adjudication 
of EAD applications within 90 days of filing and that authorize interim 
EADs in cases where such adjudications are not conducted within the 90-
day timeframe. These changes would provide enhanced stability and 
certainty to employment-authorized individuals and their employers, 
while reducing opportunities for fraud and protecting the security-
related processes undertaken for each EAD application.

B. Legal Authority

    The authority of the Secretary of Homeland Security (Secretary) for 
these regulatory amendments is found in various sections of the 
Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., ACWIA, 
AC21, and the Homeland Security Act of 2002 (HSA), Public Law 107-296, 
116 Stat. 2135, 6 U.S.C. 101 et seq. General authority for issuing the 
proposed rule is found in section 103(a) of the INA, 8 U.S.C. 1103(a), 
which authorizes the Secretary to administer and enforce the 
immigration and nationality laws, as well as section 102 of the HSA, 6 
U.S.C. 112, which vests all of the functions of DHS in the Secretary 
and authorizes the Secretary to issue regulations. Further authority 
for the regulatory amendments in the proposed rule is found in:
     Section 205 of the INA, 8 U.S.C. 1155, which grants the 
Secretary broad discretion in determining whether and how to revoke any 
immigrant visa petition approved under section 204 of the INA, 8 U.S.C. 
1154;
     Section 214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), which 
authorizes the Secretary to prescribe by regulation the terms and 
conditions of the admission of nonimmigrants;
     Section 274A(h)(3)(B) of the INA, 8 U.S.C. 1324a(h)(3)(B), 
which recognizes the Secretary's authority to extend employment 
authorization to noncitizens in the United States;
     Section 413(a) of ACWIA, which amended Section 
212(n)(2)(C) of the INA, 8 U.S.C. 1182(n)(2)(C), to authorize the 
Secretary to provide certain whistleblower protections to H-1B 
nonimmigrant workers;
     Section 414 of ACWIA, which added section 214(c)(9) of the 
INA, 8 U.S.C. 1184(c)(9), to authorize the Secretary to impose a fee on 
certain H-1B petitioners to fund the training and education of U.S. 
workers;
     Section 103 of AC21, which amended section 214(g) of the 
INA, 8 U.S.C. 1184(g), to provide: (1) An exemption from the H-1B 
numerical cap for certain H-1B nonimmigrant workers employed at 
institutions of higher education, nonprofit entities related to or 
affiliated with such institutions, and nonprofit or governmental 
research organizations; and (2) that a worker who has been counted 
against the H-1B numerical cap within the 6 years prior to petition 
approval will not again be counted against the cap unless the 
individual would be eligible for a new 6-year period of authorized H-1B 
admission.
     Section 104(c) of AC21, which authorizes the extension of 
H-1B status beyond the general 6-year maximum for H-1B nonimmigrant 
workers who have approved EB-1, EB-2, or EB-3 immigrant visa petitions 
but are subject to backlogs due to application of certain ``per-
country'' limitations on immigrant visas;
     Section 105 of AC21, which added what is now section 
214(n) of the INA, 8 U.S.C. 1184(n),\1\ to allow an H-1B nonimmigrant 
worker to begin concurrent or new H-1B employment upon the filing of a 
timely, non-frivolous H-1B petition;
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    \1\ Section 8(a)(3) of the Trafficking Victims Protection 
Reauthorization Act of 2003, Public Law 108-193, (Dec. 19, 2003), 
redesignated section 214(m) of the INA, 8 U.S.C. 1184(m), as section 
214(n) of the INA, 8 U.S.C. 1184(n).
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     Sections 106(a) and (b) of AC21, which, as amended, 
authorize the extension of H-1B status beyond the general 6-year 
maximum for H-1B nonimmigrant workers who have been sponsored for 
permanent residence by their employers and who are subject to certain 
lengthy adjudication or processing delays;
     Section 106(c) of AC21, which added section 204(j) of the 
INA, 8 U.S.C. 1154(j), to authorize certain beneficiaries of approved 
EB-1, EB-2, and EB-3 immigrant visa petitions who have filed 
applications for adjustment of status to change jobs or employers 
without invalidating their approved petitions; and
     Section 101(b)(1)(F) of the HSA, 6 U.S.C. 111(b)(1)(F), 
which establishes as a primary mission of DHS the duty to ``ensure that 
the overall economic security of the United States is not diminished by 
efforts, activities, and programs aimed at securing the homeland.''

C. Costs and Benefits

    Taken together, the proposed amendments aim to reduce unnecessary 
disruption to businesses and families caused by immigrant visa 
backlogs, as described in Section III.E. The benefits from these 
proposed amendments add value to the U.S. economy by retaining high-
skilled workers who make important contributions to the U.S. economy, 
including technological advances and research and development 
endeavors, which are highly correlated with overall economic growth and 
job creation.\2\ For more information, the

[[Page 81904]]

public may consult the Regulatory Impact Analysis, reflecting that 
although there may be short-term negative or neutral impacts, the 
addition of high-skilled workers presents long-term benefits to the 
U.S. economy.\3\
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    \2\ Hart, David, et al., ``High-tech Immigrant Entrepreneurship 
in the United States,'' Small Business Administration Office of 
Advocacy (July 2009), available at: https://www.sba.gov/sites/default/files/rs349tot_0.pdf. See also Fairlie, Robert., ``Open for 
Business: How Immigrants are Driving Small Business Creation in the 
United States,'' The Partnership for a New American Economy (August 
2012), available at: http://www.renewoureconomy.org/sites/all/themes/pnae/openforbusiness.pdf; ``Immigrant Small Business Owners a 
Significant and Growing Part of the Economy,'' Fiscal Policy 
Institute (June 2012), available at: http://www.fiscalpolicy.org/immigrant-small-business-owners-FPI-20120614.pdf; Anderson, Stuart, 
``American Made 2.0 How Immigrant Entrepreneurs Continue to 
Contribute to the U.S. Economy,'' National Venture Capital 
Association (June 2013), available at: http://nvca.org/research/stats-studies/.
    \3\ ``The Economic Impact of S. 744, the Border Security, 
Economic Opportunity, and Immigration Modernization Act,'' June 18, 
2013, available at http://www.cbo.gov/sites/default/files/cbofiles/attachments/44346-Immigration.pdf.
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    DHS has analyzed potential costs of these proposed regulations and 
has determined that the changes proposed by DHS have direct impacts to 
individual beneficiaries of employment-based nonimmigrant and immigrant 
visa petitions in the form of filing costs, consular processing costs, 
and potential for longer processing times for EAD applications during 
filing surges, among other costs. Due to the fact that some of these 
petitions are filed by a sponsoring employer, this rule also has 
indirect effects on employers in the form of employee replacement 
costs.
    The proposed amendments would clarify and amend policies and 
practices in various employment-based immigrant and nonimmigrant visa 
programs, with the primary aim of providing additional stability and 
flexibility to both foreign workers and U.S. employers participating in 
those programs. In part, the proposed rule clarifies and improves upon 
longstanding policies adopted in response to the enactment of ACWIA and 
AC21 to ensure greater consistency across agency adjudications and 
provide greater certainty to regulated employers and workers. These 
changes would provide various benefits to U.S. employers and certain 
foreign workers, including the enhanced ability of such workers to 
accept promotions or change positions with their employers, as well as 
change employers or pursue other employment opportunities. These 
proposals also benefit the regulated community by providing instructive 
rules governing: Extensions of stay for certain H-1B nonimmigrant 
workers facing long delays in the immigrant visa process; the ability 
of workers who have been sponsored by their employers for LPR status to 
change jobs or employers 180 days after they file applications for 
adjustment of status; the circumstances under which H-1B nonimmigrant 
workers may begin employment with a new employer; how H-1B nonimmigrant 
workers count time toward maximum periods of stay; which entities are 
properly considered related to or affiliated with institutions of 
higher education for purposes of the H-1B program; and when H-1B 
nonimmigrant workers can claim whistleblower protections. The increased 
clarity provided by these rules will enhance the ability of these 
workers to take advantage of the job portability and related provisions 
in AC21 and ACWIA.
    The proposed rule would also amend the current regulatory scheme 
governing certain immigrant and nonimmigrant visa programs to enhance 
job portability for certain workers and improve the ability of U.S. 
businesses to retain highly valued individuals. These benefits are 
achieved by: Proposing a revised method to retain the approval of 
employment-based immigrant visa petitions already adjudicated by DHS 
and to retain priority dates of these approved petitions for purposes 
of immigrant visa or adjustment of status processing; providing a grace 
period to certain nonimmigrants to enhance their ability to seek an 
authorized change of employment; establishing a means for certain 
nonimmigrant workers with approved employment-based immigrant visa 
petitions to directly request separate employment authorization for a 
limited time when facing compelling circumstances; and identifying 
exceptions to licensing requirements applicable to certain H-1B 
nonimmigrant workers.
    Finally, the proposed rule would also amend current regulations 
governing the processing of applications for employment authorization 
to provide additional stability to certain employment-authorized 
individuals in the United States while addressing fraud and national 
security concerns. To prevent gaps in employment for such individuals 
and their employers, the proposed rule would provide for the automatic 
extension of EADs (and, where necessary, employment authorization) upon 
the timely filing of a renewal application. To protect against fraud 
and other abuses, the proposed rule would also eliminate current 
regulatory provisions that require adjudication of applications for 
employment authorization in 90 days and that authorize interim EADs 
when that timeframe is not met.
    DHS has prepared a full costs and benefits analysis of the proposed 
regulation, which can be found on regulations.gov.

III. Background

A. Permanent Employment-Based Immigration

1. Employment-Based Immigrant Visa Preference Categories
    Current employment-based immigrant visa (i.e., permanent visa) \4\ 
levels were set 25 years ago with the enactment of the Immigration Act 
of 1990 (``IMMACT 90''), Public Law 101-649, 104 Stat. 4978. As amended 
by IMMACT 90, the INA generally makes 140,000 employment-based 
immigrant visas available each fiscal year, plus any family-sponsored 
immigrant visas authorized under section 203(a) of the INA, 8 U.S.C. 
1153(a) that went unused during the previous fiscal year. See INA 
section 201(d), 8 U.S.C. 1151(d). The INA allots the minimum 140,000 
immigrant visas per fiscal year through five separate employment-based 
(EB) ``preference categories'' as follows:
---------------------------------------------------------------------------

    \4\ Immigrant visas are essentially permanent visas that lead to 
LPR status. The employment-based immigration process discussed here 
focuses on the process through which an individual may obtain LPR 
status in the United States through an employment-based immigration 
category.
---------------------------------------------------------------------------

     First Preference (EB-1) Category: 40,040 immigrant visas 
for so-called ``priority workers,'' including (1) ``aliens with 
extraordinary ability,'' (2) ``outstanding professors and 
researchers,'' and (3) ``certain multinational executives and 
managers.'' INA section 203(b)(1), 8 U.S.C. 1153(b)(1).
     Second Preference (EB-2) Category: 40,040 immigrant visas 
for (1) ``members of the professions holding advanced degrees'' and (2) 
``aliens of exceptional ability.'' INA section 203(b)(2), 8 U.S.C. 
1153(b)(2).
     Third Preference (EB-3) Category: 40,040 immigrant visas 
for (1) ``skilled workers'' (workers with at least 2 years of training 
or experience), (2) ``professionals'' (members of the professions 
holding baccalaureate degrees), and (3) ``other workers'' (unskilled 
workers of less than 2 years of training or experience). INA section 
203(b)(3), 8 U.S.C. 1153(b)(3).
     Fourth Preference (EB-4) Category: 9,940 immigrant visas 
for certain ``special immigrants'' described in section 101(a)(27) of 
the INA, 8 U.S.C. 1101(a)(27). INA section 203(b)(4), 8 U.S.C. 
1153(b)(4).
     Fifth Preference (EB-5) Category: 9,940 immigrant visas 
for employment-creation immigrant investors seeking to enter the United 
States for the purpose of engaging in a ``new commercial

[[Page 81905]]

enterprise.'' INA section 203(b)(5), 8 U.S.C. 1153(b)(5).\5\
---------------------------------------------------------------------------

    \5\ This proposed rule largely does not affect individuals 
applying for immigrant visas in the EB-4 and EB-5 preference 
categories. Accordingly, the remainder of this section concerns only 
individuals seeking immigrant visas under the EB-1, EB-2, and EB-3 
preference categories.
---------------------------------------------------------------------------

    The INA further provides that immigrant visa numbers authorized in 
one preference category may be moved to other preference categories 
when demand for visas in the original preference category is 
insufficient to use all available visas. See generally INA section 
203(b), 8 U.S.C. 1153(b).
    Although the INA makes the above minimum number of employment-based 
immigrant visas available each fiscal year, the INA requires that no 
more than 27 percent of the available number be issued in any of the 
first 3 quarters of the fiscal year. See INA section 201(a)(2), 8 
U.S.C. 1151(a)(2). Moreover, these immigrant visa numbers are subject 
to what are known as ``per-country'' limitations. See INA section 
202(a)(2), 8 U.S.C. 1152(a)(2). Generally, in any fiscal year, 
individuals born in any given country may be allocated no more than 7 
percent of the total number of immigrant visas. As discussed further 
below, depending on the level of demand in the governing preference 
category, the individual's country of birth, and the applicability of 
any statutory exceptions to these limitations, an individual may be 
subject to lengthy delays in the employment-based immigration process 
due to lack of immigrant visa availability.
2. The Employment-Based Immigrant Visa Process
    Individuals seeking to obtain LPR status in the United States 
through the EB-1, EB-2, or EB-3 preference categories must often go 
through a complex, multi-step process. With respect to most individuals 
described in the EB-2 and EB-3 categories, the immigrant visa process 
normally begins when a U.S. employer seeks to obtain a labor 
certification from the U.S. Department of Labor (DOL).\6\ See INA 
section 212(a)(5), 8 U.S.C. 1182(a)(5); 8 CFR 204.5. Generally, the 
U.S. employer is required to test the U.S. labor market for the offered 
position by advertising the position and attempting to recruit 
qualified U.S. workers in the area of intended employment. See 20 CFR 
656.17. In the alternative, the employer may provide evidence to USCIS 
that the position to be filled by the worker qualifies for what is 
known as a ``Schedule A'' designation due to a shortage of U.S. workers 
in a specific occupation. See 20 CFR 656.5, 656.15. Schedule A 
applications are not required to obtain labor certification through DOL 
prior to petitioning USCIS. Id.
---------------------------------------------------------------------------

    \6\ Labor certifications are unnecessary for petitions seeking 
EB-1 classification and for petitions seeking a ``national interest 
waiver'' under the EB-2 category. See INA sections 203(b)(2)(B) and 
212(a)(5)(D), 8 U.S.C. 1153(b)(2)(B) and 1182(a)(5)(D); 8 CFR 
204.5(h)(5), (i)(3)(iii), (j)(5), (k)(4)(ii).
---------------------------------------------------------------------------

    Upon completion of the recruitment process (if recruitment is 
required), the employer files an ``Application for Permanent Employment 
Certification'' (ETA Form 9089) with DOL's Office of Foreign Labor 
Certification. See 20 CFR 656.17(a). The application constitutes a 
request for DOL to certify, among other things, that (1) there ``are 
not sufficient workers who are able, willing, qualified . . . , and 
available'' to perform the advertised job, and (2) the individual's 
admission to the United States ``will not adversely affect the wages 
and working conditions'' of U.S. workers. INA section 212(a)(5)(A)(i), 
8 U.S.C. 1182(a)(5)(A)(i). For immigrant visa petitions that require an 
approved permanent labor certification from DOL, the date the 
application for labor certification is accepted by DOL for processing 
is the employee's ``priority date.'' See 8 CFR 204.5(d). The priority 
date sets an individual's place in the queue for the allocation of 
employment-based immigrant visas.
    After obtaining an approved permanent labor certification from DOL, 
or if no such certification is required for the classification sought, 
the U.S. employer files an immigrant visa petition with USCIS on behalf 
of the worker (or ``beneficiary'').\7\ See INA section 204(a)(1)(F), 8 
U.S.C. 1154(a)(1)(F). Such petition is known as an ``Immigrant Petition 
for Alien Worker,'' or USCIS Form I-140. The purpose of the petition is 
to demonstrate that the job offered and the beneficiary's 
qualifications meet the requirements of the requested immigrant visa 
classification under section 203(b) of the INA, 8 U.S.C. 1153(b), and 
pertinent regulatory requirements, see 8 CFR 204.5. If no labor 
certification was required, the employee's priority date (i.e., place 
in the queue for an employment-based immigrant visa) is the date the 
immigrant visa petition is properly filed with USCIS. See 8 CFR 
204.5(d); see also 22 CFR 42.53(a).
---------------------------------------------------------------------------

    \7\ Individuals seeking immigrant visas through the EB-1 
preference category as workers with extraordinary ability (rather 
than as outstanding professors and researchers or multinational 
executives and managers), or through the EB-2 preference category 
with ``national interest waivers,'' may file immigrant visa 
petitions on their own behalf and thus do not require sponsorship by 
a U.S. employer. See INA sections 203(b)(1)(B), (b)(1)(C), and 
(b)(2)(B)(i), 8 U.S.C. 1153(b)(1)(B), (b)(1)(C), and (b)(2)(B)(i).
---------------------------------------------------------------------------

    If the immigrant visa petition is approved, the beneficiary must 
take additional steps to obtain LPR status, by either requesting an 
immigrant visa to enter the United States from abroad or filing an 
application for adjustment of status while in the United States. The 
ability to take such steps, however, is limited by the number of 
immigrant visas authorized for issuance and any superseding demand for 
such visas. As mentioned above, the beneficiary's priority date 
determines the duration of that beneficiary's wait for an immigrant 
visa by positioning the beneficiary behind individuals with earlier 
priority dates in the same employment-based preference category and 
country of birth. In certain situations, the beneficiary of an approved 
EB-1, EB-2, or EB-3 immigrant visa petition may retain the priority 
date listed in the approved petition for use in a subsequent immigrant 
visa petition. See 8 CFR 204.5(e).
    The beneficiary of an approved immigrant visa petition may be able 
to obtain LPR status in one of two ways. The beneficiary may apply at a 
U.S. consular post abroad for an immigrant visa, which, once received, 
would allow the beneficiary to apply for admission to the United States 
as an LPR.\8\ Such a beneficiary must generally wait to receive visa 
application instructions from the U.S. Department of State (DOS) 
National Visa Center. After receiving these instructions, the 
beneficiary collects required information and files the immigrant visa 
application with DOS. Depending on the demand for immigrant visas in 
the beneficiary's preference category and country of birth, the 
beneficiary may be required to wait further for visa issuance. Once DOS 
allocates visa numbers to be issued to applicants in the relevant 
preference category and country of birth with the beneficiary's 
priority date, DOS contacts the beneficiary for an immigrant visa 
interview. If the beneficiary's application is ultimately approved, he 
or she is issued an immigrant visa and, on the date of admission to the 
United States, obtains LPR status. DOS publishes a monthly ``Visa 
Bulletin'' that indicates when individuals may expect to receive their 
visa application instructions, as well as whether they are currently 
authorized to be issued immigrant visas by DOS consular offices abroad. 
See INA sections 203(e) and (g), 245(a), 8 U.S.C. 1153(e) and (g), 
1255(a); see also 8 CFR 245.1(g)(1) and

[[Page 81906]]

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

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

    In the alternative, a beneficiary who is in the United States in 
lawful nonimmigrant status, with limited exception, may seek LPR status 
by filing with USCIS an application for adjustment of status to that of 
a lawful permanent resident (``application for adjustment of status'') 
in accordance with section 245 of the INA, 8 U.S.C. 1255. Before filing 
such an application, however, the beneficiary must wait until an 
immigrant visa is ``immediately available'' to him or her. See INA 
section 245(a), 8 U.S.C. 1255(a); 8 CFR 245.2(a)(2)(i)(B) and (C). An 
immigrant visa is considered ``immediately available'' to the 
beneficiary if his or her priority date for the preference category is 
earlier than the relevant cut-off date indicated in the monthly DOS 
Visa Bulletin.\9\ See 8 CFR 245.1(g)(1) and 245.2(a)(2)(i)(B). These 
dates allow individuals to determine--based on their priority dates, 
countries of birth, and preference categories--whether they can file 
applications for adjustment of status and when they may expect to have 
their status adjusted to that of an LPR.
---------------------------------------------------------------------------

    \9\ The Visa Bulletin, which is issued monthly, is available at 
http://travel.state.gov/visa/bulletin/bulletin_1360.html.
---------------------------------------------------------------------------

    After the application for adjustment of status is filed, USCIS 
commences its adjudication. It is possible, however, that while the 
application is pending, higher than expected demand for immigrant visas 
will cause DOS to determine that immigrant visas that previously were 
available are no longer available to the applicant and cannot be 
authorized for issuance to him or her. This is often referred to as 
``visa retrogression.'' In such cases, USCIS may not approve the 
application until an immigrant visa is again available and authorized 
for issuance to the applicant under the Visa Bulletin. USCIS will place 
these cases on ``hold'' in the interim. Similarly, retrogression may 
cause a DOS consular post abroad to no longer be able to issue an 
immigrant visa to an overseas applicant.

B. Nonimmigrant Visa Classifications

    Prior to being sponsored for an immigrant visa by a U.S. employer, 
many foreign national employees first come to the United States 
pursuant to a nonimmigrant visa, such as an H-1B visa for ``specialty 
occupation workers'' or an L-1 visa for ``intracompany transferees.'' 
These and other nonimmigrant visa classifications allow these 
individuals to be employed in the United States for temporary periods. 
Each classification has its own eligibility requirements, as well as 
requirements related to duration of status, ability to renew status, 
ability to change jobs or employers, minimum wages, and worker 
protections.
1. The H-1B Nonimmigrant Visa Classification
    A U.S. employer seeking to temporarily employ a foreign national in 
the United States in a ``specialty occupation'' may file a petition to 
obtain H-1B nonimmigrant classification on behalf of the 
individual.\10\ See INA section 101(a)(15)(H)(i)(B), 8 U.S.C. 
1101(a)(15)(H)(i)(B). A specialty occupation is defined as an 
occupation that requires (1) ``theoretical and practical application of 
a body of highly specialized knowledge'' and (2) ``the attainment of a 
bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum qualification for entry into the occupation in 
the United States.'' See INA section 214(i)(l), 8 U.S.C. 1184(i)(1). 
Subject to certain exemptions, the total number of individuals who may 
be issued H-1B visas or otherwise accorded H-1B status in a fiscal year 
may not exceed 65,000. See INA section 214(g)(1)(A)(vii), 8 U.S.C. 
1184(g)(1)(A)(vii). Employers eligible to file H-1B petitions include 
the actual employer of the worker as well as certain agents that 
satisfy DHS regulatory requirements. See 8 CFR 214.2(h)(2)(i)(A) and 
(F).
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    \10\ An H-1B petition can be filed for a foreign national to 
perform services in a specialty occupation, services relating to a 
Department of Defense (DOD) cooperative research and development 
project or coproduction project, or services of distinguished merit 
and ability in the field of fashion modeling. 8 CFR 
214.2(h)(4)(i)(A).
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    Before filing an H-1B petition, the U.S. employer (or 
``petitioner'') generally must first file a Labor Condition Application 
(LCA) with DOL that covers the proposed dates of H-1B employment.\11\ 
See INA sections 101(a)(15)(H)(i)(B) and 212(n), 8 U.S.C. 
1101(a)(15)(H)(i)(B) and 1182(n). Among other things, the LCA requires 
the petitioner to attest to the occupational classification in which 
the worker will be employed, the wage to be paid to the worker, and the 
location(s) where the employment will occur. See INA section 212(n), 8 
U.S.C. 1182(n); see also 20 CFR 655.730(c)(4). If DOL certifies the 
LCA, the petitioner may then file a Petition for a Nonimmigrant Worker 
(Form I-129) with USCIS seeking approval of H-1B classification for the 
worker (or ``beneficiary'').\12\ See INA section 214(c)(1), 8 U.S.C. 
1184(c)(1); 8 CFR 214.2(h)(4)(i)(B)(1). If the H-1B position requires a 
state or local license to fully perform the job duties, the H-1B 
petition may not be approved unless the beneficiary possesses the 
required license. See 8 CFR 214.2(h)(4)(v)(A).
---------------------------------------------------------------------------

    \11\ Petitions for H-1B visas relating to Department of Defense 
cooperative research, development, and coproduction projects do not 
require petitioners to file a Labor Condition Application. See 8 CFR 
214.2(h)(4)(vi).
    \12\ In such case, the worker would be considered the 
beneficiary of the H-1B petition.
---------------------------------------------------------------------------

    If the H-1B petition is approved, H-1B classification may generally 
be issued for a period of up to 3 years but may not exceed the validity 
period of the LCA.\13\ See 8 CFR 214.2(h)(9)(iii)(A)(1). Subsequently, 
the original petitioner or a different petitioner may petition USCIS to 
authorize continued or new employment of the beneficiary as an H-1B 
nonimmigrant worker. Such a renewal petition may, if the H-1B 
nonimmigrant worker is in the United States and (with limited 
exception) maintaining H-1B status at the time the petition is filed, 
include a request to extend his or her stay in H-1B status. See 8 CFR 
214.1(c)(1) and 214.2(h)(2)(i)(D), (h)(14) and (h)(15).
---------------------------------------------------------------------------

    \13\ H-1B visas relating to Department of Defense cooperative 
research, development, and coproduction projects may be issued for 
up to 5 years, and they may be renewed for a maximum H-1B period of 
10 years. See Public Law 101-649, section 222(a)(2), 104 Stat. 4978 
(Nov. 29, 1990); 8 CFR 214.2(h)(9)(iii)(A)(2).
---------------------------------------------------------------------------

    The maximum period of authorized admission of an individual in the 
H-1B classification is generally limited to 6 years. See INA section 
214(g)(4), 8 U.S.C. 1184(g)(4).\14\ Typically, an H-1B petition may not 
be approved for a beneficiary who has stayed for the maximum allowable 
amount of time in the United States as an H-1B (or L-1 \15\) 
nonimmigrant worker, unless the beneficiary has resided and been 
physically present outside the United States for the immediate prior 
year. See 8 CFR 214.2(h)(13)(iii)(A). The INA defines the terms 
``admission'' and ``admitted'' to mean ``the lawful entry of the 
[foreign national] into the United States after inspection and 
authorization by an immigration officer.'' See INA section 101(a)(13), 
8 U.S.C. 1101(a)(13). Therefore, DHS calculates an H-1B nonimmigrant 
worker's period of authorized admission by excluding time spent outside 
the United States during the validity of an H-1B petition. Such

[[Page 81907]]

``remainder time'' is effectively added back to the period of stay 
allowed the individual as an H-1B nonimmigrant worker. Reclaiming this 
time is referred to as ``recapture'' of H-1B time (i.e., the time 
allowed an individual to be employed in H-1B status within the 6-year 
period of authorized admission).\16\
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    \14\ The maximum period of authorized admission for Department 
of Defense H-1B nonimmigrant workers is 10 years. As explained in 
detail below, AC21, as amended, contains two provisions that allow 
for USCIS to approve H-1B petitions for beneficiaries beyond the 
otherwise applicable statutory 6-year maximum period of authorized 
admission.
    \15\ The L-1 nonimmigrant classification is described further 
below.
    \16\ See USCIS Memorandum from Michael Aytes, ``Procedures for 
Calculating Maximum Period of Stay Regarding the Limitations on 
Admission for H-1B and L-1 Nonimmigrants,'' (Oct. 21, 2005) (``Aytes 
Memo Oct. 2005'').
---------------------------------------------------------------------------

    Spouses and minor, unmarried children of an H-1B nonimmigrant 
worker are eligible for H-4 nonimmigrant status subject to the same 
period of admission and limits as the H-1B nonimmigrant. See 8 CFR 
214.2(h)(9)(iv). H-1B nonimmigrant workers and their H-4 nonimmigrant 
dependents are currently afforded a grace period of up to 10 days to 
remain in the United States after the end of the petition validity 
period. See 8 CFR 214.2(h)(13)(i)(A). During any such grace period, the 
H-1B nonimmigrant worker is considered ``admitted to the United 
States,'' but not authorized to work. Id.
    Generally, a request for an extension of H-1B stay may be filed 
only if the individual's H-1B status has not expired. See 8 CFR 
214.1(c)(4) and 214.2(h)(14). Under certain circumstances, failure to 
file a request for an extension of H-1B stay before H-1B nonimmigrant 
status has expired may be excused. Id. In such cases, the petitioner 
must demonstrate that:
     The delay was due to extraordinary circumstances beyond 
the control of the foreign national or petitioner, and USCIS finds the 
delay commensurate with the circumstances;
     The foreign national has not otherwise violated his or her 
nonimmigrant status;
     The foreign national remains a bona fide nonimmigrant; and
     The foreign national is not the subject of deportation 
proceedings under section 242 of the INA, 8 U.S.C. 1252 (prior to April 
1, 1997), or removal proceedings under section 240 of the INA, 8 U.S.C. 
1229a.
    Id. If such a request for an extension of H-1B stay is approved, 
the extension may be granted from the date the previously authorized 
stay expired. Id.
2. Other Relevant Nonimmigrant Visa Classifications
    Foreign nationals may also work in the United States in other 
temporary nonimmigrant statuses. The employment-based nonimmigrant 
statuses that are relevant to this proposed rule are described below.
    E-1 classification. The E-1 nonimmigrant classification allows 
nationals of certain ``treaty countries'' to be admitted to the United 
States solely to engage in international trade on his or her own 
behalf. To qualify for E-1 classification, the ``treaty trader'' must: 
(1) Be a national of a country with which the United States maintains a 
qualifying treaty; and (2) carry on substantial trade, principally 
between the United States and the treaty country that qualifies the 
treaty trader for E-1 classification. See 8 CFR 214.2(e)(1). Certain 
employees of such a person or of a qualifying organization may also be 
eligible for this classification. A treaty trader or employee may only 
engage in the trade activity or work in the employment for which he or 
she was approved at the time the classification was granted. See 8 CFR 
214.2(e)(8)(i). An E-1 employee, however, may also work for the treaty 
organization's parent company or one of its subsidiaries in certain 
circumstances. See 8 CFR 214.2(e)(8)(ii). Treaty traders may be 
admitted in E-1 nonimmigrant status for a period of up to 2 years, and 
such status may be renewed indefinitely so long as the individual 
continues to meet the relevant qualifications. See 8 CFR 214.2(e)(19) 
and (20).
    E-2 classification. The E-2 nonimmigrant classification concerns 
nationals of treaty countries who invest a substantial amount of 
capital in a U.S. enterprise. To qualify for E-2 classification, the 
``treaty investor'' must: (1) Be a national of a country with which the 
United States maintains a qualifying treaty; (2) have invested, or be 
actively in the process of investing, a substantial amount of capital 
in a bona fide enterprise in the United States; and (3) be seeking to 
enter the United States solely to develop and direct the enterprise. 
Certain employees of such a person or of a qualifying organization may 
also be eligible for this classification. A ``treaty investor'' or 
employee in E-2 nonimmigrant status may only engage in the investment 
activity or work in the employment for which he or she was approved at 
the time the classification was granted. See 8 CFR 214.2(e)(8)(i). An 
E-2 nonimmigrant employee, however, may also work for the treaty 
organization's parent company or one of its subsidiaries in certain 
circumstances. See 8 CFR 214.2(e)(8)(ii). Treaty investors may be 
admitted in E-2 nonimmigrant status for a period of 2 years, and such 
status may be renewed indefinitely so long as the individual continues 
to meet the relevant qualifications. See 8 CFR 214.2(e)(19) and (20).
    E-3 classification. The E-3 nonimmigrant visa classification 
concerns specialty occupation workers who are nationals of the 
Commonwealth of Australia. See INA section 101(a)(15)(E)(iii), 8 U.S.C. 
1101(a)(15)(E)(iii). The definition of the term ``specialty 
occupation'' is the same for E-3 classification as that for the H-1B 
classification. See INA section 214(i)(1), 8 U.S.C. 1184(i)(1). To 
qualify for E-3 classification, the applicant must present a Labor 
Condition Application in accordance with section 212(t)(1) of the INA, 
8 U.S.C. 1182(t)(1). The total number of Australian nationals who may 
be accorded E-3 nonimmigrant status in a fiscal year is capped at 
10,500. See INA section 214(g)(11)(B), 8 U.S.C. 1184(g)(11)(B). E-3 
nonimmigrant workers may be admitted initially for a period not to 
exceed the validity period of the accompanying LCA (granted for 2 
years) and may be granted indefinite extensions of stay in increments 
of up to 2 years. See 20 CFR 655.750(a)(2).\17\
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    \17\ See Michael Aytes Memorandum: Processing Guidelines for E-3 
Australian Specialty Occupation Workers and Employment Authorization 
for E-3 Dependent Spouses (Dec. 15, 2005), available at http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2005/e3polgdnc_121505.pdf.
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    H-1B1 classification. Similar to the H-1B and E-3 classifications, 
the H-1B1 classification is for specialty occupation workers, but is 
limited to temporary workers from Chile and Singapore. See INA sections 
101(a)(15)(H)(i)(b)(1) and 214(i), 8 U.S.C. 1101(a)(15)(H)(i)(b)(1) and 
1184(i). Consistent with Free Trade Agreements with Chile and 
Singapore, up to 1,400 nationals from Chile and 5,400 nationals from 
Singapore may enter the United States annually in the H-1B1 
classification to perform specialty occupation work. See INA section 
214(g)(8)(B), 8 U.S.C. 1184(g)(8)(B). Individuals admitted in such 
status are counted against the overall H-1B annual numerical limitation 
of 65,000. Id. The H-1B1 nonimmigrant classification requires the 
filing of an LCA certified by DOL. See INA sections 
101(a)(15)(H)(i)(B)(1) and 212(t), 8 U.S.C. 1101(a)(15)(H)(i)(B)(1) and 
1182(t). H-1B1 nonimmigrants may be admitted for a period of up to 1 
year, and may extend their period of stay in the United States in up to 
1-year increments. See INA section 214(g)(8)(C), 8 U.S.C. 
1184(g)(8)(C).
    L-1 classification. The L-1 nonimmigrant visa classification

[[Page 81908]]

concerns ``intracompany transferees'' of multinational entities who are 
executives, managers, or employees with specialized knowledge and who 
are transferring from an office abroad to a qualifying office in the 
United States. See INA section 101(a)(15)(L), 8 U.S.C. 1101(a)(15)(L). 
Executive and managerial employees qualify for L-1A status and are 
admitted for a maximum initial stay of 3 years, with extensions of stay 
granted in increments of up to 2 years, until the employee has reached 
the maximum limit of 7 years. See INA section 214(c)(1)(D)(i), 8 U.S.C. 
1184(c)(1)(D)(i); see also 8 CFR 214.2(l)(12)(i) and (15)(ii). 
Specialized knowledge employees qualify for L-1B status and are 
admitted for a maximum initial stay of 3 years, with extensions of stay 
granted in increments of up to 2 years, until the employee has reached 
the maximum limit of 5 years. See INA section 214(c)(1)(D)(ii); see 
also 8 CFR 214.2(l)(12)(i) and (15)(ii).
    O-1 classification. The O-1 nonimmigrant visa classification 
includes individuals who either: (1) Have ``extraordinary ability'' in 
the sciences, arts, education, business or athletics, as demonstrated 
by sustained national or international acclaim; or (2) have a 
demonstrated record of extraordinary achievements in the motion picture 
or television industry, as recognized in the field through extensive 
documentation. See INA section 101(a)(15)(O), 8 U.S.C. 1101(a)(15)(O). 
O-1 nonimmigrants must be coming temporarily to the United States to 
continue work in the relevant area of extraordinary ability or 
achievement. Id. O-1 nonimmigrants may be admitted to the United States 
for up to 3 years, plus a period of up to 10 days before the validity 
period begins and 10 days after the validity period ends. See 8 CFR 
214.2(o)(6)(iii)(A) and (o)(10). Extensions of status may be authorized 
in increments of up to 1 year, and such status may be renewed 
indefinitely so long as the individual continues to meet the relevant 
qualifications. See 8 CFR 214.2(o)(12)(ii).
    TN Classification. The TN nonimmigrant classification, established 
in the North American Free Trade Agreement,\18\ permits qualified 
Canadian and Mexican citizens to seek temporary entry into the United 
States to engage in business activities at a professional level. See 
INA section 214(e), 8 U.S.C. 1184(e); see also 8 CFR 214.6(b). The TN 
nonimmigrant worker may not intend to establish a business in the 
United States or be self-employed in this country, and he or she must 
be arriving pursuant to a prearranged agreement with a U.S. employer. 
Id. The TN nonimmigrant worker must also demonstrate that he or she 
possesses at least the minimum qualification prescribed for his or her 
respective profession and that he or she intends to remain in the 
United States temporarily. See 8 CFR 214.6(a), (d)(3)(ii). An eligible 
alien seeking TN classification may be granted TN status for an initial 
period not to exceed 3 years. See 8 CFR 214.6(e). Extensions of stay 
may be granted for periods not to exceed 3 years at a time. See 8 CFR 
214.6(h)(1)(iii). TN is a temporary nonimmigrant classification, 
although there is no specific limit on the total period of time an 
alien may remain in the United States in TN status as long as he or she 
continues to be engaged in TN business activities for a U.S. employer 
or entity at a professional level, and otherwise continues to properly 
maintain TN status. See 8 CFR 214.6(h)(1)(iv).
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    \18\ See 58 FR 69205 (Dec. 30, 1993); 58 FR 68526 (Dec. 28, 
1993).
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C. ACWIA and AC21

1. The American Competitiveness and Workforce Improvement Act of 1998
    ACWIA was enacted on October 21, 1998. Among other things, ACWIA 
was intended to address shortages of workers in the U.S. high-
technology sector. To increase the number of such workers in the United 
States, section 411 of ACWIA increased the annual numerical cap on H-1B 
visas from 65,000 to 115,000 in each of fiscal years (FY) 1999 and 
2000, and to 107,500 in FY 2001.\19\ See ACWIA section 411 (amending 
INA section 214(g)(1), codified at 8 U.S.C. 1184(g)(1)). The 
congressional statements accompanying ACWIA recognized that the 
continued competitiveness of the U.S. high-technology sector is 
``crucial for [U.S.] economic well-being as a nation, and for increased 
economic opportunity for American workers.'' See 144 Cong. Rec. 
S12,741, S12,749 (daily ed. Oct. 21, 1998) (statement of Sen. Spencer 
Abraham); see also id. (``This issue is not only about shortages, it is 
about opportunities for innovation and expansion, since people with 
valuable skills, whatever their national origin, will always benefit 
our nation by creating more jobs for everyone.'').\20\
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    \19\ Section 102(a) of AC21 further amended INA section 
214(g)(1) by increasing the annual numerical cap on H-1B visas to 
195,000 for each of the fiscal years 2001, 2002, 2003.
    \20\ Senator Abraham drafted and sponsored the original Senate 
bill for ACWIA, then titled the American Competitiveness Act, S. 
1723, 105th Cong. (1998), which passed the full Senate by a 78-20 
margin on May 18, 1998. 144 Cong. Rec. as S12,748-49 (daily ed. Oct. 
21, 1998). He negotiated with the House of Representatives on a 
compromise ACWIA bill and was deputized to negotiate in talks 
between Congress and the White House to finalize the bill.
---------------------------------------------------------------------------

    ACWIA also included several measures intended to improve 
protections for U.S. and H-1B nonimmigrant workers. Section 413 of the 
act provided enhanced penalties for employer violations of LCA 
obligations, as well as willful misrepresentations by employers in 
LCAs. See ACWIA section 413 (creating INA section 212(n)(2)(C), 
codified at 8 U.S.C. 1182(n)(2)(C)). Such enhancements included 
increased monetary penalties, as well as temporary prohibitions on the 
approval of certain types of petitions, such as H-1B petitions and 
employment-based immigrant visa petitions.\21\ Id. This prohibition 
against petition approval is often referred to as ``debarment.'' The 
severity of the penalty awarded to an employer depends upon the 
seriousness of the employer's violation, as determined by DOL. See INA 
section 212(n)(2)(C)(i)-(iii), 8 U.S.C. 1182(n)(2)(C)(i)-(iii). DOL is 
required to notify USCIS of the entities determined to be subject to 
debarment. See 20 CFR 655.855 and 656.31(f)(2).
---------------------------------------------------------------------------

    \21\ Legal Opinion: INS Procedure for Processing Debarment of 
Employer Pursuant to Sec. 212(n)(2)(C)(ii) of the INA, Genco Op. No. 
94-21, 1994 WL 1753125 (Apr. 12, 1994) (concluding that the 
determination of whether a section 212(n)(2)(C)(ii) violation has 
occurred rests solely with DOL, and that DHS must accept that 
determination).
---------------------------------------------------------------------------

    Section 413 of ACWIA also made it a violation for an H-1B employer 
to retaliate against an employee for providing information to the 
employer or other persons, or for cooperating in an investigation, 
related to an employer's violation of its LCA attestations and 
obligations. Employers are prohibited from taking retaliatory action in 
such situations, including any action ``to intimidate, threaten, 
restrain, coerce, blacklist, discharge, or in any other manner 
discriminate'' against an employee for ``disclos[ing] information to 
the employer, or to any other person, that the employee reasonably 
believes evidences [an LCA] violation, any rule or regulation 
pertaining to the statutory LCA attestation requirements, or for 
cooperating, or attempting to cooperate, in an investigation or 
proceeding pertaining to the employer's LCA compliance.'' See INA 
section 212(n)(2)(C)(iv), 8 U.S.C. 1182(n)(2)(C)(iv). Section 413 
further required the development of a process to enable H-1B 
nonimmigrant workers who file complaints with DOL regarding such 
illegal retaliation, and are otherwise eligible to remain and work in

[[Page 81909]]

the United States, to seek other appropriate employment in the United 
States. See INA section 212(n)(2)(C)(v), 8 U.S.C. 1182(n)(2)(C)(v).
    Section 412 of ACWIA created additional requirements for U.S. 
employers deemed to be ``H-1B dependent,'' see INA section 
212(n)(3)(A), 8 U.S.C. 1182(n)(3)(A), and those that have willfully 
failed to comply with their LCA obligations or who have misrepresented 
material facts in an LCA, see INA section 212(n)(1)(E)-(G), 8 U.S.C. 
1182(n)(1)(E)-(G). These U.S. employers are required to attest that 
they will not displace U.S. workers to fill a prospective position with 
an H-1B nonimmigrant worker, and that they took good faith steps to 
recruit qualified U.S. workers for the prospective H-1B position. Id. 
Employers are not subject to these additional non-displacement 
requirements, however, with regard to petitions for H-1B nonimmigrant 
workers who receive at least $60,000 in annual wages or have attained a 
master's or higher degree in a specialty related to the relevant 
employment. See ACWIA section 412 (creating INA section 
212(n)(1)(E)(ii) and (n)(3)(B), codified at 8 U.S.C. 1182(n)(1)(E)(ii) 
and (n)(3)(B)).
    Section 414 of ACWIA imposed a temporary fee on certain H-1B 
employers to fund, among other things, job training of U.S. workers and 
scholarships in the science, technology, engineering, and mathematics 
(STEM) fields. See ACWIA section 414 (creating INA section 214(c)(9), 
codified at 8 U.S.C. 1184(c)(9)). The ACWIA fee was initially scheduled 
to sunset on September 30, 2001. Public Law 106-311, however, increased 
the fee from $500 to $1,000 and extended the sunset provision to 
September 30, 2003. Public Law 106-311 also amended section 
214(c)(9)(A) of the INA, 8 U.S.C. 1184(c)(9), by specifying additional 
employers that are exempt from the ACWIA fee (i.e., employers in 
addition to the exempt employers described in section 212(p)(1) of the 
INA, 8 U.S.C. 1182(p)(1)). Exempt employers currently include 
institutions of higher education, nonprofit entities related or 
affiliated with such institutions, and nonprofit or governmental 
research organizations, among others. See INA section 214(c)(9)(A), 8 
U.S.C. 1184(c)(9)(A). Subsequently, the H-1B Visa Reform Act of 2004, 
enacted as part of the Consolidated Appropriations Act, 2005, Public 
Law 108-447, div. J, tit. IV, made the ACWIA fee permanent and raised 
it from $1,000 to $1,500 per qualifying petition filed with USCIS after 
December 8, 2004. This fee was also reduced to $750 for employers with 
no more than 25 full-time equivalent employees employed in the United 
States (including employees employed by any affiliate or subsidiary of 
such employer).
2. The American Competitiveness in the Twenty-first Century Act of 2000
    AC21 was enacted on October 17, 2000. It made numerous changes to 
the INA designed, among other things, to improve the U.S. economy in 
both the short and long term. First, AC21 sought to positively impact 
economic growth and job creation by immediately increasing the United 
States' access to high-skilled workers. See S. Rep. No. 260, at 10 
(``[A]rtificially limiting companies' ability to hire skilled foreign 
professionals will stymie our country's economic growth and thereby 
partially atrophy its creation of new jobs. . . . American workers' 
interests are advanced, rather than impeded, by raising the H-1B 
cap''). Second, AC21 sought to improve the education and training of 
U.S. workers in high-skilled sectors, and thereby produce a U.S. 
workforce better equipped to fill the need in such sectors, through the 
funding of scholarships and high-skilled training programs. See AC21 
section 111. As noted by the accompanying Senate Report, foreign-born 
high-skilled individuals have played an important role in U.S. economic 
prosperity and the competitiveness of U.S. companies in numerous 
fields. Id. AC21 sought to provide such benefits by making improvements 
to both the employment-based immigrant visa process and the H-1B 
specialty occupation worker program.
a. AC21 Provisions Relating to Employment-Based Immigrant Visas
    To improve the immigrant visa process for certain workers, AC21 
contained several provisions designed to improve access to employment-
based immigrant visas. Section 104 of AC21, for example, sought to 
ameliorate the impact on intending immigrants of the per-country 
limitations, which, as noted earlier, generally limit the number of 
immigrant visas that may be issued to the nationals of any one country 
to no more than 7 percent of the total number of such visas. See INA 
section 202(a)(2), 8 U.S.C. 1152(a)(2). Sections 104(a) and (b) of AC21 
amended the INA to excuse application of the per country limitations 
when such application would result in immigrant visas going unused in 
any quarter of the fiscal year. Specifically, these sections amended 
the INA so that when the number of employment-based immigrant visas 
authorized for issuance in a calendar quarter exceeds the number of 
qualified immigrants who may otherwise be issued such visas, the visas 
may be issued in the same quarter without regard to per-country 
limitations. See AC21 sections 104(a) and (b) (amending INA section 
202(a)(5), codified at 8 U.S.C. 1152(a)(5)); see also S. Rep. No. 260, 
106th Cong., 2nd Sess. at 2. This provision recognized ``the 
discriminatory effects of [the per-country limitations] on nationals 
from certain Asian Pacific nations,'' specifically Chinese and Indian 
nationals, which ``prevent[ed] an employer from hiring or sponsoring 
someone permanently simply because he or she is Chinese or Indian, even 
though the individual meets all other legal criteria.'' S. Rep. No. 
260, at 22.
    Section 104(c) of AC21 was designed to further ameliorate the 
impact of the per-country limitations on H-1B nonimmigrant workers who 
are the beneficiaries of approved EB-1, EB-2, or EB-3 immigrant visa 
petitions. Specifically, section 104(c) authorized the extension of H-
1B status beyond the statutory 6-year maximum for such individuals if 
immigrant visa numbers are not immediately available to them because 
the relevant preference category is already over-subscribed for that 
foreign national's country of birth. See AC21 section 104(c). In 
support of this provision, Congress noted that ``these immigrants would 
otherwise be forced to return home at the conclusion of their allotted 
time in H-1B status, disrupting projects and American workers.'' See S. 
Rep. No. 260, at 22. Section 104(c) ``enables these foreign nationals 
to remain in H-1B status until they are able to receive an immigrant 
visa and adjust their status within the United States, thus limiting 
the disruption to American businesses.'' Id.
    AC21 also sought to more generally ameliorate the impact of the 
lack of employment-based immigrant visas on the high-skilled 
beneficiaries of approved immigrant visa petitions. Sections 106(a) and 
(b) of AC21, as amended by section 11030A of the 21st Century DOJ 
Appropriations Act, Public Law 107-273(2002), authorized the extension 
of H-1B status beyond the statutory 6-year maximum for H-1B 
nonimmigrant workers who are being sponsored for LPR status by U.S. 
employers and are subject to lengthy adjudication or processing delays. 
Specifically, these provisions exempted H-1B nonimmigrant workers from 
the 6-year limitation on H-1B status contained in INA section 
214(g)(4), 8 U.S.C. 1184(g)(4), if 365 days or more have elapsed since 
the filing of a labor certification application (if such

[[Page 81910]]

certification is required under INA section 212(a)(5), 8 U.S.C. 
1182(a)(5)), or an immigrant visa petition under INA section 203(b), 8 
U.S.C. 1153(b). These provisions were intended to allow such high-
skilled individuals to remain in the United States as H-1B nonimmigrant 
workers, rather than being forced to leave the country and disrupt 
their employers due to a long pending labor certification application 
or immigrant visa petition. See S. Rep. No. 260, at 23.
    Finally, to provide stability and flexibility to beneficiaries of 
approved immigrant visa petitions subject to immigrant visa backlogs 
and processing delays, AC21 also provided certain workers the improved 
ability to change jobs or employers without losing their position in 
the immigrant visa queue. Specifically, section 106(c) of AC21 provides 
that certain immigrant visa petitions filed under the EB-1, EB-2, and 
EB-3 preference categories will remain valid with respect to a new 
qualifying job offer if the beneficiary changes jobs or employers, 
provided an application for adjustment of status has been filed and 
such application has been pending for 180 days or more. See AC21 
section 106(c) (creating INA section 204(j), codified at 8 U.S.C. 
1154(j)). In such cases, the new job offer must be in the same or a 
similar occupational classification as the job for which the original 
immigrant visa petition was filed. Id.
b. AC21 Provisions Seeking To Improve the H-1B Nonimmigrant Worker 
Classification
    As noted above, one of the principle purposes for the enactment of 
AC21 was to improve the country's access to high-skilled workers. As 
such, AC21 contains several additional provisions intended to expand 
and strengthen the H-1B program.
i. Exemptions From the H-1B Numerical Cap
    Section 103 of AC21 amended the INA to create an exemption from the 
H-1B numerical cap for those H-1B nonimmigrant workers who are employed 
or offered employment at an institution of higher education, a 
nonprofit entity related or affiliated to such an institution, or a 
nonprofit research or governmental research organization. See INA 
section 214(g)(5)(A) and (B); 8 U.S.C. 1184(g)(5)(A) and (B).\22\ 
Congress deemed such employment advantageous to the United States. 
Among other things, Congress recognized a short- and long-term need to 
increase the number of workers in specialty occupation fields, and it 
determined that increasing the number of high-skilled foreign nationals 
working in specialty occupations at U.S. institutions of higher 
education would increase the number of Americans who will be ready to 
fill specialty occupation positions upon completion of their education. 
See S. Rep. No. 260, at 21-22. Congress reasoned that ``by virtue of 
what they are doing, people working in universities are necessarily 
immediately contributing to educating Americans.'' Id. at 21. Congress 
also recognized that U.S. institutions of higher education are on a 
different hiring cycle from other U.S. employers, and in years of high 
H-1B demand, these institutions would be unable to hire cap-subject H-
1B nonimmigrant workers. Id. at 22.
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    \22\ See USCIS Memorandum from Michael Aytes, ``Guidance 
Regarding Eligibility for Exemption from the H-1B Cap Based on Sec.  
103 of the American Competitiveness in the Twenty-First Century Act 
of 2000 (AC21) (Public Law 106-313) 2-4 (June 6, 2006)'' (``Aytes 
Memo June 2006'').
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    For purposes of this H-1B numerical cap exemption, the term 
``institution of higher education'' is given the same meaning as that 
set forth in section 101(a) of the Higher Education Act of 1965, Public 
Law 89-329, 79 Stat. 1224 (1965), as amended (codified at 20 U.S.C. 
1001(a) (``Higher Education Act'').\23\ See INA section 214(g)(5)(A); 8 
U.S.C. 1184(g)(5)(A). The terms ``related or affiliated nonprofit 
entity,'' and ``nonprofit research organization or governmental 
research organization'' are defined at 8 CFR 214.2(h)(19)(iii)(B) and 8 
CFR 214.2(h)(19)(iii)(C), respectively, and adopted as a matter of 
interpretation in the cap exemption context.\24\
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    \23\ Section 101(a) of the Higher Education Act of 1965, as 
amended, defines ``institution of higher education'' as an 
educational institution in any State that--
    (1) admits as regular students only persons having a certificate 
of graduation from a school providing secondary education, or the 
recognized equivalent of such a certificate, or persons who meet the 
requirements of [8 U.S.C. 1091(d)];
    (2) is legally authorized within such State to provide a program 
of education beyond secondary education;
    (3) provides an educational program for which the institution 
awards a bachelor's degree or provides not less than a 2-year 
program that is acceptable for full credit toward such a degree, or 
awards a degree that is acceptable for admission to a graduate or 
professional degree program, subject to review and approval by the 
Secretary [of Education];
    (4) is a public or other nonprofit institution; and
    (5) is accredited by a nationally recognized accrediting agency 
or association, or if not so accredited, is an institution that has 
been granted preaccreditation status by such an agency or 
association that has been recognized by the Secretary [of Education] 
for the granting of preaccreditation status, and the Secretary [of 
Education] has determined that there is satisfactory assurance that 
the institution will meet the accreditation standards of such an 
agency or association within a reasonable time.
    \24\ See Aytes Memo June 2006, at 4.
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ii. Application of the H-1B Numerical Cap to Persons Previously Counted
    Section 103 of AC21 also amended the INA to ensure that H-1B 
nonimmigrant workers can change jobs or employers without requiring 
that they again count against the H-1B cap. Specifically, section 103 
provides that an individual who has been counted against the H-1B 
numerical cap within the 6 years prior to petition approval will not be 
counted against the cap unless that individual would be eligible for a 
new 6-year period of authorized H-1B admission. See INA section 
214(g)(6); 8 U.S.C. 1184(g)(6). As noted above, an individual 
previously in the United States on H-1B nonimmigrant status is eligible 
for a full 6 years of authorized admission as an H-1B nonimmigrant 
after residing and being physically present outside the United States 
for the immediate prior year. See 8 CFR 214.2(h)(13)(iii)(A).
    Section 103 of AC21 also amended the INA to address cases in which 
an H-1B nonimmigrant worker seeks to change employment from a cap-
exempt entity to a ``cap-subject'' entity. Specifically, section 103 
provides that once employment ceases with respect to a cap-exempt 
entity, the H-1B nonimmigrant worker will be subject to the cap if not 
previously counted and no other exemptions from the cap apply. See INA 
section 214(g)(6), 8 U.S.C. 1184(g)(6).
iii. H-1B Portability
    Section 105 of AC21 further improved the H-1B program by increasing 
job portability for H-1B nonimmigrant workers. Specifically, section 
105 allows an H-1B nonimmigrant worker to begin concurrent or new H-1B 
employment upon the filing of a timely, non-frivolous H-1B petition. 
See INA section 214(n), 8 U.S.C. 1184(n). The H-1B nonimmigrant worker 
must have been lawfully admitted to the United States, must not have 
worked without authorization subsequent to such lawful admission, and 
must be in a period of stay authorized by the Secretary.\25\ Employment 
authorization based on the pending petition continues until 
adjudication. See INA section 214(n)(1), 8 U.S.C. 1184(n)(1). If the H-
1B petition is denied, the employment

[[Page 81911]]

authorization provided under this provision ceases. Id. Congress 
created such H-1B portability to ``allow an H-1B visa holder to change 
employers at the time a new employer files the initial paperwork, 
rather than having to wait for the new H-1B petition to be approved. 
This responds to concerns raised about the potential for exploitation 
of H-1B visa holders as a result of a specific U.S. employer's control 
over the employee's legal status.'' See S. Rep. No. 260, at 22-23.
---------------------------------------------------------------------------

    \25\ See USCIS Memorandum from Donald Neufeld, ``Consolidation 
of Guidance Concerning Unlawful Presence for Purposes of Sections 
212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act'' (May 6, 2009) 
(``Neufeld Memo May 2009'') (describing various ``periods of 
authorized stay'').
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D. The Processing of Applications for Employment Authorization 
Documents

    The Secretary of Homeland Security has broad authority to extend 
employment authorization to noncitizens in the United States. See, 
e.g., section 274A(h)(3)(B) of the INA, 8 U.S.C. 1324a(h)(3)(B). DHS 
regulations at 8 CFR 274a.12(a), (b), and (c) describe three broad 
categories of foreign nationals authorized to work in the United 
States. Individuals in the first class, described at 8 CFR 274a.12(a), 
are authorized to work in the United States incident to their 
immigration status, without restriction on the location of their 
employment or the type of employment they may accept. Such individuals 
who travel to the United States by air and sea may electronically 
access an Arrival-Departure Record (Form I-94) indicating their 
nonimmigrant status and attendant employment authorization; such 
individuals who are admitted at land border port of entry may receive a 
paper Form I-94. Those individuals seeking to obtain an EAD (Form I-
766) containing both evidence of employment authorization and a 
photograph typically must file a separate application with USCIS. See 8 
CFR 274a.13(a).
    Individuals in the second class, described at 8 CFR 274a.12(b), are 
also employment authorized incident to their nonimmigrant status, but 
such employment authorization is valid only with a specific employer. 
Individuals in this second group are not issued an EAD; instead these 
individuals obtain an Arrival-Departure Record (Form I-94) indicating 
their nonimmigrant status and attendant employment authorization and do 
not file separate requests for evidence of employment authorization.
    Individuals in the third class, described at 8 CFR 274a.12(c), are 
required to apply for employment authorization and may begin working 
only if USCIS approves their application. Such employment authorization 
is subject to the restrictions described in the regulations for his or 
her respective employment eligibility category. With respect to 
individuals described in the first and third categories, USCIS has the 
discretion to establish a specific validity period for the EAD.
    Individuals requesting an EAD must file an Application for 
Employment Authorization (Form I-765) with USCIS in accordance with the 
form instructions. See 8 CFR 274a.13. Under current regulations, if 
USCIS does not adjudicate an Application for Employment Authorization 
within 90 days from the date USCIS receives the application, an 
applicant will be granted an interim document evidencing employment 
authorization with a validity period not to exceed 240 days. See 8 CFR 
274a.13(d). Generally, the approval of an Application for Employment 
Authorization by an individual described in 8 CFR 274a.12(c) is within 
the discretion of USCIS.\26\ And there is no right to appeal the denial 
of an Application for Employment Authorization. See 8 CFR 274a.13(c).
---------------------------------------------------------------------------

    \26\ Approval of an application for employment authorization 
based on a pending asylum application is not discretionary. See 8 
CFR 274a.13(a)(1).
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E. The Increasing Damage Caused by Immigrant Visa Backlogs

    This proposed rule is intended, in part, to address some of the 
challenges that flow from the statutory limits on immigrant visas, 
consistent with existing DHS authorities. As noted above, the number of 
employment-based immigrant visas allocated per year has remained 
unchanged since the passage of the Immigration Act of 1990. In the 
intervening 25 years, the country's economy has expanded dramatically. 
The U.S. economy, as measured by U.S. gross domestic product (GDP), has 
increased by 78 percent from $8.955 trillion in 1990 to $15.961 
trillion in 2014.\27\ The per capita share of GDP has also increased by 
almost 40 percent from $35,794 in 1990 to $50,010 in 2014.\28\ And the 
number of entities doing business in the United States increased at 
least 24 percent during the same period.\29\ Over the same period, 
employer demand for immigrant visas has increasingly outpaced supply, 
resulting in growing waits for sponsored employees to obtain their LPR 
status. Such delays have resulted in substantial inequalities and other 
hardships flowing from limits on a sponsored worker's ability to seek 
employment to enhance his or her skills and on the ability of employers 
to promote them or otherwise change their positions.
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    \27\ U.S. Department of Commerce, Bureau of Economic Analysis, 
Table 1.1.6 Real Gross Domestic Product, Chained (2009) Dollars, 
https://www.bea.gov/iTable/index_nipa.cfm.
    \28\ U.S. Department of Commerce, Bureau of Economic Analysis, 
Table 7.1 Selected Per Capita Product and Income Series and Chained 
(2009) Dollars, https://www.bea.gov/iTable/index_nipa.cfm.
    \29\ Compare U.S. Census data collected in 1992 identifying over 
4.61 million firms doing business in the United States, available at 
http://www.census.gov/prod/www/economic_census.html, with U.S. 
Census data collected in 2012 identifying over 5.72 million firms 
doing business, available at http://www.census.gov/econ/susb/.
---------------------------------------------------------------------------

    Since AC21 was enacted in October of 2000, workers seeking LPR 
status in the United States--particularly within the EB-2 and EB-3 
preference categories--have faced increasing challenges as a 
consequence of the escalating wait times for immigrant visas. It often 
takes many years before an immigrant visa number becomes available. For 
some, the delays can last more than a decade. The combination of 
numerical limitations in the various employment-based preference 
categories with the per-country limitations that further limit visa 
availability to certain workers, has produced significant 
oversubscription in the EB-2 and EB-3 categories, particularly for 
Indian and Chinese nationals. For instance, the current approximate 
backlog for an EB-3 immigrant visa for workers from most countries is 
only a few months. For nationals of certain countries applying in the 
EB-3 category, delays have extended more than a decade.\30\
---------------------------------------------------------------------------

    \30\ According to the DOS Visa Bulletin for November 2015, 
immigrant visas are currently issuable to all persons qualifying 
under the EB-1 preference category. The EB-2 category Application 
Final Action date is current for all countries except for China and 
India, with cut-off dates for nationals of those countries currently 
set between 2006 and 2012 (a wait of 3 to 9 years). The Application 
Final Action cut-off dates for nationals of most countries under the 
EB-3 preference category are set at August 15, 2015 (a wait of less 
than one month). But for Indian nationals, the Application Final 
Action cut-off dates are set at April 1, 2004 (a wait of over 10 
years). See DOS Visa Bulletin for November 2015, http://www.travel.state.gov/content/visas/en/law-and-policy/bulletin/2016/visa-bulletin-for-november-2015.html.
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    Given the long and growing delays for many beneficiaries of 
employment-based immigrant visa petitions, the challenges facing such 
workers and the U.S. economy, while similar to those recognized by 
AC21, are substantially greater than those that existed at the time 
AC21 passed. Although DHS has worked diligently to improve processing 
times during the intervening period, visa backlogs due to statutory 
numerical limits for many individuals seeking EB-2 and EB-3 
classification have grown significantly.\31\ DHS recognizes the

[[Page 81912]]

resulting realities confronting individuals seeking employment-based 
permanent residence who, due to immigrant visa unavailability, are 
required to wait many years for visa numbers to become available before 
they can file applications for adjustment of status or seek immigrant 
visas abroad and become LPRs. In many instances, these individuals are 
in the United States in a nonimmigrant, employer-specific temporary 
worker category (e.g., H-1B or L-1 visa classification) and may be 
unable to accept promotions or otherwise change jobs or employers 
without abandoning their existing efforts--including great investments 
of time and money--to become permanent residents. Their employment 
opportunities may be limited to their original job duties with the U.S. 
employer that sponsored their temporary admission to the United States, 
despite the fact that they may have gained professional experience that 
would otherwise have allowed them to progress substantially in their 
careers.
---------------------------------------------------------------------------

    \31\ According to the DOS Visa Bulletin for October 2000 (the 
month AC21 was enacted), visa availability was current for all 
persons qualifying under the EB-1 preference category. The EB-2 
category was current for all countries except for China and India. 
The EB-2 cut-off dates were March 8, 1999 for persons chargeable to 
China (a wait of 19 months) and November 1, 1999 for persons 
chargeable to India (a wait of 11 months). The EB-3 category 
likewise was current for all countries except for China and India, 
with a cut-off date of March 15, 1998 for individuals charged to 
China (a wait of 31 months) and February 8, 1997 for individuals 
charged to India (a wait of 44 months). See http://dosfan.lib.uic.edu/ERC/visa_bulletin/2000-10bulletin.html.
---------------------------------------------------------------------------

    Indeed, many individuals subject to the immigrant visa backlogs 
confront the choice between remaining employed in a specific job under 
the same terms and conditions originally offered to them or abandoning 
either their place in the immigrant visa queue or the pursuit of LPR 
status altogether. When such a worker changes employers or jobs--
including a change to an identical job with a different employer or to 
a related job for the same employer--the worker is typically subject to 
uncertainty as well as expensive additional immigration processes, 
greatly discouraging any such changes. Indeed, under current 
regulations, some changes in employment could result in the loss of 
nonimmigrant status, loss of the ability to change to another 
nonimmigrant status, loss of the ability to obtain an immigrant visa or 
adjust to LPR status, and the need for the affected worker and his or 
her family to immediately depart the United States. As a result, these 
employees often suffer through many years of effective career 
stagnation, as they are largely dependent on current employers for 
immigration status and are substantially restricted in their ability to 
change employers or even accept promotions from, or make lateral 
movements within, their current employers.
    Simply put, many workers in the immigrant visa process are not free 
to consider all available employment and career development 
opportunities. This effectively prevents U.S. employers from treating 
them like the high-potential individuals the employer hired them to be, 
thus restricting productivity and the promise they offer to our 
nation's economy and undermining the very purpose of the employment-
based immigrant visa system that prioritizes such workers for LPR 
status. The lack of predictability and flexibility for such workers may 
also prevent them from otherwise investing in and contributing to the 
local, regional, and national economy or fully assimilating into 
American society.

IV. Proposed Regulatory Changes

    DHS is proposing to amend its regulations related to certain 
employment-based immigrant and nonimmigrant visa programs. The proposed 
amendments are intended to benefit U.S. employers and workers 
participating in these programs, including by: Streamlining the 
processes for employer sponsorship of individuals for permanent 
residence; ameliorating some of the effects of immigrant visa backlogs 
by increasing job portability and otherwise providing stability and 
flexibility for such workers; and providing additional transparency and 
consistency in the application of agency policies and procedures 
related to these programs. These changes are primarily aimed at 
improving the ability of U.S. employers to employ and retain workers 
who are beneficiaries of approved immigrant visa petitions and are 
waiting for LPR status, while increasing the ability of such workers to 
further their careers by accepting promotions, making lateral changes 
within current employers, changing employers, and pursuing other 
employment opportunities.
    The improvements proposed in this rulemaking would help DHS fulfill 
its responsibility to assist U.S. employers, U.S. workers, and foreign 
national workers, while strengthening and protecting the U.S. economy. 
The immigrant and nonimmigrant visa programs at issue in this proposed 
rule were designed to improve the ability of U.S. employers to hire and 
retain critical foreign workers, while creating job opportunities for 
and protecting U.S. workers. Consistent with these provisions, the 
proposed rule would enhance the Department's ability to administer the 
INA in a manner that better accounts for fluctuating economic 
conditions and that provides additional stability and flexibility to 
regulated persons and entities.

A. Proposed Implementation of AC21 and ACWIA

    DHS proposes to clarify and improve longstanding agency policies 
and procedures established in response to certain sections of AC21 and 
ACWIA. These sections were intended, among other things, to provide 
greater flexibility and job portability to certain workers, 
particularly those who have been sponsored for LPR status by their 
employers, while protecting U.S. workers, enhancing opportunities for 
innovation and expansion, and maintaining U.S. competitiveness. The 
proposed rule would further clarify and improve agency policies and 
procedures in this area--policies and procedures that have long been 
set through a series of policy memoranda and a precedent decision of 
the USCIS Administrative Appeals Office. By establishing such policies 
in regulation, DHS would provide greater transparency and certainty to 
affected employers and workers and increase consistency among agency 
adjudications. In addition, the proposed rule would clarify several 
interpretive questions raised by AC21 and ACWIA.
    As noted above, except where improvements on current practices are 
noted in the following sections, DHS intends the following proposals to 
effectively capture the longstanding policies and procedures that have 
developed since enactment of AC21 and ACWIA. The Department welcomes 
all comments on these proposals, including those that identify any such 
proposals that commenters believe are inconsistent with current 
practices (and not identified as such in the preamble), so that any 
such inconsistencies can be resolved in the final rule.
1. Extending H-1B Nonimmigrant Status for Certain Individuals Who Are 
Being Sponsored for Lawful Permanent Residence
    DHS proposes to codify in regulation and improve longstanding 
agency policies and practices related to two provisions in AC21 that 
allow for certain individuals who are being sponsored by employers for 
permanent residence to obtain H-1B status beyond the general 6-year 
maximum period of stay. The first provision provides an exemption to 
certain beneficiaries of approved employment-based immigrant

[[Page 81913]]

visa petitions who are subject to per-country limitations on immigrant 
visas that prevent the filing and adjudication of applications for 
adjustment of status. The second provision provides an exemption to 
certain H-1B nonimmigrant workers who are being sponsored for permanent 
residence by U.S. employers and are subject to certain lengthy 
adjudication delays.
a. H-1B Extensions for Individuals Affected by the Per-Country 
Limitations
    First, the proposed rule would clarify and improve DHS' 
implementation of section 104(c) of AC21. See proposed 8 CFR 
214.2(h)(13)(iii)(E). This section authorizes approval of H-1B status 
beyond the general 6-year maximum period for certain beneficiaries of 
approved EB-1, EB-2, and EB-3 immigrant visa petitions. See AC21 
section 104(c). Specifically, section 104(c) authorizes such an 
exemption from the 6-year limit when the H-1B petitioner can 
demonstrate that an immigrant visa is not available to the beneficiary 
at the time the H-1B petition is filed because the immigrant visa 
classification sought is already over-subscribed for that beneficiary's 
country of birth (i.e., is subject to the per-country limitations on 
immigrant visas). Id.
    Consistent with current practice, DHS proposes that such exemptions 
be granted in 3-year increments until USCIS adjudicates the 
beneficiary's adjustment of status application. See proposed 8 CFR 
214.2(h)(13)(iii)(E)(1). Although the heading for section 104(c) 
describes a ``one-time protection,'' the statutory text makes clear 
that the exemption remains available until the beneficiary has an EB-1, 
EB-2, or EB-3 immigrant visa number immediately available to him or 
her. See AC21 section 104(c) (authorizing H-1B extensions under this 
exemption ``until the alien's application for adjustment of status has 
been processed and a decision made thereon''). As such, the proposed 
rule ``enables these individuals to remain in H-1B status until they 
are able to receive an immigrant visa and adjust their status within 
the United States, thus limiting the disruption to American 
businesses.'' See S. Rep. No. 260, at 22. Moreover, this proposal would 
allow DHS to review the continued eligibility of the H-1B nonimmigrant 
worker in 3-year intervals, which is consistent with the duration of H-
1B status awarded under general H-1B provisions. See 8 CFR 
214.2(h)(9)(iii)(A)(1) and (h)(15)(ii)(B)(1). An H-1B petition filed 
under this provision may include any time remaining within the normal 
6-year period of authorized H-1B stay \32\ in addition to the exemption 
request, but in no case may the approval period exceed 3 years or the 
validity period of the LCA. See proposed 8 CFR 214.2(h)(13)(iii)(E)(5).
---------------------------------------------------------------------------

    \32\ Where applicable, the time remaining within the normal 6-
year period (``remainder time'') may include periods in which the 
beneficiary was outside the United States during qualifying H-1B or 
L-1 visa petition validity that the petitioner seeks to recapture 
for the beneficiary. As noted previously, USCIS counts any time 
spent in H-1B or L-1 status towards the limitation for either 
classification. See 8 CFR 214.2(h)(13)(i)(B) and 214.2(l)(12)(i).
---------------------------------------------------------------------------

    DHS also proposes, consistent with current policy guidance, to make 
this exemption available to individuals who remain eligible for an 
additional period of admission in H-1B status, whether or not such 
individuals are physically in the United States on H-1B status at the 
time the H-1B petition is filed.\33\ See proposed 8 CFR 
214.2(h)(13)(iii)(E)(3). Section 104(c) of AC21 does not specifically 
limit the granting of H-1B status under its provisions to only those 
individuals currently in H-1B status within the United States. Rather, 
as is stated in current policy guidance, DHS interprets the provision 
to require only that the individual have previously held H-1B status 
and be otherwise eligible for an H-1B approval, including through an 
extension of current H-1B status, a change to H-1B status, or 
notification to a U.S. consulate or port of entry (if visa exempt).\34\ 
The petitioner bears the burden of proving the individual's eligibility 
under this provision.
---------------------------------------------------------------------------

    \33\ Aytes Memo Dec. 2006 supra note 11 at 3-4.
    \34\ Id.
---------------------------------------------------------------------------

    Consistent with current practice, DHS proposes to allow any 
qualified H-1B petitioner to file for an exemption under section 104(c) 
with respect to any qualified beneficiary of an approved EB-1, EB-2, or 
EB-3 immigrant visa petition. See proposed 8 CFR 
214.2(h)(13)(iii)(E)(4). There is no requirement that the H-1B 
petitioner be the same employer as that listed on the qualifying 
immigrant visa petition, which by definition contemplates an offer of 
future employment upon a grant of permanent residence.\35\ Similarly, 
the H-1B nonimmigrant worker can rely on any currently approved and 
qualifying immigrant visa petition, even if the H-1B nonimmigrant 
worker had previously been granted an exemption under section 104(c) 
based on a different petition.
---------------------------------------------------------------------------

    \35\ See, e.g., Matter of Rajah, 25 I&N Dec. 127, 132-133 (BIA 
2009).
---------------------------------------------------------------------------

    As discussed later in this proposed rule, however, DHS is 
effectively proposing to improve access to exemptions under section 
104(c) by proposing amendments to DHS regulations promulgated under 
section 205 of the INA, 8 U.S.C. 1155, that govern when approvals of 
immigrant visa petitions are automatically revoked. See Section IV.B. 
Pursuant to these amendments, employment-based immigrant visa petitions 
that have been approved for 180 days or more would no longer have such 
approval automatically revoked based only on withdrawal by the 
petitioner or termination of the petitioner's business. See proposed 8 
CFR 205.1(a)(3)(iii)(C) and (D). As long as such an approval has not 
been revoked for fraud, material misrepresentation, the invalidation or 
revocation of a labor certification, or USCIS error, the petition will 
generally continue to be valid with regard to the beneficiary for 
various job portability and status extension purposes under the 
immigration laws. Id. As further described below, this change would 
effectively improve the ability of H-1B nonimmigrants with approved EB-
1, EB-2, or EB-3 immigrant visa petitions to rely on such petitions for 
obtaining exemptions under section 104(c) of AC21.
    Finally, the proposed rule, as per current practice, would allow 
exemptions authorized under section 104(c) of AC21 only with respect to 
the principal beneficiaries of employment-based immigrant visa 
petitions, and not any derivative beneficiaries named in such petitions 
who may also be in H-1B status. See proposed 8 CFR 
214.2(h)(13)(iii)(E)(6). Section 104(c) expressly allows H-1B 
nonimmigrant status beyond the six-year general limitation for ``the 
beneficiary of a petition filed under section 204(a) of [the INA] for a 
preference status under paragraph (1), (2), or (3) of section 203(b) 
[of the INA].'' AC21 section 104(c). Section 203(b), in turn, applies 
to principal beneficiaries of immigrant visa petitions, but not 
derivative beneficiaries who are separately addressed in section 203(d) 
of the INA. Compare INA section 203(b), 8 U.S.C 1153(b), with INA 
section 203(d), 8 U.S.C 1153(d). The reference to a single beneficiary 
(i.e., ``the beneficiary'') in section 104(c) of AC21 further supports 
the interpretation that the provision applies only to the principal 
beneficiary of the immigrant visa petition. As noted above, however, 
the spouse or dependent children of H-1B nonimmigrant workers are 
eligible for H-4 status and are subject to the same period of 
authorized stay as the principal H-1B nonimmigrant worker. Therefore, 
eligible H-4 spouses and

[[Page 81914]]

dependent children may be granted H-4 status during the period the H-1B 
nonimmigrant spouse or parent maintains H-1B status under this 
exemption.
    Thus, if both spouses are H-1B nonimmigrant workers, to extend 
their H-1B authorized admission period under section 104(c) of AC21, 
each spouse would individually have to be the beneficiary of an 
approved EB-1, EB-2, or EB-3 immigrant visa petition. If only one 
spouse is eligible for the exemption as an H-1B nonimmigrant, the 
spouse who is not eligible could seek a change of status to H-4 status 
and, if otherwise eligible, may remain in H-4 status, as described 
above. While such a spouse may no longer be eligible to be employed as 
an H-1B nonimmigrant, certain H-4 spouses may be eligible to apply for 
and obtain work authorization pursuant to 8 CFR 214.2(h)(9)(iv), 
including, among others, those whose H-1B nonimmigrant spouse is the 
beneficiary of an approved EB-1, EB-2, or EB-3 immigrant visa petition.
    DHS invites the public to comment on all aspects of this proposal.
b. H-1B Extensions for Individuals Affected by Lengthy Adjudication 
Delays
    Second, the proposed rule would clarify and improve DHS' 
implementation of sections 106(a) and (b) of AC21, as amended by the 
21st Century DOJ Appropriations Act. See proposed 8 CFR 
214.2(h)(13)(iii)(D). These provisions authorize approval of H-1B 
status beyond the general 6-year maximum period for certain H-1B 
nonimmigrant workers who are being sponsored by their employers for 
permanent residence and are subject to lengthy adjudication delays. See 
AC21 section 106(a) and (b). Specifically, section 106(b) provides 
extensions of H-1B status in 1-year increments for H-1B nonimmigrant 
workers seeking LPR status through employment if 365 days or more have 
passed since the filing by a U.S. employer of a labor certification 
application or an employment-based immigrant visa petition on the 
nonimmigrant's behalf. Id. These 1-year extensions would generally 
remain available until a final decision is made to grant or deny the 
pertinent labor certification application or immigrant visa petition, 
or to grant or deny the beneficiary's application for adjustment of 
status or for an immigrant visa. Id.
    Consistent with existing policy, DHS proposes to make H-1B 
extensions under section 106(b) available to workers who remain 
eligible for additional periods of H-1B status, whether or not such 
individuals are in H-1B status or in the United States at the time the 
H-1B petition is filed. See proposed 8 CFR 214.2(h)(13)(iii)(D)(1). DHS 
also proposes to allow the H-1B petitioner to file for an extension 
under section 106(b) with respect to any qualifying labor certification 
application or employment-based immigrant visa petition, pursuant to 
section 106(a) of AC21, as amended. See proposed 8 CFR 
214.2(h)(13)(iii)(D)(6).
    As with section 104(c), section 106 of AC21 does not limit its 
application only to those individuals currently in H-1B status within 
the United States. DHS interprets the provision to require only that 
the individuals have previously been issued H-1B status, meet the 
requirements of section 106(a), and are otherwise eligible for an H-1B 
approval.\36\ Also like section 104(c), section 106 contains no 
requirement that the H-1B petitioner be the same employer as that 
listed on the labor certification application or immigrant visa 
petition in order to seek an exemption from the six-year period of 
authorized admission. The H-1B nonimmigrant worker can thus rely on any 
qualifying labor certification application or immigrant visa petition, 
even if the nonimmigrant had previously been granted an extension under 
section 106(b) based on a different application or petition. The 
petitioner bears the burden of proving the individual's eligibility 
under these provisions.
---------------------------------------------------------------------------

    \36\ Aytes Memo Dec. 2006, at 3.
---------------------------------------------------------------------------

    DHS also proposes to conform its regulations with existing policy 
in this area by requiring the prospective H-1B employer to file an H-1B 
petition demonstrating that the beneficiary has previously held H-1B 
status and that 365 days has elapsed or will have elapsed between: (1) 
The filing of an application for labor certification or an employment-
based immigrant visa petition on behalf of the individual; and (2) the 
date on which the individual reached or will reach the 6-year 
limitation on H-1B admission. See proposed 8 CFR 
214.2(h)(13)(iii)(D)(1) and (2). DHS further proposes, consistent with 
current policy, to grant H-1B approvals in 1-year increments for such 
individuals until either the application for labor certification 
expires or a final decision is made to: (1) Deny the labor 
certification application; (2) revoke or invalidate approval of the 
labor certification application; (3) deny the immigrant visa petition; 
(4) revoke approval of the immigrant visa petition; (5) grant or deny 
the individual's application for adjustment of status or for an 
immigrant visa; or (6) administratively close the application for 
permanent labor certification, immigrant visa petition, or application 
for adjustment of status. See proposed 8 CFR 
214.2(h)(13)(iii)(D)(2).\37\ DHS notes that in cases involving denials, 
invalidations, or revocations of labor certification applications and 
denials of immigrant visa petitions, the petitioner may 
administratively appeal those determinations with DOL and USCIS, 
respectively. Under this proposed rule, a denial or revocation would 
not be considered final by USCIS during the period authorized to file 
such an administrative appeal, or during the period in which any such 
appeal is pending. See proposed 8 CFR 214.2(h)(13)(iii)(D)(3). During 
any such period, as with current practice, the petition or labor 
certification application that is the subject of the appeal may be used 
for purposes of seeking an extension of H-1B status under this 
section.\38\
---------------------------------------------------------------------------

    \37\ See Aytes Memo Dec. 2005, at 6.
    \38\ See Aytes Memo Dec. 2005, at 6.
---------------------------------------------------------------------------

    Also consistent with existing policy, DHS proposes not to grant an 
extension of H-1B status under section 106(b) if, at the time the 
extension request is filed, the labor certification is deemed expired 
under DOL regulations. See proposed 8 CFR 214.2(h)(13)(iii)(D)(2). 
Under current DOL regulations, ``[a]n approved permanent labor 
certification granted on or after July 16, 2007 expires if not filed in 
support of a Form I-140 [employment-based immigrant visa] petition with 
[DHS] within 180 calendar days of the date [DOL] granted the 
certification.'' 20 CFR 656.30(b)(1). DHS treats a labor certification 
that has expired similarly to one that has been denied or revoked. 
Indeed, DHS automatically rejects or denies immigrant visa petitions 
related to expired labor certifications, effectively barring the 
granting of extensions under section 106(b) in such cases.\39\
---------------------------------------------------------------------------

    \39\ DHS also proposes to conform its regulations to current 
policy regarding the substitution of beneficiaries in labor 
certification applications. See proposed 8 CFR 
214.2(h)(13)(iii)(D)(4). In 2007, DOL changed its regulations to 
effectively prohibit the substitution of labor certification 
beneficiaries, except for substitution requests submitted on or 
before July 16, 2007. See 20 CFR 656.11(a). With respect to 
substitutions occurring before July 16, 2007, DHS policy now 
provides that for purposes of section 106(b) of AC21, the labor 
certification application may only be used for the most recently 
substituted individual. See Neufeld Memo May 2008, at 5 n.4. DHS 
proposes to conform its regulations accordingly, which will prevent 
multiple individuals from using the same labor certification to 
obtain H-1B extensions under this proposed rule.
---------------------------------------------------------------------------

    DHS also proposes to conform its regulations with current policy by

[[Page 81915]]

allowing petitioners to file H-1B petitions under sections 106(a) and 
(b) as early as 6 months prior to the requested H-1B start date. See 
proposed 8 CFR 214.2(h)(13)(iii)(D)(5). The petitioner would generally 
be required to demonstrate that the individual will meet the 
requirements of sections 106(a) and (b) as of the date he or she will 
reach the end of the 6-year period of H-1B admission. This request may 
include any time remaining within the general 6-year period, including, 
for example, periods of time spent outside the United States during H-
1B petition validity, for which ``recapture'' of H-1B remainder time is 
sought, as well as any H-1B ``remainder'' periods available to the 
foreign national.\40\ But in no case may the approval period exceed 3 
years or the validity period of the LCA. See proposed 8 CFR 
214.2(h)(13)(iii)(D)(5); see also 8 CFR 214.2(h)(9)(iii)(A)(1) and 
(h)(15)(ii)(B).
---------------------------------------------------------------------------

    \40\ See Aytes Memo Dec. 2006, at 4. (``The `remainder' period 
of the initial six-year admission period refers to the full six-year 
period of admission minus the period of time that the individual 
previously spent in the United States in valid H-1B status.'') USCIS 
policy relating to such ``recapture'' is discussed in greater detail 
below at section IV.C.(2), ``Calculating the 6-Year H-1B Authorized 
Admission Period.'' The ``remainder'' period is discussed at 
IV.C.(2), ``Recapture of H-1B Remainder Period.''
---------------------------------------------------------------------------

    Moreover, each approval granted under sections 106(a) and (b) will 
provide the beneficiary with a new date upon which the limitation on H-
1B admission will be reached. Employers filing an H-1B petition seeking 
a second or subsequent extension of H-1B status for a beneficiary under 
sections 106(a) and (b) must demonstrate that a qualifying labor 
certification or immigrant visa petition was filed at least 365 days 
prior to the new H-1B expiration date authorized under that 
section.\41\ See proposed 8 CFR 214.2(h)(13)(iii)(D)(7). However, only 
one labor certification application or immigrant visa petition may be 
used to establish eligibility in support of any single H-1B petition 
filed under sections 106(a) and (b). A petitioner may not aggregate the 
days on which multiple labor certification applications or immigrant 
visa petitions are on file in order to satisfy the 365-day requirement. 
See proposed 8 CFR 214.2(h)(13)(iii)(D)(8).
---------------------------------------------------------------------------

    \41\ As noted above, the H-1B petitioner need not be the same 
employer that filed the labor certification or immigrant visa 
petition.
---------------------------------------------------------------------------

    DHS proposes, consistent with current practice, to allow 
applications for extensions under section 106(b) to be filed only by 
principal beneficiaries seeking to obtain status under section 203(b) 
of the INA, and not by derivative beneficiaries described in section 
203(d) of the INA. See proposed 8 CFR 214.2(h)(13)(iii)(D)(9). Section 
106(a) expressly limits eligibility to individuals who have been 
accorded H-1B status and who have had a labor certification application 
or employment-based immigrant visa petition filed on their behalf. See 
AC21 section 106(a), as amended. H-4 dependents do not meet these 
statutory criteria. As noted previously, however, dependents in H-4 
status are subject to the same period of authorized stay as the 
principal H-1B nonimmigrant worker. Therefore, eligible H-4 spouses and 
dependent children may be granted H-4 status during the period the H-1B 
nonimmigrant spouse or parent maintains H-1B status under section 106.
    Finally, DHS proposes to restrict extensions of H-1B status under 
sections 106(a) and (b) for beneficiaries who have not taken certain 
steps in furtherance of obtaining LPR status. As noted above, these 
sections were intended to allow individuals to remain in the United 
States as H-1B nonimmigrant workers while pursuing permanent residence. 
See S. Rep. No. 260, at 23. Accordingly, the proposed rule would 
generally require that to remain eligible for extensions of H-1B status 
under sections 106(a) and (b), the individual must file an application 
for adjustment of status or submit an application for an immigrant visa 
within 1 year of an immigrant visa becoming immediately available. See 
proposed 8 CFR 214.2(h)(13)(iii)(D)(10). This requirement would be 
effectively tolled, however, during any period in which an application 
for adjustment of status could not be filed due to the unavailability 
of immigrant visas. Id. Moreover, if the accrual of the 1-year period 
is interrupted by the retrogression of previously available immigrant 
visas, the individual would be permitted a full new 1-year period to 
seek LPR status when immigrant visas become available again. Id. In 
addition, failure to file within such year could be excused at the 
discretion of DHS if the individual establishes that the failure to 
apply was due to circumstances beyond his or her control. Id.
    DHS invites the public to comment on all aspects of this proposal.
2. Job Portability Under AC21 for Certain Applicants for Adjustment of 
Status
    DHS is proposing to clarify and improve policies and procedures 
related to the job portability protections provided by section 106(c) 
of AC21. See proposed 8 CFR 245.25. That section amended the INA by 
adding section 204(j), codified at 8 U.S.C. 1154(j), to enhance the 
ability of certain workers to change jobs or employers if they have 
been sponsored for permanent residence by U.S. employers and have 
pending applications for adjustment of status. See AC21 section 106(c). 
Specifically, section 204(j) of the INA provides that an employment-
based immigrant visa petition filed for EB-1 (other than for ``aliens 
of extraordinary ability''), EB-2, or EB-3 classification will remain 
valid with respect to a new qualifying job offer when the worker 
changes jobs or employers if an application for adjustment of status 
has been filed and remains pending for 180 days or more. See INA 
section 204(j), 8 U.S.C. 1154(j); see also INA sections 204(a)(1)(F) 
and 212(a)(5)(A)(iv), 8 U.S.C. 1154(a)(1)(F) and 1182(a)(5)(A)(iv). 
Section 204(j) allows such portability when the new job offer is for a 
job which is in the same or a similar occupational classification as 
the job for which the original immigrant visa petition was filed. Id.
    To provide greater clarity to the regulated community and enhance 
consistency across agency determinations under section 204(j) of the 
INA, DHS proposes to update and conform its regulations governing 
adjustment of status consistent with longstanding agency policy. For 
purposes of approving an application for adjustment of status, the 
proposed rule would clarify that an immigrant visa petition for EB-1 
(other than for ``aliens of extraordinary ability''), EB-2, or EB-3 
classification filed under section 204(a)(1)(F) of the INA, 8 U.S.C. 
1154(a)(1)(F), remains valid if the petition is approved and either:
    (1) The employment offer from the petitioning employer is 
continuing and remains bona fide; or
    (2) pursuant to section 204(j), the beneficiary has a new offer of 
employment in the same or a similar occupational classification as the 
employment offer listed in the approved petition, the application for 
adjustment of status based on this petition has been pending for 180 
days or more, and the approval of the petition has not been revoked.
    See proposed 8 CFR 245.25(a). Under the second option, the new 
offer of employment may be from the petitioning employer, from a 
different U.S. employer, or based on self-employment. Id. Under either 
option, the individual and his or her U.S. employer must intend that 
the individual will be employed under the continuing or new employment 
offer (including self-employment), as

[[Page 81916]]

applicable, upon the individual's grant of LPR status. Id.
    Although the individual need not have been employed at any time by 
the employer that filed the immigrant visa petition--or, in a case 
involving section 204(j) portability, the employer presenting the new 
offer of employment--DHS will in all cases determine whether a relevant 
offer of employment is bona fide. In cases involving 204(j) 
portability, DHS considers whether the employer that filed the 
immigrant visa petition had the intent, at the time the petition was 
approved, to employ the beneficiary upon approval of the application 
for adjustment of status.\42\ With respect to the new employer, DHS 
considers whether the employer intends to employ the beneficiary in the 
offered position, and whether the beneficiary intends to work in that 
position, upon approval of the application for adjustment of 
status.\43\
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    \42\ See USCIS Adjudicator's Field Manual, Chapter 20.2(c).
    \43\ See Aytes Memo Dec. 2005, at 4; Matter of Cardoso, 13 I. & 
N. Dec. 228, 230-31 (BIA 1969).
---------------------------------------------------------------------------

    As noted above, DHS is proposing to amend its regulations governing 
applications for adjustment of status to prohibit approval of such an 
application when the approval of the immigrant visa petition on which 
the application is based has been revoked. See proposed 8 CFR 
245.25(a). DHS is also proposing, however, as discussed in section 
IV.B., to amend its regulations governing revocation of petition 
approval so that employment-based immigrant visa petitions that have 
been approved for 180 days or more would no longer have such approval 
automatically revoked based only on withdrawal by the petitioner or 
termination of the petitioner's business. See proposed 8 CFR 
205.1(a)(3)(iii)(C) and (D). As long as such an approval has not been 
revoked for fraud, material misrepresentation, the invalidation or 
revocation of a labor certification, or USCIS error, the petition would 
generally continue to be valid for purposes of section 204(j) job 
portability and certain status extension purposes under the immigration 
laws. Id. Such a petition, however, cannot on its own serve as the 
basis for obtaining an immigrant visa or adjustment of status as there 
is no longer a bona fide employment offer related to the petition. Id. 
In such cases, the beneficiary will need a new immigrant visa petition 
approved on his or her behalf, or a new offer of employment in section 
204(j) portability cases, in order to obtain an immigrant visa or 
adjust status. Id.
    Taken together, these regulatory changes are generally consistent 
with current policy concerning adjustment of status. The regulatory 
amendments, for example, do not change existing policy with respect to 
applications for adjustment of status filed by beneficiaries of 
immigrant visa petitions who seek to adjust status based on a 
continuing offer of employment from the petitioning employer. In such 
cases, if the petitioning employer withdraws or goes out of business, 
there would be no continuing offer of employment on which the 
beneficiary may rely. Thus, even in a case where such a petition has 
been approved for at least 180 days and would no longer be subject to 
automatic revocation based upon withdrawal of the petition or 
termination of the employer's business, the beneficiary would remain 
ineligible to file for adjustment of status based solely on that 
petition. See proposed 8 CFR 204.5(a)(3)(iii)(C) and (D); see also 
proposed 8 CFR 245.25(a). Under this proposed rule, the beneficiary 
would require a new immigrant visa petition filed on his or her behalf 
in order to file for or receive adjustment of status. Id.
    With respect to beneficiaries who have applications for adjustment 
of status that have been pending for at least 180 days and seek to 
adjust status pursuant to section 204(j), the proposed regulations are 
also consistent with current policy, except in one respect. Under 
current policy, withdrawal by the petitioner in such cases does not 
require the beneficiary to be named in a new immigrant visa petition; 
rather, the beneficiary would only be required to demonstrate, pursuant 
to section 204(j) of the INA, that he or she has a new offer of 
employment in a same or similar occupational classification.\44\ This 
would continue to be the case under this proposed rule. See proposed 8 
CFR 204.5(a)(3)(iii)(C); see also proposed 8 CFR 245.25(a). The 
proposed rule would, however, expand such treatment to cover cases in 
which the petitioner's business terminates after the application for 
adjustment of status has been pending for at least 180 days. Under 
current policy, termination of the employer's business in such cases 
would require the beneficiary to be named in a new employment-based 
immigrant visa petition in order to adjust status. Under the proposed 
rule, the beneficiary would not be required to have a new immigrant 
visa petition filed on his or her behalf, and instead would be required 
to demonstrate that he or she has a new offer of employment in a same 
or similar occupational classification, consistent with section 204(j) 
of the INA. Id. DHS believes that such an extension of section 204(j) 
portability is consistent with congressional intent to allow long-
delayed applicants for adjustment of status to change employers with 
reasonable assurance that they will not be disadvantaged by so 
doing.\45\
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    \44\ See Aytes Memo Dec. 2005, at 4-5.
    \45\ DHS also proposes conforming changes to 8 CFR 204.5 to 
ensure the retention of priority dates related to certain 
employment-based immigrant visa petitions that are approved for less 
than 180 days when a petitioner withdraws the petition or the 
petitioner goes out of business. In such cases, the priority date 
listed in the petition may still be used for section 204(j) 
portability purposes. This regulatory amendment codifies current 
agency policy and practice. See proposed 8 CFR 204.5(e)(5).
---------------------------------------------------------------------------

    DHS is further proposing a new supplementary form to the 
application for adjustment of status to assist the Department in the 
adjudicative process. In general cases, the supplementary form will 
assist DHS in confirming that a job offer described in an employment-
based immigrant visa petition is still available at the time an 
individual files an application for adjustment of status. In cases 
involving section 204(j) portability requests, the form will assist DHS 
in determining, among other things, whether a new offer of employment 
is in the same or a similar occupational classification as the job 
offer listed in the immigrant visa petition. In section 204(j) cases, 
an individual may submit the supplement affirmatively or when required 
at the request of USCIS to establish eligibility under the proposed 
regulatory requirements. Currently, DHS is not proposing an extra fee 
for submission of this new supplement, but may consider implementing a 
fee in the future.
    DHS contemplates that applicants for adjustment of status seeking 
approval based on a new offer of employment will submit various pieces 
of evidence, along with the supplementary form, demonstrating 
compliance with section 204(j) and the proposed regulations. Unless 
instructed otherwise, including by the form or form instructions, an 
applicant will be able to submit: (1) A written attestation signed by 
the applicant and employer describing the new employment offer, 
including a description of the position and its requirements; (2) an 
explanation demonstrating that the new employment offer is in the same 
or a similar occupational classification as the original employment 
offer listed in the approved petition; and (3) a copy of the Notice of 
Action (Form I-797C) issued by USCIS (or, if unavailable, secondary 
evidence) showing that the individual's application for adjustment of 
status has

[[Page 81917]]

been pending with USCIS for 180 days or more. See proposed 8 CFR 
245.25(b)(2).
    Because the statute does not define the terms ``same'' or 
``similar,'' DHS proposes definitions for those terms based on their 
common dictionary definitions, as well as the agency's practice and 
experience in this context.\46\ The proposed regulatory provision 
accordingly defines ``same occupational classification'' as an 
occupation that resembles in every relevant respect \47\ the occupation 
for which the underlying employment-based immigrant visa petition was 
approved.\48\ See proposed 8 CFR 245.25(c). The term ``similar 
occupational classification'' is defined as an occupation that shares 
essential qualities or has a marked resemblance or likeness with the 
occupation for which the underlying employment-based immigrant visa 
petition was approved.\49\ Id.
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    \46\ See Taniguchi v. Kan Pacific Saipan, Ltd., 132 S. Ct. 1997, 
2002-03 (2012) (when a term goes undefined in a statute, an agency 
ordinarily should ``give the term its ordinary meaning'').
    \47\ For these purposes, USCIS adjudicators may consider, among 
other factors, the job duties of the respective jobs, and the 
skills, experience, education, training, licenses or certifications 
specifically required to perform each of the jobs.
    \48\ See, e.g., Same Definition, Merriam-Webster.com, http://www.merriam-webster.com/dictionary/same (last visited May 20, 2015) 
(defining ``same'' as ``identical'' or ``resembling in every 
relevant respect''); Same Definition, OED.com, http://www.oed.com/view/Entry/170362?redirectedFrom=same#eid (last visited Jan. 2, 
2015) (defining ``same'' as ``identical'').
    \49\ See, e.g., Similar Definition, Merriam-Webster.com, http://www.merriam-webster.com/dictionary/similar (last visited May 20, 
2015) (defining ``similar'' as ``alike in substance or 
essentials''); Similar Definition, Oed.com, http://www.oed.com/view/Entry/179873?redirectedFrom=similar#eid (last visited May 20, 2015) 
(defining ``similar'' as ``having a marked resemblance or 
likeness'').
---------------------------------------------------------------------------

    DHS invites the public to comment on all aspects of this proposal, 
including the new proposed supplementary form to the application for 
adjustment of status (and form instructions) and the possibility of 
charging a supplemental fee in the future related to such form.
3. Job Portability for H-1B Nonimmigrant Workers
    DHS proposes to conform its regulations to its policies and 
practices under section 105(a) of AC21, which amended the INA by adding 
the H-1B job portability provision at section 214(n), 8 U.S.C. 1184(n). 
This section enhances the ability of H-1B nonimmigrant workers to 
change jobs or employers by authorizing them to accept new or 
concurrent employment upon the filing of a non-frivolous H-1B petition 
(``H-1B portability petition''). See INA section 214(n), 8 U.S.C. 
1184(n). The H-1B nonimmigrant worker must have been lawfully admitted 
into the United States, must not have worked without authorization 
subsequent to such lawful admission, and must be in a period of stay 
authorized by the Secretary of Homeland Security.\50\ Employment 
authorization under the pending H-1B portability petition continues 
until its adjudication. Id.
---------------------------------------------------------------------------

    \50\ Neufeld Memo May 2009 (describing various ``periods of 
authorized stay'').
---------------------------------------------------------------------------

    In harmony with the statutory provision, the proposed rule would 
provide that H-1B nonimmigrant workers who are beneficiaries of new H-
1B petitions seeking an amendment or extension of their stay in H-1B 
status are eligible to commence new or concurrent employment upon the 
filing of a non-frivolous H-1B petition by that employer. See proposed 
8 CFR 214.2(h)(2)(i)(H). If the H-1B nonimmigrant worker meets the 
requirements of section 214(n), he or she is authorized to commence new 
employment while adjudication of the new H-1B petition is pending. Id. 
If the petition is approved, the H-1B nonimmigrant worker's employment 
authorization continues under the approved petition. Id. If the 
petition is denied, employment authorization under section 214(n) 
generally ceases upon the date of denial.\51\ Id.
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    \51\ If the petition is denied after the H-1B nonimmigrant 
worker's Arrival-Departure Record (Form I-94) or successor form) has 
expired, and while the H-1B nonimmigrant worker is in an authorized 
period of stay consistent with 8 CFR 274a.12(b)(20) and proposed 
revisions to 8 CFR 274a.12(b)(9), DHS intends to interpret section 
214(g)(4) of the INA, 8 U.S.C. 1184(g)(4), to count the time spent 
in the United States based on a timely filed H-1B extension of stay 
petition towards the 6 year H-1B period of authorized admission.
---------------------------------------------------------------------------

    DHS proposes, consistent with current policy, to make the H-1B 
portability provision discussed in this section available only to H-1B 
beneficiaries who are in the United States in H-1B status.\52\ This 
interpretation is consistent with the language of section 214(n), which 
requires in part that the H-1B nonimmigrant worker have been lawfully 
admitted into the United States at the time the new H-1B petition is 
filed. See INA section 214(n), 8 U.S.C. 1184(n). This interpretation is 
also in harmony with congressional intent behind the creation of the 
provision. As noted in the Senate Report accompanying the bill, the H-
1B portability provision was intended to ``respond[ ] to concerns 
raised about the potential for exploitation of H-1B visa holders as a 
result of a specific employer's control over the employee's legal 
status.'' See S. Rep. No. 260, at 22-23.
---------------------------------------------------------------------------

    \52\ Aytes Memo Dec. 2005, at 7.
---------------------------------------------------------------------------

    DHS also proposes to conform its regulations to current policy 
regarding the ability of H-1B employers to file successive H-1B 
portability petitions (often referred to as ``bridge petitions'') on 
behalf of H-1B nonimmigrant workers. Under current policy, an H-1B 
nonimmigrant worker who has changed employment based on an H-1B 
portability petition filed on his or her behalf may again change 
employment based on the filing of a new H-1B portability petition, even 
if the former H-1B portability petition remains pending.\53\ Approval 
of any subsequent H-1B portability petition, however, would effectively 
be dependent on the approval of any prior H-1B portability petition if 
the individual's Arrival-Departure Record (Form I-94) has expired and 
the prior portability petitions remain pending at the time that the 
subsequent portability petition is filed. In such a case, where the 
request for an extension of stay was denied in a preceding H-1B 
portability petition, a request for an extension of stay in any 
successive H-1B portability petition(s) must also be denied. See 
proposed 8 CFR 214.2(h)(2)(i)(H)(3). DHS proposes to maintain this 
policy in order to best achieve the ameliorative purpose of section 
212(n) to enhance the job flexibility of H-1B nonimmigrant workers and 
minimize their potential exploitation by employers.
---------------------------------------------------------------------------

    \53\ Aytes Memo Dec. 2005, at 7.
---------------------------------------------------------------------------

    DHS is also proposing conforming changes to its employment 
authorization regulations to recognize the employment authorization of 
H-1B nonimmigrant workers who are employed pursuant to an H-1B 
portability petition filed under section 214(n) of the INA. See 
proposed 8 CFR 274a.12(b)(9). Specifically, the proposed rule would add 
this class of H-1B nonimmigrant workers to the description of H 
nonimmigrants authorized for employment incident to status with a 
specific employer. Id.
    DHS invites the public to comment on all aspects of this proposal.
4. Calculating the H-1B Admission Period
    DHS proposes to clarify in regulation its current policy with 
respect to calculating and ``recapturing'' what is known as ``remainder 
time'' for H-1B nonimmigrant workers. See proposed 8 CFR 
214.2(h)(13)(iii)(C). Currently, with respect to an H-1B nonimmigrant 
worker's maximum period of authorized admission in H-1B status, DHS 
does not count against this period any days he or

[[Page 81918]]

she spent outside of the United States during the validity period of 
the H-1B petition.\54\ Any such period outside the United States may 
still be used, or ``recaptured,'' by an H-1B petitioner on behalf of 
the H-1B nonimmigrant worker.\55\ An H-1B petitioner seeking to 
recapture such time must establish, through objective, documentary 
evidence--such as passport stamps, Arrival-Departure Records (Forms I-
94), or airline ticket stubs--that the H-1B nonimmigrant worker was in 
fact physically outside of the United States during the day(s) for 
which recapture is sought.\56\
---------------------------------------------------------------------------

    \54\ See Aytes Memo Oct. 2005.
    \55\ Id.
    \56\ To assist in the adjudication process, a petitioner may 
also provide complementary evidence explaining any such time to be 
recaptured, such as a chart indicating the dates spent outside of 
the United States and referencing the relevant objective documentary 
evidence supporting the chart.
---------------------------------------------------------------------------

    DHS proposes to codify this policy through this rulemaking. Under 
this proposed rule, time spent outside the United States by an 
individual during the validity of an H-1B petition that was approved on 
his or her behalf could be added back to or ``recaptured'' for his or 
her maximum period of authorized admission as an H-1B nonimmigrant 
worker. See proposed 8 CFR 214.2(h)(13)(iii)(C); see also INA section 
214(g)(4), 8 U.S.C. 1184(g)(4) (generally establishing a 6-year limit 
on the period of stay of an H-1B nonimmigrant worker). Consistent with 
current practice, if an H-1B nonimmigrant worker had counted against 
the H-1B numerical cap with respect to the 6-year maximum period of H-
1B admission from which recapture is sought, then the H-1B petition 
seeking recapture of such time (``H-1B recapture petition'') would not 
subject the H-1B nonimmigrant worker again to the cap.\57\ See proposed 
8 CFR 214.2(h)(13)(iii)(C)(2). If the H-1B nonimmigrant worker had not 
counted against the H-1B cap in such a case, the recapture petition 
would be cap-subject (i.e., require that the H-1B nonimmigrant worker 
count against the cap), unless the H-1B nonimmigrant worker is eligible 
for another exemption from the cap.
---------------------------------------------------------------------------

    \57\ This analysis would also be applied to cases in which the 
worker has been outside the United States for a full year and would 
thus be eligible for a new period of admission under section 
214(g)(4) of the INA, 8 U.S.C. 1184(g)(4). In such cases, the H-1B 
petitioner may file a recapture petition or a petition seeking a new 
period of H-1B admission. If the petitioner does not include a 
recapture request in the H-1B petition, DHS generally would treat 
the petition as a request for a new 6-year maximum H-1B admission 
period under section 214(g)(4) of the INA, 8 U.S.C. 1184(g)(4). The 
worker in such a case would be subject to the numerical cap unless 
an exemption applies.
---------------------------------------------------------------------------

    In accordance with current policy, the H-1B petitioner would bear 
the burden of demonstrating ``recapture'' eligibility. Along with 
documentary evidence, the petitioner may provide complementary, 
explanatory evidence (as described above) to assist USCIS adjudicators 
in the adjudication process. See proposed 8 CFR 
214.2(h)(13)(iii)(C)(1). Moreover, as with current practice, an H-1B 
petitioner filing a recapture petition would not need to demonstrate 
that the time spent outside the United States by the H-1B nonimmigrant 
worker was meaningfully interruptive of the H-1B period in which 
recapture is sought. The reason for the absence is irrelevant to the 
recapture determination, but such reason may be relevant to the 
determination of the individual's admissibility. Any trip of at least 
one continuous 24-hour period (``day'') outside the United States for 
any purpose may be recaptured.
    DHS invites public comment on all aspects of this proposal.
5. Exemptions from the H-1B Numerical Cap Under AC21 and ACWIA
a. Employers Not Subject to H-1B Numerical Limitations
    DHS proposes to clarify and improve its regulations and policies 
identifying which employers are cap-exempt under the H-1B program. As 
discussed above in section III.C.2.b.i., AC21 amended section 214(g)(5) 
of the INA to allow certain employers to employ H-1B nonimmigrant 
workers without application of the numerical cap on H-1B visas. See 
AC21 section 103 (adding paragraphs (5), (6), and (7) to INA section 
214(g), 8 U.S.C. 1184(g)). As amended by AC21, section 214(g)(5) of the 
INA specifically exempts from the H-1B cap those H-1B nonimmigrant 
workers who are employed (1) ``at an institution of higher education . 
. . , or a related or affiliated nonprofit entity,'' or (2) ``at a 
nonprofit research organization or a governmental research 
organization.'' INA section 214(g)(5), 8 U.S.C. 1184(g)(5). DHS is now 
proposing to codify its long-standing policy interpretations regarding 
this exemption from the cap. See proposed 8 CFR 214.2(h)(8)(ii)(F).
    DHS has interpreted this provision to exempt H-1B nonimmigrant 
workers in two types of circumstances. First, H-1B nonimmigrant workers 
are currently exempt from the cap if they are employed directly by an 
employer described in section 214(g)(5) of the INA, 8 U.S.C. 
1184(g)(5). Thus, any H-1B nonimmigrant worker would be exempt if 
employed directly by: (1) An institution of higher education, (2) a 
nonprofit entity related to or affiliated with such an institution, (3) 
a nonprofit research organization, or (4) a governmental research 
organization. See proposed 8 CFR 214.2(h)(8)(ii)(F)(1)-(3). Second, 
because section 214(g)(5) exempts workers who are employed ``at'' such 
qualifying institutions, organizations, or entities, H-1B nonimmigrant 
workers may also be exempt from the cap in certain circumstances even 
when they are not directly employed by them.\58\ See proposed 8 CFR 
214.2(h)(8)(ii)(F)(4). Under current policy, such H-1B nonimmigrant 
workers may only be treated as cap exempt when: (1) The employment is 
located at a qualifying institution, organization, or entity; and (2) 
the H-1B nonimmigrant worker will perform job duties that directly and 
predominately further the normal, primary, or essential purpose, 
mission, objectives or function of the qualifying institution, 
organization, or entity.\59\
---------------------------------------------------------------------------

    \58\ In contrast to the ``employed at'' terminology used in 
section 214(g)(5) of the INA, 8 U.S.C. 1184(g)(5), other provisions 
governing the H-1B program use terminology limited to a direct 
employer-employee relationship with a qualifying employer. Section 
212(p)(1) of the INA, 8 U.S.C. 1182(p)(1), for example, provides for 
special prevailing wage computations where an H-1B nonimmigrant is 
to be an ``employee of'' a qualifying institution, organization, or 
entity. Similarly, section 214(c)(9)(A) of the INA, 8 U.S.C. 
1184(c)(9)(A), exempts only qualifying employers from certain H-1B 
petition fees enacted under ACWIA. Unlike section 214(g)(5), these 
provisions clearly apply only when the H-1B petitioner is itself a 
qualifying employer.
    \59\ Aytes Memo June 2006, at 2-3 and note 2.
---------------------------------------------------------------------------

    DHS is now proposing to amend its regulations, in part, to provide 
additional clarity with respect to the ``employed at'' statutory 
language. See proposed 8 CFR 214.2(h)(8)(ii)(F)(4). Under the proposed 
rule, an H-1B petitioner that is not itself a qualifying institution, 
organization or entity may claim an exemption from the cap for an H-1B 
nonimmigrant worker employed at such organization or entity if: (1) The 
majority of the worker's duties will be performed at a qualifying 
institution, organization, or entity; and (2) such job duties directly 
and predominately further the essential purpose, mission, objectives or 
functions of the qualifying institution, organization or entity (e.g., 
higher education, or nonprofit or governmental research). Id. In such 
cases, the burden is on the petitioner to establish by a preponderance 
of the evidence that there is a nexus between the work performed by the 
H-1B nonimmigrant worker and the essential purpose, mission, objectives 
or

[[Page 81919]]

functions of the qualifying institution, organization, or entity.
    DHS also proposes to conform its regulations to current policy with 
respect to the definitions of several terms in section 214(g)(5) and 
the applicability of these terms to both: (1) ACWIA provisions that 
require the payment of fees by certain H-1B employers; and (2) AC21 
provisions that exempt certain employers from the H-1B numerical caps. 
First, the proposed rule would expressly adopt for the purpose of cap 
exemption the definition of the term ``institution of higher 
education'' provided by section 101(a) of the Higher Education Act.\60\ 
See proposed 8 CFR 214.2(h)(8)(ii)(F)(1). Notably, this definition does 
not include for-profit institutions of higher education, which would 
continue to be subject to the H-1B cap. The proposed rule would also 
adopt definitions for the terms ``nonprofit research organization'' and 
``governmental research organization'' as currently set forth in DHS 
regulations at 8 CFR 214.2(h)(19)(iii). See proposed 8 CFR 
214.2(h)(8)(ii)(F)(3). The proposed rule additionally clarifies that an 
entity would be considered a ``nonprofit entity'' for purpose of 
proposed 8 CFR 214.2(h)(8)(ii)(F) if it meets the definition of that 
term at 8 CFR 214.2(h)(19)(iv).
---------------------------------------------------------------------------

    \60\ See id, note 1.
---------------------------------------------------------------------------

    Furthermore, consistent with current DHS regulations, see 8 CFR 
214.2(h)(19)(iii)(B), the term ``related or affiliated nonprofit 
entity'' would be defined, both for ACWIA fee and cap exemption 
purposes, to continue to include nonprofit entities that are: (1) 
Connected or associated with an institution of higher education through 
shared ownership or control by the same board or federation; (2) 
operated by an institution of higher education; or (3) attached to an 
institution of higher education as a member, branch, cooperative, or 
subsidiary. See proposed 8 CFR 214.2(h)(8)(ii)(F)(2). DHS intends to 
improve upon current policy, however, by proposing additional means by 
which nonprofit entities may establish a sufficient relation or 
affiliation with an institution of higher education. This change would 
better reflect current operational realities for institutions of higher 
education and how they interact with, and sometimes rely on, nonprofit 
entities. See proposed 8 CFR 214.2(h)(8)(ii)(F)(2)(iv) and 
(h)(19)(iii)(B).
    In particular, based on its experience in this area, DHS believes 
that the current definition for ``affiliated or related nonprofit 
entities'' does not sufficiently account for the nature and scope of 
common, bona fide affiliations between nonprofit entities and 
institutions of higher education. To better account for such 
relationships, DHS proposes to expand on the current definition by 
including nonprofit entities that have entered into formal written 
affiliation agreements with institutions of higher education and are 
able to meet two additional criteria. First, such entities must 
establish an active working relationship with the institution of higher 
education for the purposes of research or education. Second, they must 
establish that one of their primary purposes is to directly contribute 
to the research or education mission of the institution of higher 
education. See proposed 8 CFR 214.2(h)(8)(ii)(F)(2)(iv) and 
(h)(19)(iii)(B)(4).
    This proposed definition provides much needed flexibility in this 
area, allowing DHS to better account for the full range of nonprofit 
entities that are ``related or affiliated'' with institutions of higher 
education and thus better ensure that such entities are not subject to 
the H-1B cap or the ACWIA fee as Congress intended. For example, under 
federal statute, Veterans Affairs (VA) hospitals are considered 
affiliated with a medical school or institution of higher learning 
based on ``a contract or agreement . . . for the training or education 
of health personnel.'' 38 U.S.C. 7423(d)(1). But such agreements may be 
inadequate under the current regulatory definition to establish the 
requisite affiliation or relation for purposes of the H-1B cap or ACWIA 
fee exemptions. Such bona fide affiliation contracts or agreements are 
common in the private sector as well. DHS believes the proposed 
definition better captures these and other valid types of relationships 
with institutions of higher education that are contemplated under AC21 
and ACWIA.
    DHS welcomes public comment on all aspects of this proposal.
b. Counting Previously Exempt H-1B Nonimmigrant Workers
    DHS also proposes to conform its regulations to existing policy for 
determining when a change in employment requires a previously exempt H-
1B nonimmigrant worker to be counted against the H-1B cap. See proposed 
8 CFR 214.2(h)(8)(ii)(F)(5). As discussed above, an H-1B nonimmigrant 
worker is exempt from the H-1B cap if he or she is employed at an 
institution of higher education, a nonprofit entity related or 
affiliated to such an institution, a nonprofit research organization, 
or a governmental research organization.\61\ See INA section 214(g)(5), 
8 U.S.C. 1184(g)(5). Under section 214(g)(6) of the INA, 8 U.S.C. 
1184(g)(6), once cap-exempt employment ceases, the H-1B nonimmigrant 
worker will be subject to the cap if he or she was not previously 
counted against it and exemptions from the cap no longer apply. Section 
214(g)(6) expressly refers to cap-exempt H-1B nonimmigrant workers who 
cease to be employed by employers described under subparagraph (A) of 
section 214(g)(5), 8 U.S.C. 1184(g)(5)(A), which lists only 
institutions of higher education and related or affiliated nonprofit 
entities. DHS, however, has long maintained the same policy with regard 
to cessation of employment with employers described under subparagraph 
(B) of section 214(g)(5), 8 U.S.C. 1184(g)(5)(B), which lists nonprofit 
research organizations and governmental research organizations.\62\ DHS 
now proposes to incorporate this interpretation into its H-1B 
regulations. See proposed 8 CFR 214.2(h)(8)(ii)(F)(5). DHS believes 
this reading is a reasonable interpretation and best implements the 
congressional intent behind the H-1B cap exemption provisions, which 
expressly exempt workers employed at those entities described in 
sections 214(g)(5)(A) and (B). It reasonably follows that termination 
of such employment should result in the cessation of the cap-exemption.
---------------------------------------------------------------------------

    \61\ Such cap-exempt H-1B nonimmigrant workers may also 
undertake concurrent, non-exempt H-1B employment without being 
subjected to the cap. See INA section 214(g)(5), 8 U.S.C. 
1184(g)(5).
    \62\ Neufeld Memo May 2008, at 7-8.
---------------------------------------------------------------------------

    Consistent with this interpretation, the proposed rule would 
require a reassessment of an H-1B nonimmigrant worker's cap-exempt 
status when he or she ceases employment at an institution of higher 
education, a nonprofit entity related to or affiliated with such an 
institution, a nonprofit research organization, or a governmental 
research organization. See proposed 8 CFR 214.2(h)(8)(ii)(F)(5) and 
(6). If such an H-1B nonimmigrant worker was not previously counted 
against the H-1B numerical cap within the 6-year period of authorized 
admission to which the cap-exempt employment applied, he or she would 
now be subject to the cap if no other exemptions from the cap apply. 
Id. Accordingly, USCIS will deny any subsequent cap-subject H-1B 
petition \63\ filed for the H-1B nonimmigrant worker if no cap numbers 
are available, and

[[Page 81920]]

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

    \63\ The subsequent petition may be, for example, a cap-subject 
petition by a new employer or a petition by the same cap-subject 
employer for an extension of the beneficiary's stay.
---------------------------------------------------------------------------

    DHS welcomes public comment on this proposal.
6. Whistleblower Protections in the H-1B Program
    DHS proposes to conform its regulations governing the H-1B program 
to certain policies and practices that have developed since ACWIA 
amended the INA to provide additional protections to H-1B nonimmigrant 
workers and other workers. See proposed 8 CFR 214.2(h)(20). As noted 
previously, section 413 of ACWIA amended the INA by adding new section 
212(n)(2)(C), which is codified at 8 U.S.C. 1182(n)(2)(C). Among other 
things, section 212(n)(2)(C) makes it a violation for an H-1B employer 
to retaliate against an employee for providing information to the 
employer or any other person, or for cooperating in an investigation, 
with respect to an employer's violation of its LCA attestations. See 
INA section 212(n)(2)(C)(iv), 8 U.S.C. 1182(n)(2)(C)(iv). Employers are 
prohibited from taking retaliatory action against such an employee, 
including any action to intimidate, threaten, restrain, coerce, 
blacklist, discharge, or in any other manner discriminate against an 
employee for disclosing information to the employer, or to any other 
person, that the employee reasonably believes evidences an LCA 
violation, any rule or regulation pertaining to the statutory LCA 
attestation requirements, or for cooperating, or attempting to 
cooperate, in an investigation or proceeding pertaining to the 
employer's LCA compliance. Id.
    Section 212(n)(2)(C) also requires DHS to establish a process under 
which an H-1B nonimmigrant worker who files a complaint with DOL 
regarding such illegal retaliation, and is otherwise eligible to remain 
and work in the United States, ``may be allowed to seek other 
appropriate employment in the United States for a period not to exceed 
the maximum period of stay authorized for such nonimmigrant 
classification.'' INA section 212(n)(2)(C)(v), 8 U.S.C. 
1182(n)(2)(C)(v). Under current policy, if credible documentary 
evidence is provided in support of an H-1B petition demonstrating that 
the H-1B nonimmigrant worker faced retaliatory action from his or her 
employer based on a report regarding a violation of the employer's LCA 
obligations, DHS may consider any related loss of H-1B status by the 
worker as an ``extraordinary circumstance'' under 8 CFR 214.1(c)(4) and 
248.1(b) justifying an extension of H-1B status or change of status for 
the worker.\64\ Accordingly, the H-1B nonimmigrant worker is afforded 
time to acquire new H-1B employment or employment under another 
nonimmigrant classification notwithstanding a termination of employment 
or other retaliatory action by his or her employer. Credible 
documentary evidence may include a copy of the complaint filed by the 
individual, along with corroborative documentation that such a 
complaint has resulted in retaliatory action against the individual as 
described in 20 CFR 655.801.\65\
---------------------------------------------------------------------------

    \64\ See Neufeld Memo May 2008, at 8.
    \65\ Id.
---------------------------------------------------------------------------

    The proposed rule would codify in regulation DHS' current policy 
regarding these protections. See proposed 8 CFR 214.2(h)(20). Under the 
proposed rule, a qualifying employer seeking an extension of stay for 
an H-1B nonimmigrant worker, or a change of status from H-1B status to 
another nonimmigrant classification, would be able to submit 
documentary evidence indicating that the beneficiary faced retaliatory 
action from his or her employer (or former employer) based on a report 
regarding a violation of the employer's LCA obligations. Id. If DHS 
determines such documentary evidence to be credible, DHS may consider 
any loss or failure to maintain H-1B status by the beneficiary related 
to such violation as an ``extraordinary circumstance'' under 8 CFR 
214.1(c)(4) and 248.1(b). Those regulations, in turn, authorize DHS to 
grant a discretionary extension of H-1B stay or a change of status to 
another nonimmigrant classification. See 8 CFR 214.1(c)(4) and 
248.1(b). As with current policy, credible documentary evidence should 
include a copy of the complaint filed by the individual, along with 
corroborative documentation that such a complaint has resulted in the 
retaliatory action against the individual as described in 20 CFR 
655.801. All evidence submitted will be considered to determine whether 
``extraordinary circumstances'' have been met.
    DHS invites the public to comment on all aspects of this proposal.

B. Additional Changes To Further Improve Stability and Job Flexibility 
for Certain Workers

    DHS further proposes to amend its regulations, consistent with AC21 
and DHS authorities, related to certain employment-based immigrant and 
nonimmigrant visa programs to provide additional stability and 
flexibility to employers and workers in those programs. The proposals 
are primarily intended to improve job portability for certain 
beneficiaries of approved employment-based immigrant visa petitions, 
including by limiting the grounds for automatic revocation of petition 
approval and increasing the ability of such workers to retain their 
priority dates for use with subsequently approved employment-based 
immigrant visa petitions.
    The proposed rule would also: Improve or establish grace periods 
for certain nonimmigrant workers so that they may more easily seek and 
accept new employment opportunities; further assist applicants for 
adjustment of status and certain other employment-eligible individuals 
by automatically extending EADs for an interim period upon the timely 
filing of a renewal application; and provide additional stability and 
flexibility to high-skilled workers in certain nonimmigrant statuses to 
apply for employment authorization for a limited period if they meet 
certain criteria, including demonstrating that they are beneficiaries 
of approved employment-based immigrant visa petitions, are subject to 
immigrant visa backlogs, and demonstrate compelling circumstances. 
These and other proposed changes would provide much needed flexibility 
to a limited group of beneficiaries of employment-based immigrant visa 
petitions, as well as the U.S. employers who employ and sponsor them 
for permanent residence.
1. Revocation of Approved Employment-Based Immigrant Visa Petitions
    As referenced above, DHS is proposing to amend its regulations 
governing revocation of petition approval to provide greater stability 
and flexibility to certain workers who have approved EB-1, EB-2, or EB-
3 immigrant visa petitions and are on the path to obtaining LPR status 
in the United States. The INA provides that any immigrant visa 
petition, once approved, may have such approval revoked by the 
Secretary of Homeland Security ``for what he deems to be good and 
sufficient cause.'' INA section 205, 8 U.S.C. 1155. Pursuant to this 
statutory authority, current DHS regulations provide grounds for 
automatic revocation and revocation on notice to the petitioner. See 8 
CFR 205.1 and 205.2.\66\ With respect to employment-

[[Page 81921]]

based immigrant visa petitions, the current regulatory grounds for 
automatic revocation include: (1) Invalidation of the labor 
certification supporting the petition; (2) death of the petitioner or 
beneficiary; (3) withdrawal by the petitioning employer; and (4) 
termination of the petitioning employer's business. See 8 CFR 205.1. 
The regulatory provisions governing revocation on notice to the 
petitioner allow for revocation to be pursued on any other ground 
``when the necessity for the revocation comes to the attention of 
[DHS].'' 8 CFR 205.2(a). Such revocation may be used, for example, for 
petitions involving fraud, material misrepresentation, or erroneous 
approval.\67\
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    \66\ The Department of Justice (DOJ) Executive Office for 
Immigration Review (EOIR) has corresponding revocation regulations. 
See 8 CFR part 1205. DHS and DOJ, however, are not proposing to 
amend those regulations. The EOIR regulations do not permit EOIR to 
revoke under section 205 of the INA, 8 U.S.C. 1155, employment-based 
immigrant visa petitions approved under section 204 of the INA, 8 
U.S.C. 1154. Subsequent to enactment of the Homeland Security Act, 
DOJ promulgated regulations transferring or duplicating certain 
parts of regulations codified in 8 CFR chapter I, including the 
automatic revocation regulations, to a new chapter pertaining to 
EOIR at 8 CFR chapter V. See Aliens and Nationality; Homeland 
Security; Reorganization of Regulations, 68 FR 9824 (Feb. 28, 2003). 
Thereafter, on December 17, 2004, Congress vested authority for 
revocations under section 205 of the INA solely in the Secretary of 
Homeland Security, rather than the Attorney General. See 
Intelligence Reform and Terrorism Prevention Act of 2004, Public Law 
108-458, sec. 5304(c), 118 Stat. 3638 (striking ``Attorney General'' 
and inserting ``Secretary of Homeland Security''). Moreover, EOIR's 
Board of Immigration Appeals has held that immigration judges are 
not authorized to revoke employment-based immigrant visa petitions 
approved under section 204 of the INA, and that the Board lacks 
jurisdiction to review DHS decisions to revoke such petitions. See, 
e.g., Matter of Marcal-Neto, 25 I&N Dec. 169, 174 (BIA 2010) 
(immigration judges lack authority to decide whether visa petitions 
should be revoked); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 
1987) (the Board lacks jurisdiction over matters involving the 
automatic revocation of a visa petition) (citing Matter of Zaidan, 
19 I&N Dec. 297 (BIA 1985)). Accordingly, EOIR regulations at 8 CFR 
part 1205 need not be revised to conform with the proposed revisions 
in this rule.
    \67\ See Adjudicator's Field Manual, Chapter 22: Employment-
Based Petitions, Entrepreneurs, and Special Immigrants Sec.  
22.2(d)(1) Employment-based Immigrant Visa Petitions (Form I-140); 
Determining the Priority Date, available at http://www.uscis.gov/iframe/ilink/docView/AFM/HTML/AFM/0-0-0-1.html.
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    The proposed rule would amend these regulations so that EB-1, EB-2, 
and EB-3 immigrant visa petitions that have been approved for 180 days 
or more would no longer have such approval automatically revoked based 
only on withdrawal by the petitioner or termination of the petitioner's 
business. See proposed 8 CFR 205.1(a)(3)(iii)(C) and (D). As long as 
such an approval has not been revoked for fraud, material 
misrepresentation, the invalidation or revocation of a labor 
certification, or USCIS error, the petition will generally continue to 
be valid for various purposes under the immigration laws. Id. Such 
purposes include: (1) The retention of priority dates; (2) job 
portability under section 204(j) of the INA, 8 U.S.C. 1154(j); and (3) 
extensions of status for certain H-1B nonimmigrant workers under 
sections 104(c) and 106(a) and (b) of AC21. Id. An employment-based 
immigrant visa petition that is subject to withdrawal or business 
termination, however, cannot on its own serve as the basis for 
obtaining an immigrant visa or applying for adjustment of status as 
there is no longer a bona fide employment offer related to the 
petition. See id. In such cases, the beneficiary will need a new 
immigrant visa petition filed on his or her behalf, or a new offer of 
employment in section 204(j) portability cases, in order to obtain an 
immigrant visa or adjust status. Id.
    DHS believes these regulatory changes are critical to fully 
implementing the job portability provisions of AC21. The current 
regulations concerning revocation of employment-based petition approval 
were last amended in 1996,\68\ when wait times for employment-based 
immigrant visas were relatively short and the immigration laws seemed 
to contemplate that sponsored employees would remain with their 
petitioning employers during the short time it took to obtain LPR 
status. The passage of time, and AC21, changed this landscape. In the 
intervening period, wait times for immigrant visas increased 
substantially, particularly for workers from India and China. See 
section III.D. And in recognition of these and other delays, Congress 
enacted AC21 in 2000 to provide additional flexibility to workers who 
were subject to lengthy delays in the immigrant visa process. Since 
AC21, wait times for immigrant visas have grown dramatically, so that 
for many workers the period between the approval of an employment-based 
immigrant visa petition \69\ and the worker's ability to obtain 
permanent residence is now counted in years, if not decades. Id. This 
has placed increased emphasis on and further necessitates the benefits 
Congress sought to provide through AC21.
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    \68\ See 61 FR 13061 (1996). In 2006, the Department of Homeland 
Security and the Department of Justice amended the revocation 
regulations pertaining to immediate relatives and family-sponsored 
beneficiaries. See 71 FR 35749.
    \69\ The period of time necessary for USCIS to approve an 
employment-based immigrant visa petition requiring a labor 
certification from DOL does not account for the time that is 
required for DOL adjudication of the labor certification 
application. A worker's priority date in such cases, which is 
established as of the date DOL accepts the labor certification 
application for processing, see 8 CFR 204.5(e), typically will be 
more than one year before the date of petition approval under 
current processing times.
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    Importantly, Congress enacted AC21 with the specific purpose of 
providing increased job flexibility to certain workers who are being 
sponsored for permanent residence by a particular employer, but who as 
a result of long delays are forced to wait inordinate periods of time 
for such permanent residence. Section 106(c) of AC21, for example, 
created section 204(j) of the INA to allow certain workers with 
approved immigrant visa petitions and pending applications for 
adjustment of status to change jobs or employers without invalidating 
their approved immigrant visa petitions. See Section III.A. This 
statutory change supports the regulatory change proposed in this 
section. In cases involving section 204(j) portability, allowing a 
withdrawal by the petitioning employer, or termination of its business, 
to automatically cause revocation of the immigrant visa petition's 
approval would substantially undermine the protections Congress 
intended to provide the beneficiaries of such petitions through section 
204(j).
    The same is true with respect to the various provisions of AC21 
that were intended to provide certainty and flexibility to H-1B 
nonimmigrant workers. AC21 provided various ways in which such workers 
could extend their H-1B status beyond the general 6-year limitation if 
they had been sponsored for permanent residence by an employer. See 
Section III.C. (discussing AC21 sections 104(c) and 106(a) and (b)). At 
the same time, AC21 enhanced the ability of H-1B nonimmigrant workers 
to change jobs or employers, including by authorizing such workers to 
immediately commence new employment upon the filing of a non-frivolous 
H-1B petition. Id. (discussing AC21 section 105(a)). These extension 
and portability provisions are far less meaningful if, after the H-1B 
nonimmigrant worker changes jobs, the approval of his or her qualifying 
immigrant visa petition can be automatically revoked solely due to 
withdrawal by the petitioning employer or termination of its business.
    Accordingly, this proposed rule would amend DHS regulations 
governing revocation with respect to employment-based immigrant visa 
petitions to better reflect and enhance the job portability eligibility 
authorized by AC21. As noted above, DHS proposes that an employment-
based immigrant visa petition that has been approved for 180 days or 
more would no longer have such approval automatically revoked based 
only on withdrawal by the

[[Page 81922]]

petitioner or termination of the petitioner's business. See proposed 8 
CFR 205.1(a)(3)(iii)(C) and (D). This change would effectively improve 
the ability of certain workers with approved EB-1, EB-2, or EB-3 
immigrant visa petitions to rely on such petitions for various job 
portability and status extension provisions in the immigration laws. 
Among other things, qualifying workers would be able to take advantage 
of these provisions without fear that certain circumstances outside of 
their control will automatically cause the revocation of the approval 
of their immigrant visa petitions, eliminate access to status extension 
and portability provisions intended to assist them, and potentially 
force them to leave their homes in the United States at a moment's 
notice.
    While enhancing these protections, the regulatory changes in this 
proposed rule would remain consistent with current policy concerning 
these workers' ability to obtain adjustment of status or an immigrant 
visa. The proposed rule, for example, would continue to require a valid 
and qualifying offer of employment (unless the requirement for such an 
offer is exempted by law) at the time a worker seeks to apply for or 
receive adjustment of status. As discussed in Section IV.B.1. of this 
proposed rule, beneficiaries of employment-based immigrant visa 
petitions who seek to adjust status based on continuing offers of 
employment from petitioning employers would be unaffected by this rule. 
If the petitioning employer of such a beneficiary withdraws or goes out 
of business, the beneficiary must have a new offer of employment and a 
new immigrant visa petition filed on his or her behalf in order to file 
for or obtain adjustment of status, consistent with current policy. See 
proposed 8 CFR 245.25(a)(2) and 205.1(a)(3)(iii)(C).
    The analysis is similar for beneficiaries of immigrant visa 
petitions who seek to adjust status based in part on the portability 
protection of section 204(j) of the INA. Where the petitioner withdraws 
or goes out of business 180 days or more after the adjustment of status 
application is filed, the beneficiary would continue to be required to 
demonstrate that he or she has a new and valid offer of employment in a 
same or similar occupational classification, consistent with section 
204(j). See proposed 8 CFR 245.25(b)(2) and 205.1(a)(3)(iii)(D). Thus, 
in all instances of petition withdrawal or business termination where 
an offer of employment is necessary, the beneficiary either will need a 
new immigrant visa petition filed on his or her behalf, or a new offer 
of employment consistent with section 204(j), in order to file for or 
obtain adjustment of status. Id.
    Accordingly, DHS believes that the proposed changes provide 
important stability and flexibility to workers who have been sponsored 
for permanent residence while also protecting against fraud and misuse. 
First, as just discussed, beneficiaries of approved employment-based 
immigrant visa petitions will continue to be unable to rely on such 
petitions for the purposes of adjusting status or obtaining an 
immigrant visa in cases where the petitioning employer has withdrawn or 
gone out of business, unless eligible for section 204(j) portability. 
Second, DHS is proposing to restrict revocation based on petitioner 
withdrawal or business termination only for petitions that have been 
approved for 180 days or more. See proposed 8 CFR 205.1(a)(3)(iii)(C) 
and (D). In addition to the period that it typically takes for a 
petitioning employer to obtain a labor certification from DOL and 
approval of an immigrant visa petition from DHS, the 180-day 
requirement would provide additional assurance that the petition was 
bona fide when filed. Finally, the proposed amendments do not in any 
way restrict DHS' current ability to revoke the approval of any 
immigrant visa petition for fraud, material misrepresentation, the 
invalidation or revocation of a labor certification, error, or any 
other circumstance that DHS believes is good cause for revocation. See 
8 CFR 205.1(a)(3)(iii)(A) and 205.2; see also 8 CFR 205.1(a)(3)(iii)(C) 
and (D).
    DHS welcomes public comment on all aspects of this proposed change.
2. Retention of Priority Dates
    DHS also proposes to amend its regulations to enhance the ability 
of beneficiaries with approved EB-1, EB-2 or EB-3 immigrant visa 
petitions to retain the priority dates associated with those petitions 
and rely on them when seeking to obtain an immigrant visa or adjust 
status.
    First, the proposed rule would update DHS regulations to provide 
clarity to all beneficiaries of employment-based immigrant visa 
petitions regarding the establishment of priority dates and to 
eliminate obsolete references in this area. See proposed 8 CFR 
204.5(d). DHS regulations currently provide how priority dates are 
determined for employment-based immigrant visa petitions that: (1) Are 
accompanied by labor certifications; (2) are accompanied by 
applications for Schedule A designation; or (3) are filed on behalf of 
special immigrants described in section 203(b)(4) of the INA. See 8 CFR 
204.5(d). The regulations, however, do not specify how priority dates 
are established for other employment-based immigrant visa petitions 
that do not require labor certifications--such as petitions filed under 
the EB-1 or EB-5 preference categories. DHS thus proposes to revise its 
regulations to clarify that the priority date of any properly filed 
employment-based immigrant visa petition that does not require a labor 
certification (including EB-1 petitions, EB-2 petitions involving 
national interest waivers, EB-5 petitions, and petitions filed on or 
after October 1, 1991 on behalf of special immigrants) will be the date 
the completed, signed petition is properly filed with DHS. See proposed 
8 CFR 204.5(d). The proposed rule would also delete a reference to 
``evidence that the alien's occupation is a shortage occupation within 
the Department of Labor's Labor Market Information Pilot Program,'' as 
that reference is now obsolete. Id.
    Second, the proposed rule would clarify and expand the ability of 
beneficiaries of approved EB-1, EB-2, and EB-3 immigrant visa petitions 
to retain their priority dates for use with subsequently filed EB-1, 
EB-2, and EB-3 petitions. See proposed 8 CFR 204.5(e). Current 
regulations generally allow such retention, but not where DHS denies 
the petition or revokes its approval under section 204(e) or 205 of the 
INA, 8 U.S.C. 1154(e) or 1155. See 8 CFR 204.5(e). DHS proposes to 
revise these regulations so that the priority dates of EB-1, EB-2, and 
EB-3 petitions may be used for subsequently filed EB-1, EB-2 and EB-3 
petitions, unless USCIS denies the petition (or otherwise fails to 
approve it) or revokes the petition's approval due to: (1) Fraud or a 
willful misrepresentation of a material fact; (2) a determination that 
the petition was approved in error; or (3) revocation or invalidation 
of the labor certification associated with the petition. See proposed 8 
CFR 204.5(e). The priority date of a petition that has its approval 
revoked on these grounds would not be retained, regardless of whether 
the petition's approval was previously revoked on other grounds.
    This change, in combination with the proposed changes to the 
automatic revocation provisions discussed above, would effectively 
expand beneficiaries' ability to retain the priority dates of their 
approved EB-1, EB-2, and EB-3 petitions, particularly those that are 
later withdrawn or that involve petitioning employers that go out of 
business. Notably, the ability to retain priority dates under this 
amendment

[[Page 81923]]

would begin immediately upon petition approval even if the petition's 
approval is thereafter revoked based on petition withdrawal or business 
termination less than 180 days after approval. This change would 
provide greater certainty and stability for beneficiaries in their 
pursuit of permanent residence in the United States. The change would 
also continue to allow DHS to restrict retention of priority dates in 
cases that merit such restriction, including in cases where the 
petition does not satisfy the pertinent legal requirements, cases where 
the underlying labor certification has been invalidated or revoked, 
cases involving fraud or willful misrepresentation, and cases involving 
DHS error.
    DHS welcomes public comment on all aspects of this proposed change.
3. Nonimmigrant Grace Periods
    To further improve stability and flexibility for high-skilled 
nonimmigrant workers, DHS proposes to authorize and improve grace 
periods in certain nonimmigrant visa classifications. As further 
described below, DHS is effectively proposing to extend the current 
grace periods for H-1B nonimmigrant workers--which authorize admission 
up to 10 days before and after the relevant validity period--to certain 
other high-skilled nonimmigrant classifications (E-1, E-2, E-3, L-1, 
and TN classifications). DHS further proposes to make a grace period 
available in these classifications, as well as the H-1B and H-1B1 
nonimmigrant classifications, for up to 60 days during the period of 
petition validity (or other authorized validity period).
a. Extending 10-Day Grace Periods to Certain Nonimmigrant 
Classifications
    First, DHS proposes to provide grace periods similar to those 
currently available to H-1B nonimmigrant workers to other high-skilled 
nonimmigrant workers. See proposed 8 CFR 214.1(l)(i). DHS regulations 
currently allow H-1B nonimmigrant workers to receive grace periods of 
up to 10 days before the validity periods of their H-1B petitions begin 
and 10 days after such validity periods end. See 8 CFR 
214.2(h)(13)(i)(A). During any such grace period, an H-1B nonimmigrant 
worker is considered ``admitted to the United States'' but not 
authorized to work. See 8 CFR 214.2(h)(13)(i)(A). The initial 10-day 
grace period allows H-1B nonimmigrant workers to make necessary 
preparations for their employment in the United States. The 10-day 
grace period at the end of the validity period provides a short window 
in which H-1B nonimmigrant workers may either (1) find new qualifying 
H-1B employment and extend their H-1B status or (2) get their affairs 
in order before departing the United States. See id.
    The proposed rule would extend similar 10-day grace periods to 
individuals in certain other employment-authorized nonimmigrant visa 
classifications, namely the E-1, E-2, E-3, L-1, and TN classifications. 
Providing grace periods in such classifications--which, like the H-1B 
classification, are generally available to high-skilled individuals and 
authorize stays of multiple years--reflects goals similar to those 
underlying AC21 and serves the national interest by promoting stability 
and flexibility for such workers. A 10-day grace period before the 
petition or authorized validity period begins allows these 
nonimmigrants a reasonable amount of time to enter the United States 
and prepare for their employment in the country. A 10-day grace period 
after their petition or authorized validity period ends provides a 
reasonable amount of time to depart the United States or take other 
actions to extend, change, or otherwise maintain lawful status after 
their period of authorized employment ends.
    Consistent with the current grace periods in the H-1B 
classification, the proposed rule would not allow eligible 
nonimmigrants to be employed during either of the 10-day grace periods. 
See proposed 8 CFR 214.1(l). Such periods are provided merely for 
eligible nonimmigrants to prepare for employment, seek new employment 
in order to extend or change status, or prepare for departure from the 
United States. Further, the proposed rule would extend grace periods to 
dependents of eligible principal nonimmigrant workers. Id. If a 
principal nonimmigrant worker is eligible to extend his or her stay 
under a grace period provided by this proposed rule, his or her 
dependent would also be eligible. Id. Finally, DHS also proposes to 
amend the existing grace period provision in current regulation with 
respect to the H-1B classification to align such provisions with the 
proposed cross-classification provision described above. See proposed 8 
CFR 214.2(h)(13)(i)(A).
    DHS welcomes public comment on all aspects of this proposed change.
b. Providing a 60-Day Grace Period to Certain Nonimmigrant 
Classifications
    Second, the proposed rule would authorize a grace period in the E-
1, E-2, E-3, H-1B1, L-1, and TN classifications, as well as the H-1B 
classification, during the period of petition validity (or other 
authorized validity period). To enhance job portability for these high-
skilled nonimmigrants, DHS proposes to generally establish a one-time 
grace period during an authorized nonimmigrant validity period of up to 
60 days or until the existing validity period ends, whichever is 
shorter, whenever employment ends for these individuals. See proposed 8 
CFR 214.1(l)(ii). DHS currently provides flexibility in other 
nonimmigrant classifications, such as those for F-1 nonimmigrant 
students and J-1 nonimmigrant exchange visitors.\70\ DHS believes that 
adding this one-time interim grace period of up to 60 days upon 
cessation of employment for additional classifications of nonimmigrants 
would allow nonimmigrants in the affected classifications sufficient 
time to respond to sudden or unexpected changes related to their 
employment. Such time may be used to seek new employment, seek a change 
of status to a different nonimmigrant classification, or make 
preparations for departure from the United States.
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    \70\ DHS regulations currently provide 60- and 30-day grace 
periods to F-1 nonimmigrant students and J-1 nonimmigrant exchange 
visitors, respectively. See 8 CFR 214.2(f)(5)(iv) and (j)(1)(ii). F-
1 students who have completed their course of study and any 
subsequently authorized practical training are granted an additional 
60-day period to prepare for departure or transfer to another 
school. See 8 CFR 214.2(f)(5)(iv). The 30-day grace period for J-1 
nonimmigrant exchange visitors is available to them during the 
validity period of their J-1 duration of status, which includes the 
duration of their J-1 exchange program and a 30-day departure 
preparation period. See 8 CFR 214.2(j)(1)(ii).
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    Under current policy, for example, an H-1B nonimmigrant worker 
whose employment ends--whether voluntarily or upon being laid off or 
terminated by the H-1B employer--is generally considered to be in 
violation of his or her status and must depart the United States 
immediately. Under the proposed rule, however, H-1B nonimmigrant 
workers would be afforded up to 60 days upon the end of employment to 
seek new H-1B employment and thus extend their H-1B status without 
having to immediately depart the country. Accordingly, this interim 
grace period would further support the enhanced job portability 
protections provided to H-1B nonimmigrant workers by AC21, which 
authorizes them to change jobs or employers upon the filing of a non-
frivolous H-1B petition, if otherwise eligible. The proposed change 
described in this section would provide H-1B and certain other 
nonimmigrant workers a small degree of stability and flexibility

[[Page 81924]]

when faced with sudden changes to their employment.
    As with the 10-day grace periods discussed in the preceding 
section, eligible nonimmigrants would not be authorized for employment 
during an interim grace period of up to 60 days proposed by this 
rule.\71\ See proposed 8 CFR 214.1(l). Also consistent with the 10-day 
grace periods, the proposed rule would extend the interim grace periods 
to dependents of eligible principal nonimmigrant workers. Id. During 
any interim period in which a principal nonimmigrant worker is eligible 
to extend his or her stay under this proposed change, his or her 
dependent would also be eligible.
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    \71\ If a qualifying H-1B petition is properly filed on the H-1B 
nonimmigrant worker's behalf during this 60-day grace period, DHS 
would consider the individual to no longer be in the 60-day grace 
period as they would be employment authorized under section 214(n) 
of the INA, 8 U.S.C. 1184(n).
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    DHS welcomes public comment on all aspects of this proposal, 
including on the appropriate length of the grace period and on the 
nonimmigrant classifications that should be afforded eligibility for 
such grace periods.
4. Eligibility for Employment Authorization in Compelling Circumstances
    DHS proposes to further enhance stability and flexibility for high-
skilled nonimmigrant workers who are the beneficiaries of approved 
immigrant visa petitions filed by sponsoring U.S. employers and who 
face compelling circumstances while they wait for their immigrant visas 
to become available. As discussed in Section III.E., the continually 
expanding backlogs for employment-based immigrant visas can place 
sponsored workers and their sponsoring employers in untenable 
positions.
    Currently, sponsoring employers and sponsored workers cannot 
deviate from the specific job offer described in a labor certification 
and approved employment-based immigrant visa petition until the worker: 
(1) Has an immigrant visa immediately available to him or her; (2) has 
filed an application for adjustment of status; and (3) has such 
application pending for at least 180 days.\72\ See INA section 204(j), 
8 U.S.C. 1154(j). Before all three of these conditions are met, an 
employer generally cannot promote the sponsored worker, move the worker 
to another position, or transfer the worker to the same or a similar 
position in a different geographic area without jeopardizing the 
immigrant visa petition approved on the worker's behalf, regardless of 
the circumstances. Neither can a sponsored worker accept employment 
with an employer other than the sponsoring employer without creating 
the same risk. Whether the worker and his or her family are facing a 
medical or other emergency is currently immaterial. Neither is it 
relevant that the worker may have faced retaliation from the employer 
for engaging in protected conduct, or that the lack of flexibility may 
result in significant business or economic harm to the employer or 
worker.
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    \72\ Over 75 percent of principal beneficiaries of employment-
based immigrant visa petitions, sponsored for LPR status by 
employers based on their skills and contributions to the U.S. 
economy, are seeking classification as EB-2 and EB-3 immigrants and 
thus, with limited exception, are subject to a labor market test 
requiring a labor certification from the Department of Labor. See 
DHS Yearbook of Immigration Statistics, Table 7 http://www.dhs.gov/yearbook-immigration-statistics-2013-lawful-permanent-residents.
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    To provide flexibility in the face of such compelling 
circumstances, DHS proposes to extend employment authorization to a 
discrete subset of high-skilled workers who are the beneficiaries of 
approved employment-based immigrant visa petitions and are in the 
United States in certain nonimmigrant statuses. Specifically, the 
proposed rule would provide the ability for individuals to apply for 
employment authorization for 1 year when they meet all of the following 
criteria: (1) The individual is currently in the United States and 
maintaining E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status; (2) the 
individual is the beneficiary of an approved immigrant visa petition 
under the EB-1, EB-2 or EB-3 classification; (3) the individual does 
not have an immigrant visa immediately available; and (4) the 
individual can demonstrate to the satisfaction of DHS compelling 
circumstances that justify an independent grant of employment 
authorization. See proposed 8 CFR 204.5(p)(1). DHS is proposing this 
change to provide qualified nonimmigrants who are beneficiaries of 
approved employment-based immigrant visa petitions, but are awaiting an 
immigrant visa, a stopgap measure for retaining employment 
authorization for a limited period when compelling circumstances arise.
    DHS anticipates that use of this proposal, if finalized, would be 
limited for various reasons. First, DHS believes that the other changes 
proposed in this rule to enhance flexibility for employers and 
nonimmigrant workers, if finalized, would significantly decrease 
instances where this proposal will be needed. Second, nonimmigrant 
workers will have significant incentive to choose other options, as the 
proposal discussed in this section would require the worker to 
relinquish his or her nonimmigrant status, thus restricting his or her 
ability to change nonimmigrant status or adjust status to that of a 
lawful permanent resident. Accepting the employment authorization under 
this proposal, for example, would generally require the worker to 
forego adjusting status in the United States and instead seek an 
immigrant visa abroad through consular processing. Finally, DHS 
anticipates that a limited number of nonimmigrant workers with approved 
EB-1, EB-2, or EB-3 immigrant visa petitions will be able to 
demonstrate compelling circumstances justifying an independent grant of 
employment authorization. Employment authorization based on compelling 
circumstances will not be available to a nonimmigrant worker solely 
because his or her statutory maximum time period for nonimmigrant 
status is approaching or has been reached. Likewise, employment 
authorization generally would not be available to a nonimmigrant if the 
tendered compelling circumstance is within his or her control.
    DHS is not proposing to define the term ``compelling 
circumstances'' at this time, as the Department seeks to retain 
flexibility as to the types of compelling circumstances that clearly 
warrant the Secretary's exercise of discretion in granting employment 
authorization. DHS, however, has currently identified four 
circumstances in which it may consider granting employment 
authorization under the proposed change:
     Serious Illnesses and Disabilities. The nonimmigrant 
worker can demonstrate that he or she, or his or her dependent, is 
facing a serious illness or disability that entails the worker moving 
to a different geographic area for treatment or otherwise substantially 
changing his or her employment circumstances.
     Employer Retaliation. The nonimmigrant worker can 
demonstrate that he or she is involved in a dispute regarding the 
employer's illegal or dishonest activity as evidenced by, for example, 
a complaint filed with a relevant government agency or court, and the 
employer has taken retaliatory action that justifies granting separate 
employment authorization to the worker on a discretionary basis.
     Other Substantial Harm to the Applicant. The nonimmigrant 
worker can demonstrate that due to compelling circumstances, he or she 
will be unable to timely extend or otherwise maintain status, or obtain 
another nonimmigrant status, and absent continued employment 
authorization under this proposal the applicant and his or her family 
would suffer substantial harm.

[[Page 81925]]

Such circumstances, for example, may involve an H-1B nonimmigrant 
worker who has been applying an industry-specific skillset in a high-
technology sector for years with a U.S. entity that is unexpectedly 
terminating its business, where the worker is able to establish: (1) 
That the same or a similar industry (e.g., nuclear energy, aeronautics, 
or artificial intelligence) does not materially exist in the home 
country, and (2) that the resulting inability to find productive 
employment would cause significant hardship to the worker and his or 
her family if required to return home. In such circumstances, the 
employment authorization proposal would provide the individual with an 
opportunity to find another employer to sponsor him or her for 
immigrant or nonimmigrant status and thereby protect the worker and his 
or her family members from the substantial harm they would suffer if 
required to depart the United States.
     Significant Disruption to the Employer. The nonimmigrant 
worker can show that due to compelling circumstances, he or she is 
unexpectedly unable to timely extend or change status, there are no 
other possible avenues for the immediate employment of such worker with 
that employer, and the worker's departure would cause the petitioning 
employer substantial disruption to a project for which the worker is a 
critical employee. Such circumstances, for example, may include the 
following:
    [cir] An L-1B nonimmigrant worker is sponsored for permanent 
residence by an employer that subsequently undergoes corporate 
restructuring (e.g., a sale, split, or spin off) such that the worker's 
new employer is no longer a multinational company eligible to employ L-
1B workers, there are no available avenues to promptly obtain another 
work-authorized nonimmigrant status for the worker, and the employer 
would suffer substantial disruption due to the critical nature of the 
worker's services. In such cases, the employment authorization proposal 
would provide the employer and worker a temporary bridge allowing for 
continued employment while they continue in their efforts to obtain a 
new nonimmigrant or immigrant status.
    [cir] An H-1B nonimmigrant worker is providing critical work on 
biomedical research for an entity affiliated with an institution of 
higher education, thus making the entity exempt from the H-1B cap, when 
the funding for the research unexpectedly changes and now comes through 
a for-profit entity, thus causing the entity to lose its cap-exempt 
status. In cases where the worker is unable to quickly obtain H-1B 
status based on a cap-subject H-1B petition or another work-authorized 
nonimmigrant status, the employment authorization proposal would 
provide a temporary bridge for continued employment of the worker when 
his or her departure would create substantial disruption to the 
employer's biomedical research.
    In each of these examples of situations where USCIS may find 
compelling circumstances, the proposed provision would provide 
individuals with the ability to retain employment authorization and the 
opportunity to find a new sponsoring employer or explore options with 
the current sponsoring employer. DHS invites public comment on these 
examples of compelling circumstances or other types of compelling 
circumstances that may warrant a discretionary grant of separate 
employment authorization. DHS also welcomes public comment on the 
manner in which applicants should be expected to document such 
compelling circumstances.
    As noted above, DHS is proposing this employment authorization only 
for certain workers who are the beneficiaries of approved employment-
based immigrant visa petitions and who are in the United States in E-3, 
H-1B, H-1B1, O-1, or L-1 nonimmigrant status. See proposed 8 CFR 
204.5(p)(1)(i). The requirement that the individual must be the 
beneficiary of an approved employment-based immigrant visa petition is 
intended to limit employment authorization to those workers who are 
seeking employment-based permanent residence in the United States and 
are merely awaiting an immigrant visa and either: (1) Are the subject 
of an approved labor certification indicating that their employment 
would not harm U.S. workers or (2) are in a classification that 
Congress has chosen to prioritize by exempting them from the labor 
certification requirement. DHS is further limiting eligibility to the 
listed nonimmigrant classifications as they represent the vast majority 
of high-skilled nonimmigrant workers who are sponsored for permanent 
residence by U.S. employers.\73\ DHS invites public comment on the 
listed nonimmigrant classifications and whether other nonimmigrant 
classifications should be considered. DHS also invites public comment 
on the requirement that applicants be the beneficiaries of approved EB-
1, EB-2, or EB-3 immigrant visa petitions.
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    \73\ Based on USCIS analysis of approved employment-based 
immigrant visa petitions with the ``beneficiary's current 
nonimmigrant status'' field completed, approximately 97 percent held 
H-1B or H-1B1 status, and approximately 2.9 percent held L-1 
nonimmigrant status. Approximately 10.5 percent of approved 
petitions had missing information for that field.
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    DHS is further proposing that workers who have been granted 1 year 
of employment authorization under the proposed rule would not be able 
to extend such employment authorization at the end of the 1-year period 
unless certain criteria are met. DHS is proposing to limit renewal of 
such employment authorization to those workers who can show that they 
continue to be the principal beneficiary of an approved EB-1, EB-2 or 
EB-3 immigrant visa petition and either: (1) The worker continues to 
face compelling circumstances; or (2) the worker has a priority date 
that is less than 1 year from the current cut-off date for the relevant 
employment-based category and country of nationality in the most recent 
visa bulletin published by the Department of State. See proposed 8 CFR 
204.5(p)(3)(i).
    DHS further proposes that individuals would be ineligible to obtain 
employment authorization under this rule, whether initial or renewal, 
if at the time of the filing of the EAD application the alien's 
priority date is more than 1 year beyond the date on which immigrant 
visa numbers were authorized to be issued to individuals with the same 
priority date for the relevant employment-based category and country of 
nationality. DHS believes this outer limit would discourage individuals 
from relying on the proposed employment authorization in lieu of 
completing the employment-based immigrant visa process. See proposed 8 
CFR 204.5(p)(5).
    DHS also proposes to generally require these applicants to appear 
in person at a USCIS Application Support Center (ASC) to submit 
biometric information and pay a biometric fee as prescribed in 8 CFR 
103.7(b)(1)(i)(C). See proposed 8 CFR 204.5(p)(4). This requirement 
would allow DHS to better assess the applicant's potential risk to 
public safety and national security, and to enable DHS to make a more 
informed decision when exercising discretion to approve or deny such 
application for employment authorization. See 8 CFR 274a.13(a)(1). DHS 
also is proposing that, in all cases, an individual would be ineligible 
for employment authorization under this provision if convicted of any 
felony or two or more misdemeanors. See proposed 8 CFR 204.5(p)(5)(i). 
DHS welcomes public comment on these additional requirements.
    With regard to dependents of qualifying principal nonimmigrants,

[[Page 81926]]

DHS proposes to extend employment authorization eligibility to those 
dependent spouses and children who are also present in the United 
States in nonimmigrant status, but only if the principal spouse or 
parent is granted employment authorization under this rule and such 
authorization has not been terminated or revoked. See proposed 8 CFR 
204.5(p)(2). The validity period of the family member's employment 
authorization may not extend beyond the period authorized for the 
principal spouse or parent. Id. Dependent family members seeking 
renewals of employment authorization would be subject to these same 
limitations. See proposed 8 CFR 204.5(p)(3)(ii).
    DHS further proposes conforming amendments to 8 CFR 274a.12(c), 
which lists classes of individuals who must apply for employment 
authorization. These amendments would add two new categories of 
individuals eligible for employment authorization, one for the 
principal beneficiaries described above and one for their dependent 
spouses and children. See proposed 8 CFR 274a.12(c)(35) and (36). Under 
these regulations, qualifying individuals would not be permitted to 
engage in employment until USCIS approves, as a matter of discretion, 
the employment authorization application and issues an EAD (Form I-766, 
or successor form). See 8 CFR 274a.12(c) and 8 CFR 274a.13(a)(1).
    DHS welcomes public comment on all aspects of this proposal, 
including the appropriate validity period for grants of employment 
authorization and the nonimmigrant visa classifications that should be 
eligible to request such employment authorization.
5. H-1B Licensing Requirements
    DHS proposes to amend its regulations consistent with current 
policy for determining when H-1B status may be granted notwithstanding 
the H-1B beneficiary's inability to obtain a required license. See 
proposed 8 CFR 214.2(h)(4)(v)(C)(2). Generally, if the beneficiary of 
an H-1B petition requires a state or local license to fully perform the 
duties of the occupation described in the petition, the petition may 
not be approved unless the beneficiary possesses the license. See 8 CFR 
214.2(h)(4)(v)(A). However, this sometimes results in a ``Catch-22'' 
situation, as the state or local licensing authority may not issue 
licenses to individuals who do not have social security numbers or 
cannot otherwise prove employment authorization (such as with an 
approved H-1B petition). Under current policy, DHS may approve an H-1B 
petition in such cases for a 1-year period, provided that the only 
obstacle to obtaining licensure is the lack of a social security number 
or employment authorization.\74\
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    \74\ USCIS Memorandum from Donald Neufeld, ``Adjudicator's Field 
Manual Update: Chapter 31: Accepting and Adjudicating H-1B Petitions 
When a Required License is not Available due to State Licensing 
Requirements Mandating Possession of a Valid Immigration Document as 
Evidence of Employment Authorization.'' (March 21, 2008) (``Neufeld 
Memo March 2008''), INS Memorandum from Thomas Cook, ``Social 
Security Cards and the Adjudication of H-1B Petitions'' (Nov. 20, 
2001) (``Cook Memo Nov. 2001'').
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    DHS is now proposing to formalize this policy in its H-1B 
regulations. Under the proposed rule, DHS may approve an H-1B petition 
for a 1-year validity period if a state or local license to engage in 
the relevant occupation is required and the appropriate licensing 
authority will not grant such license absent evidence that the 
beneficiary has been issued a social security number or granted 
employment authorization. See proposed 8 CFR 214.2(h)(4)(v)(C)(2)(i). 
Petitioners filing H-1B petitions on behalf of such beneficiaries would 
be required to submit evidence from the relevant licensing board 
indicating that the only obstacle to the beneficiary's licensure is the 
lack of a social security number or employment authorization. Id. In 
addition, the petitioner must establish that the beneficiary satisfies 
all other regulatory and statutory requirements for engaging in the 
occupation. In other words, the petitioner would need to demonstrate 
that at the time of the petition's filing, the beneficiary meets the 
educational, training, experience, or other substantive requirements 
for obtaining the relevant license (other than acquiring a social 
security number or being employment authorized).
    Moreover, the petitioner would generally be required to demonstrate 
that at the time of the petition's filing, the beneficiary has already 
filed an application for the relevant license in accordance with state 
or local licensing procedures. See proposed 8 CFR 
214.2(h)(4)(v)(C)(2)(ii). In the alternative, the petitioner would be 
required to demonstrate that the beneficiary cannot file such an 
application due to the lack of a social security number or employment 
authorization.\75\ Id. The proposed rule would also make clear that a 
beneficiary who has been approved for a 1-year validity period may not 
obtain an extension of H-1B status without proof of licensure. Any 
subsequent H-1B petition filed on behalf of such a beneficiary with 
respect to the same occupation must contain proof that the beneficiary 
has obtained the required license. See proposed 8 CFR 
214.2(h)(4)(v)(C)(3).
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    \75\ For example, as of 2014, the State of California requires 
provision of a social security account number when applying for an 
acupuncture license. According to its Web site, California will not 
process an application on which the applicant does not provide a 
social security account number. See www.acupuncture.ca.gov/pubs_forms/license_app.pdf. In such cases under the proposed rule, 
the petitioner would be allowed to obtain a 1-year approval for the 
unlicensed H-1B beneficiary.
---------------------------------------------------------------------------

    The proposed rule would also clarify that an individual without an 
occupational license may obtain H-1B status if he or she will be 
employed in a state that allows such an unlicensed individual to fully 
practice the occupation under the supervision of licensed senior or 
supervisory personnel. In such cases, DHS will examine the nature of 
the H-1B nonimmigrant worker's proposed duties and the level at which 
they will be performed, as well as evidence provided by the petitioner 
as to the identity, physical location, and credentials of the 
individual(s) who will supervise the H-1B nonimmigrant worker. See 
proposed 8 CFR 214.2(h)(4)(v)(C)(1). If the facts demonstrate that the 
H-1B nonimmigrant worker will fully perform the duties of the 
occupation under the supervision of licensed senior or supervisory 
personnel in that occupation, H-1B classification may be granted. Id.
    DHS invites public comment on all aspects of this proposal.

C. Processing of Applications for Employment Authorization Documents

    DHS is also proposing to update its regulations governing the 
processing of Applications for Employment Authorization (Forms I-765). 
First, to help prevent gaps in employment authorization, DHS proposes 
to automatically extend the validity of expiring EADs for up to 180 
days from such document's and such employment authorization's 
expiration date in certain circumstances upon the timely filing of an 
application to renew such documents. Such automatic renewal would be 
available to individuals with pending applications for adjustment of 
status and other employment-authorized individuals who: (1) Are seeking 
renewal of an EAD (and, if applicable, employment authorization) based 
on the same employment authorization category under which it was 
granted (or the renewal application is for an individual approved for 
Temporary Protected Status (TPS) whose EAD was issued pursuant to 8 CFR 
274a.12(c)(19)); and (2) either continue to be employment authorized 
incident to status beyond the expiration of the

[[Page 81927]]

EAD or are applying for renewal under a category that does not first 
require adjudication of an underlying application, petition, or 
request. Second, to address national security and fraud concerns, DHS 
is proposing to eliminate the current regulatory provisions that 
require adjudication of EAD applications within 90 days of filing and 
that authorize interim EADs in cases where such adjudications are not 
conducted within the 90-day timeframe. Taken together, these updates 
would provide additional stability and certainty to employment-
authorized individuals and their U.S. employers, while reducing 
opportunities for fraud and better accommodating increased security 
measures, including technological advances that utilize centralized 
production of tamper-free documents.
1. Automatic Extensions of EADs in Certain Circumstances
    First, DHS proposes to amend its regulations to help prevent gaps 
in employment authorization for certain employment-authorized 
individuals who are seeking to renew expiring EADs. Under the proposed 
rule, such individuals who fall within certain classes of individuals 
eligible for employment authorization may have the validity of their 
EADs (and, if necessary, their employment authorization as well) 
extended for up to 180 days from such document's and such employment 
authorization's expiration date upon the timely filing of an 
application to renew such EAD (or the renewal application is for an 
individual approved for TPS whose EAD was issued pursuant to 8 CFR 
274a.12(c)(19)). See proposed 8 CFR 274a.13(d)(1). Specifically, the 
rule would authorize automatic extensions of their EADs--and, for those 
qualifying individuals who are not employment authorized incident to 
status, extensions of their employment authorization \76\--so long as 
all of the following conditions are met:
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    \76\ For classes of employment-eligible individuals listed at 8 
CFR 274a.12(c), employment authorization is based on the 
adjudication of the Application for Employment Authorization and is 
not incident to their underlying immigration status. For such 
individuals who are covered by this rule, DHS is proposing to extend 
both their underlying employment authorization as well as their 
EADs.
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    (1) The individual files a request for renewal of his or her EAD 
(currently through an Application for Employment Authorization, Form I-
765) prior to its expiration date.
    (2) The individual is requesting renewal based on the same 
employment authorization category under which the expiring EAD was 
granted (as indicated on the face of the EAD), or the individual has 
been approved for TPS and his or her EAD was issued pursuant to 8 CFR 
274a.12(c)(19).
    (3) The individual either continues to be employment authorized 
incident to status beyond the expiration of the EAD or is applying for 
renewal under a category that does not first require adjudication of an 
underlying application, petition, or request.
    Id. An expiring EAD that has its validity automatically extended 
under this proposal would continue to be subject to any limitations and 
conditions that applied before the extension. See proposed 8 CFR 
274a.13(d)(2). Moreover, although the validity of such an EAD would be 
extended for up to 180 days, such validity is automatically terminated 
upon issuance of notification of a decision denying the individual's 
renewal application. See proposed 8 CFR 274a.13(d)(3). The automatic 
extension could also be terminated before a decision is made on the 
renewal application through written notice to the applicant, notice 
published in the Federal Register, or any other applicable authority.
    Moreover, DHS is proposing that the expired EAD, in combination 
with a Notice of Action (Form I-797C) indicating timely filing of the 
application to renew the EAD (provided it lists the same employment 
authorization category as that listed on the expiring or expired EAD), 
would be considered an unexpired EAD for purposes of complying with 
Employment Eligibility Verification (Form I-9) requirements. See 
proposed 8 CFR 274a.13(d)(4). Thus, when the expiration date on the 
face of the EAD is reached, an individual who is continuing in his or 
her employment with the same employer may, along with the employer, 
update the previously completed Form I-9 to reflect the extended 
expiration date based on the automatic extension while the renewal is 
pending. Reverification of employment authorization, however, would not 
be triggered until after the expiration of the additional period of 
validity granted through the automatic extension provisions discussed 
above. See proposed 8 CFR 274a.2(b)(1)(vii).
    These provisions would significantly mitigate the risk of gaps in 
employment authorization and required documentation for eligible 
individuals, thereby benefitting them and their employers. For 
compliance with Form I-9 documentation requirements, however, 
individuals would need to file their renewal applications far enough in 
advance to receive the Notice of Action (Form I-797C), which is 
necessary to document that filing for their employers, prior to the 
expiration of their EADs. The Form I-797C generation and issuance 
process is currently automated such that it is able to issue forms 
within a few days after receiving an Application for Employment 
Authorization. DHS expects that applicants would generally receive the 
Form I-797C within 2 weeks of the date of filing.\77\
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    \77\ Depending on any significant surges in filings, however, 
there may be periods in which USCIS takes longer than 2 weeks to 
issue Notices of Action (Forms I-797C).
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    As discussed, DHS is proposing an automatic extension period of up 
to 180 days past the expiration date noted on the face of the EAD for 
qualifying individuals. DHS believes that this time period is 
reasonable and provides more than ample time for USCIS to complete the 
adjudication process based on USCIS's current 3-month average 
processing time for Applications for Employment Authorization.\78\ 
Additionally, this 180-day automatic extension period is similar to 
that used in other contexts and would thus provide consistency for 
employers that are responsible for verifying employment authorization. 
For example, DHS has a long-standing policy of providing 180-day 
automatic extensions of EADs to re-registering beneficiaries of 
Temporary Protected Status (TPS) when the re-registration period does 
not provide sufficient time to renew EADs.\79\ DHS regulations also 
provide certain F-1 nonimmigrants seeking extensions of Optional 
Practical Training (OPT) with automatic extensions of their employment 
authorization for up to 180 days. See 8 CFR 274a.12(b)(6)(iv).
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    \78\ See current USCIS processing timeframes at https://egov.uscis.gov/cris/processTimesDisplayInit.do.
    \79\ See, e.g., 80 FR 51582 (Aug. 25, 2015) (Notice auto-
extending EADs of Haitian TPS beneficiaries for 6 months).
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    As noted above, DHS is proposing two conditions to ensure that only 
eligible aliens receive automatic extensions of their EADs and thus to 
protect the employment authorization program from abuse. First, DHS is 
proposing to require that the renewal application be based on the same 
employment authorization category as that indicated on the expiring 
EAD, including renewal applications based on TPS re-registration filed 
by applicants who still hold EADs that were initially issued under 8 
CFR 274a.12(c)(19). See proposed 8 CFR 274a.13(d)(1)(ii). Because the 
resulting Notice of Action (Form I-797C) would indicate the

[[Page 81928]]

employment authorization category cited in the application,\80\ this 
requirement would help to ensure, both to DHS and to employers, that 
such a notice was issued in response to a timely filed renewal 
application. Second, DHS is proposing to limit eligibility for 
automatic extensions to individuals who continue to be employment 
authorized incident to status beyond the expiration of the EAD or who 
are seeking to renew employment authorization in a category in which 
eligibility for such renewal is not contingent on a USCIS adjudication 
of a separate, underlying application, petition, or request. See 
proposed 8 CFR 274a.13(d)(1)(iii). This limitation would similarly help 
to ensure that only individuals eligible for employment authorization 
are able to extend their employment authorization under this proposal.
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    \80\ The Notice of Action that TPS beneficiaries will receive 
may not necessarily be based on the filing of a Form I-765, but 
instead on their TPS re-registration application filed on Form I-
821, Application for Temporary Protected Status. In such cases, the 
employment authorization category would not be listed. USCIS intends 
to revise the Notices of Action issued to TPS beneficiaries to 
indicate the auto-extension provided by this rule.
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    Based on the above parameters, DHS has identified 15 employment 
authorization categories where renewal applicants would be able to 
receive automatic extensions under this proposed rule. Among these are 
applicants for adjustment of status. So long as their applications for 
adjustment of status remain pending or USCIS determines, upon written 
notice to the applicant or notice published in the Federal Register, 
that it must terminate the auto-extension by category, these applicants 
are eligible for employment authorization under current regulation. See 
8 CFR 274a.12(c)(9). Because such eligibility is not contingent on the 
adjudication of a separate application, petition, or request, DHS 
believes it is reasonable to make automatic extensions available to 
such individuals. The 15 categories of employment authorization that 
would allow for automatic extensions under this rule are:
     Aliens admitted as refugees. See 8 CFR 274a.12(a)(3).
     Aliens granted asylum. See 8 CFR 274a.12(a)(5).
     Aliens admitted as parents or dependent children of aliens 
granted permanent residence under section 101(a)(27)(I) of the INA, 8 
U.S.C. 1101(a)(27)(I). See 8 CFR 274a.12(a)(7).
     Aliens admitted to the United States as citizens of the 
Federated States of Micronesia or the Marshall Islands pursuant to 
agreements between the United States and the former trust territories. 
See 8 CFR 274a.12(a)(8).
     Aliens granted withholding of deportation or removal. See 
8 CFR 274a.12(a)(10).
     Aliens granted Temporary Protected Status (TPS) 
(regardless of the employment authorization category on their current 
EADs).\81\ See 8 CFR 274a.12(a)(12) and (c)(19).
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    \81\ DHS is further proposing to specifically identify TPS 
beneficiaries as eligible for automatic extensions under this 
proposed rule. See proposed 8 CFR 274a.13(d)(1)(iii). This will 
include TPS beneficiaries who have existing EADs issued originally 
under 8 CFR 274a.12(a)(12) or (c)(19).
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     Aliens who have properly filed applications for TPS and 
who have been deemed prima facie eligible for TPS under 8 CFR 244.10(a) 
and have received an EAD as a ``temporary treatment benefit'' under 8 
CFR 244.10(e) and 274a.12(c)(19).
     Aliens who have properly filed applications for asylum or 
withholding of deportation or removal. See 8 CFR 274a.12(c)(8).
     Aliens who have filed applications for adjustment of 
status under section 245 of the INA, 8 U.S.C. 1255. See 8 CFR 
274a.12(c)(9).
     Aliens who have filed applications for suspension of 
deportation under section 244 of the INA (as it existed prior to April 
1, 1997), cancellation of removal pursuant to section 240A of the INA, 
or special rule cancellation of removal under section 309(f)(1) of the 
Illegal Immigration Reform and Immigrant Responsibility Act of 1996. 
See 8 CFR 274a.12(c)(10).
     Aliens who have filed applications for creation of record 
of lawful admission for permanent residence. See 8 CFR 274a.12(c)(16).
     Aliens who have properly filed legalization applications 
pursuant to section 210 of the INA, 8 U.S.C. 1160. See 8 CFR 
274a.12(c)(20).
     Aliens who have properly filed legalization applications 
pursuant to section 245A of the INA, 8 U.S.C. 1255a. See 8 CFR 
274a.12(c)(22).
     Aliens who have filed applications for adjustment pursuant 
to section 1104 of the LIFE Act. See 8 CFR 274a.12(c)(24).
     Aliens who are the principal beneficiaries or qualified 
children of approved VAWA self-petitioners, under the employment 
authorization category ``(c)(31)'' in the form instructions to the 
Application for Employment Authorization (Form I-765).
    As noted above, each of these categories describes individuals who 
are eligible to apply for employment authorization after their EADs 
have expired and are thus candidates for automatic extensions of EADs 
under this proposed rule. To provide maximum clarity to the regulated 
public, DHS proposes to list these categories as eligible for automatic 
extensions on USCIS' Web site.
    DHS is not currently proposing to make automatic extensions of EADs 
(or attendant employment authorization) available to other classes of 
employment-authorized individuals. For example, DHS considered making 
automatic extensions available to certain H-4 nonimmigrants (i.e., 
spouses of H-1B nonimmigrant workers) who are eligible for employment 
authorization and EADs. See 8 CFR 274a.12(c)(26). Such H-4 
nonimmigrants are generally eligible to renew their EADs, but only so 
long as they can extend their H-4 status, which is itself dependent on 
their spouses remaining in H-1B status. Thus, whether an H-4 
nonimmigrant's eligibility for employment authorization continues 
beyond the expiration date of his or her EAD is typically contingent 
upon adjudication of an underlying application to extend his or her 
stay in H-4 status and, in most instances, an underlying petition to 
extend the stay of the H-1B nonimmigrant worker. In such cases, DHS 
cannot be reasonably assured that the individual will continue to be 
eligible to apply for employment authorization without first reviewing 
the underlying application, petition, or request. DHS thus does not 
propose to make automatic extensions of employment authorization 
available to this category, or to other categories in which employment 
authorization is contingent on adjudication of another application, 
petition, or request.
    DHS welcomes public comment on all aspects of this proposal.
2. Elimination of 90-Day Processing Timeframe and Interim EADs
    Second, due to fraud and national security concerns, and in light 
of technological and process advances with respect to document 
production, DHS is proposing to eliminate certain existing regulations 
concerning the processing of Applications for Employment Authorization 
(Forms I-765). Specifically, DHS would eliminate the provision at 8 CFR 
247a.13(d) that currently requires, with certain limited exceptions, 
the adjudication of Applications for Employment Authorization within 90 
days of receipt.\82\ DHS would also eliminate the

[[Page 81929]]

provision in that regulation that requires the issuance of interim EADs 
with validity periods of up to 240 days when such an application is not 
adjudicated within the 90-day period. In addition to the automatic 
extension provisions for renewal applications proposed in this rule, 
DHS would instead address processing timeframes through operational 
policy guidance that reinforces the Department's continued commitment 
to a 90-day processing timeframe and provides recourse to individuals 
whose case is nearing the 90-day mark, including the ability to contact 
USCIS to request prioritized processing.
---------------------------------------------------------------------------

    \82\ Excepted from the 90-day processing requirement are the 
following classes of aliens: Applicants for asylum described in 8 
CFR 274a.12(c)(8); certain H-4 spouses of H-1B nonimmigrants; and 
applicants for adjustment applying under the Haitian Refugee 
Immigrant Fairness Act of 1998 (HRIFA). Application processing for 
asylum applicants are governed by current 8 CFR 274a.13(a)(2) and do 
not include provisions for interim employment authorization 
documentation. The provision at 8 CFR 274a.13(d) also exempts 
adjustment applicants described in 8 CFR 245.13(j). In 2011, 8 CFR 
245.13 was removed from DHS regulations. See 76 FR 53764, 53793 
(Aug. 29, 2011). However, the cross-reference to 8 CFR 245.13(j) in 
current 8 CFR 274a.13(d) was inadvertently retained. Prior to its 
removal in 2011, 8 CFR 245.13 provided for adjustment of status for 
certain nationals of Nicaragua and Cuba pursuant to section 202 of 
the Nicaragua Adjustment and Central American Relief Act, Public Law 
105-100, 111 Stat. 2160, 2193 (Nov. 19, 1997). The application 
period for benefits under this provision ended April 1, 2000. USCIS 
removed 8 CFR 245.13 from DHS regulations in 2011 as it no longer 
has pending applications pursuant to this provision. See 76 FR at 
53793.
---------------------------------------------------------------------------

    DHS believes that the 90-day timeframe and interim EAD provisions 
are outdated and no longer reflect the operational realities of the 
Department, including its adoption of improved processes and 
technological advances in document production to reduce fraud and 
address threats to national security. The 90-day timeframe at 8 CFR 
274a.13(d), for example, was established more than 20 years ago when 
Applications for Employment Authorization were adjudicated at local 
offices of legacy INS and corresponding documents were also produced by 
such offices. See 52 FR 16216, 16228 (May 1, 1987) (setting 
adjudication timeframe at 60 days); see also 56 FR 41767, 41787 (Aug. 
23. 1991) (increasing adjudication timeframe to 90 days). At the time, 
EADs (then known as Forms I-688B) were produced by local offices that 
were equipped with stand-alone machines for such purposes. While 
decentralized card production resulted in immediate and customized 
customer service for the public, the cards that were produced did not 
contain state-of-the art security features and were thus susceptible to 
tampering and counterfeiting. Such deficiencies became increasingly 
apparent as the United States faced new and increasing threats to 
national security and public safety that did not exist when the current 
regulations were promulgated.
    In response to these concerns, the former INS and DHS made 
considerable efforts to upgrade application procedures and leverage 
technology to enhance integrity, security, and efficiency in all 
aspects of the immigration process. For example, to combat the document 
security problem discussed above, the former INS took steps to 
centralize application filing locations and card production. By 2006, 
DHS fully implemented these centralization efforts.\83\ DHS now 
requires that Applications for Employment Authorization be filed at 
remote processing centers.\84\ Some classes of employment-eligible 
aliens are also required to appear at an Application Support Center 
(ASC) for collection of their biometric information before DHS can 
complete adjudication of such applications.\85\ If DHS ultimately 
approves such an application, a card order is sent to a card production 
facility. The card facility produces a tamper-proof card reflecting the 
specific employment authorized category and mails that card to the 
applicant.
---------------------------------------------------------------------------

    \83\ See USCIS Memorandum from Michael Aytes, ``Elimination of 
Form I-688B, Employment Authorization Card'' (Aug. 18, 2006). In 
January 1997, the former INS began issuing new, more secure EADs 
from a centralized location and gave it a new form number (I-766) to 
distinguish it from the less secure, locally produced EADs (Forms I-
688B). DHS stopped issuing Form I-688B EADs from local offices 
altogether in 2006.
    \84\ Asylum applicants, however, make their request for 
employment authorization directly on the Application for Asylum and 
Withholding of Removal, Form I-589, and need not file a separate 
Application for Employment Authorization (Form I-765) following a 
grant of asylum. If they are requesting employment authorization 
based on their pending asylum application, they must file a separate 
request for employment authorization on Form I-765.
    \85\ For example, many individuals who concurrently file their 
Application for Employment Authorization with another application or 
petition, such as TPS applicants, must appear at an ASC for 
submission of their biometric information before DHS completes 
adjudication of their applications.
---------------------------------------------------------------------------

    While the 90-day timeframe and interim EAD provisions at 8 CFR 
274a.13(d) may have made sense when applications were processed and 
cards were produced at the local level, DHS believes that the 
intervening changes discussed above now require that such provisions be 
eliminated. DHS, for example, may be unable to meet the 90-day 
processing timeframe for applicants who are required to submit 
biometric information at an ASC but who do not provide such information 
in a timely manner. DHS may also be unable to meet the 90-day timeframe 
in a given case where security checks remain pending. Given the fraud 
and national security concerns discussed above, DHS believes it is not 
prudent to issue interim EADs in such cases. Moreover, the 90-day 
timeframe constrains DHS' ability to maintain necessary levels of 
security when application receipt volumes suddenly increase, as well as 
the ability to implement security improvements if those improvements 
may further extend the adjudication of applications in certain cases.
    Given these considerations, DHS believes that the 90-day timeframe 
and interim EAD provisions at 8 CFR 274a.13(d) do not provide 
sufficient flexibility to reconcile with DHS' core missions to enforce 
and administer our immigration laws and enhance security. Moreover, DHS 
notes that under current processing timelines, elimination of these 
provisions would not have any noticeable effect on the vast majority of 
applicants.\86\ DHS remains committed to the current 90-day processing 
goal, as well as the current policy of prioritizing application 
processing where applications are pending for at least 75 days. 
Consistent with current protocols, applicants whose initial or renewal 
EAD applications have been pending for 75 days or more may continue 
calling the National Customer Service Center (NCSC) to request priority 
processing. In practice, as noted above, these policies result in the 
adjudication of the vast majority of Applications for Employment 
Authorization within 90 days of filing. DHS anticipates that it will be 
unable to adjudicate applications within 90 days in only a small 
percentage of cases, including those involving delays in security 
processes.
---------------------------------------------------------------------------

    \86\ See USCIS current processing times at https://egov.uscis.gov/cris/processTimesDisplayInit.do.
---------------------------------------------------------------------------

    DHS welcomes public comment on all aspects of this proposal, 
including alternate suggestions for regulatory amendments to the 90-day 
processing timeframe and interim employment authorization provisions 
not already discussed that address customer service, national security, 
and identity verification considerations that USCIS must fulfill as 
part of its core mission within DHS.
3. Conforming and Technical Amendments
    Finally, DHS proposes to make conforming and technical amendments 
to its regulations in light of the changes described above. The 
proposed rule first

[[Page 81930]]

would amend DHS regulations concerning individuals applying for 
adjustment of status under the Haitian Refugee Immigrant Fairness Act 
of 1998 (HRIFA), Public Law 105-277, div. A, title IX, sections 901-
904, 112 Stat. 2681-538 to 542 (codified as amended at 8 U.S.C. 1255 
note (2006)). These regulations currently provide that interim 
employment authorization is accorded upon expiration of a 180-day 
waiting period or 90 days from the date the Application for Employment 
Authorization is filed, whichever comes later. See 8 CFR 245.15(n)(2). 
Consistent with the proposed changes to 8 CFR 274a.13(d) discussed 
above, DHS is proposing to delete from the regulatory text at 8 CFR 
245.15(n)(2) both: (1) The cross-reference to 8 CFR 274a.13(d), and (2) 
the term ``interim'' modifying employment authorization. See proposed 8 
CFR 245.15(n)(2). Pursuant to these changes, DHS would be required to 
issue an EAD, rather than an interim EAD, within the timeframes 
currently provided in 8 CFR 245.15(n)(2). DHS also proposes making 
technical amendments to 8 CFR 245.15(n)(2) by replacing specific 
references to the ``Director of the Nebraska Service Center'' and 
``Service'' with broader references to USCIS and DHS. DHS believes 
these changes would not have wide impact, as the Department receives 
very few applications for adjustment of status based on HRIFA.\87\ 
Additionally, HRIFA-based applicants for adjustment of status would be 
eligible for the automatic 180-day extension of expiring EADs proposed 
in this rule, provided they file a timely request for renewal.
---------------------------------------------------------------------------

    \87\ See 2013 Yearbook of Immigration Statistics at p 18 
(available at http://www.dhs.gov/publication/yearbook-2013) showing 
a decrease in HRIFA adjustments from 2,451 in 2004 to 62 in 2013. 
During fiscal year 2015, USCIS adjudicated 8 HRIFA adjustment 
applications.
---------------------------------------------------------------------------

    Similarly, the proposed rule would amend DHS regulations at 8 CFR 
214.2(h)(9)(iv) concerning H-4 nonimmigrant spouses of H-1B 
nonimmigrant workers. This regulation currently allows H-4 spouses to 
file their applications for employment authorization concurrently with 
their underlying requests for nonimmigrant status, but tolls the 90-day 
processing timeframe at 8 CFR 274a.13(d) until the underlying benefit 
requests are approved. See 8 CFR 214.2(h)(9)(iv); see also 80 FR 10284, 
10297 (Feb. 25, 2015). Consistent with the changes described above, DHS 
is proposing to delete the sentence in 8 CFR 214.2(h)(9)(iv) containing 
the cross-reference to 8 CFR 274a.13(d), regarding the applicability of 
the 90-day period to the processing of EADs for certain H-4 dependent 
spouses. See proposed 8 CFR 214.2(h)(9)(iv). DHS is also proposing to 
move the regulatory text authorizing the concurrent filing of 
applications for employment authorization to 8 CFR 274a.13(a), and to 
apply that language to any class of employment-eligible aliens to the 
extent permitted by the application form instructions. This amendment 
to the regulations would codify current DHS policy applicable to 
several classes of foreign nationals, and provide clear authority to 
expand it to additional classes of foreign nationals.
    This rule also proposes a technical amendment that would merge the 
current text at paragraph (a) of 8 CFR 274a.13, with similar, 
repetitive text at paragraph (a)(1) of that section. The text at 
paragraph (a) currently describes the application requirement with 
respect to individuals authorized for employment incident to status 
listed in 8 CFR 274a.12(a)(3), (4), (6) through (8), (10) through (15), 
and (20). Text describing the application requirement is essentially 
repeated at paragraph (a)(1), but with respect to aliens listed in 8 
CFR 274a.12(c) (except asylum applicants at 8 CFR 274a.12(c)(8), which 
are covered by 8 CFR 274a.13(a)(2)). DHS has determined that listing 
the application requirements at both 8 CFR 274a.13(a) and (a)(1) is 
unnecessarily repetitive and potentially confusing. DHS proposes to 
describe the application requirement once in the introductory text at 8 
CFR 274a.13(a), which would apply to classes of individuals described 
at both 8 CFR 274a.12(a) and (c). The proposed text also would clarify 
that the same application requirement would apply to both individuals 
requesting only an EAD \88\ and those requesting both employment 
authorization and an EAD.\89\ Additionally, the proposed text would 
identify the employment authorization document that USCIS will issue 
based on a grant of such application, which is Form I-766.
---------------------------------------------------------------------------

    \88\ Individuals who would file an application for an EAD alone 
are those aliens in 8 CFR 274a.12(a) who are authorized for 
employment incident to status.
    \89\ Individuals who would file an application for both 
employment authorization and an EAD are those aliens listed in 8 CFR 
274a.12(c).
---------------------------------------------------------------------------

V. Statutory and Regulatory Requirements.

A. Executive Orders 12866 and 13563 (Regulatory Planning and Review)

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available alternatives, and if regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety 
effects, distributive impacts, and equity). Executive Order 13563 
emphasizes the importance of quantifying both costs and benefits, of 
reducing costs, of harmonizing rules, and of promoting flexibility. 
This rule has been designated a ``significant regulatory action'' that 
is economically significant, under section 3(f)(1) of Executive Order 
12866. Accordingly, the rule has been reviewed by the Office of 
Management and Budget.
    DHS is proposing to amend its regulations relating to certain 
employment-based immigrant and nonimmigrant visa programs. The proposed 
amendments interpret existing law as well as propose regulatory changes 
in order to provide various benefits to participants in those programs, 
including: Improved processes for U.S. employers seeking to sponsor and 
retain immigrant and nonimmigrant workers, greater stability and job 
flexibility for such workers, and increased transparency and 
consistency in the application of agency policy related to affected 
classifications. Many of these changes are primarily aimed at improving 
the ability of U.S. employers to retain high-skilled workers who are 
beneficiaries of approved employment-based immigrant visa petitions and 
are waiting to become lawful permanent residents (LPRs), while 
increasing the ability of such workers to seek promotions, accept 
lateral positions with current employers, change employers, or pursue 
other employment options.
    First, DHS proposes to amend its regulations consistent with 
certain worker portability and other provisions in the American 
Competitiveness in the Twenty-first Century Act of 2000 (AC21), as 
amended, as well as the American Competitiveness and Workforce 
Improvement Act of 1998 (ACWIA). These proposed amendments would 
clarify and improve longstanding agency policies and procedures, 
previously articulated in agency memoranda and precedent decisions. 
These proposed amendments would also implement sections of AC21 and 
ACWIA relating to certain foreign workers, specifically sections on 
workers who have been sponsored for LPR status by their employers. In 
so doing, the proposed rule would provide a primary repository of 
governing rules for the regulated community and enhance consistency 
among agency adjudicators. In addition, the proposed rule would clarify 
several interpretive questions raised by AC21 and ACWIA.

[[Page 81931]]

    Second, and consistent with existing DHS authorities and the goals 
of AC21 and ACWIA, DHS proposes to amend its regulations governing 
certain employment-based immigrant and nonimmigrant visa programs to 
provide additional stability and flexibility to employers and workers 
in those programs. The proposed rule would, among other things: Improve 
portability for certain beneficiaries of approved employment-based 
immigrant visa petitions by limiting the grounds for automatic 
revocation of petition approval; enhance job portability for such 
beneficiaries by improving their ability to retain their priority dates 
for use with subsequently approved employment-based immigrant visa 
petitions; establish or extend grace periods for certain high-skilled 
nonimmigrant workers so that they may more easily maintain their 
nonimmigrant status when changing employment opportunities or preparing 
for departure; and provide additional stability and flexibility to 
certain high-skilled workers by allowing those who are working in the 
United States in certain nonimmigrant statuses, are the beneficiaries 
of approved employment-based immigrant visa petitions, are subject to 
immigrant visa backlogs, and demonstrate compelling circumstances to 
effectively apply for independent employment authorization for a 
limited period. These and other proposed changes would provide much 
needed flexibility to the beneficiaries of employment-based immigrant 
visa petitions, as well as the U.S. employers who employ and sponsor 
them for permanent residence. In addition, these changes will provide 
greater stability and predictability for U.S. employers and avoid 
potential disruptions to ongoing business operations in the United 
States.
    Finally, consistent with providing additional certainty and 
stability to certain employment-authorized individuals and their U.S. 
employers, DHS is also proposing changes to its regulations governing 
the processing of applications for employment authorization to minimize 
the risk of any gaps in such authorization. These changes would provide 
for the automatic extension of the validity of certain Employment 
Authorization Documents (EADs or Form I-766) for an interim period upon 
the timely filing of an application to renew such documents. At the 
same time, in light of national security and fraud concerns, DHS is 
proposing to remove regulations that provide a 90-day processing 
timeline for EAD applications and that require the issuance of interim 
EADs if processing extends beyond the 90-day mark.
    Table 1, below, provides a more detailed summary of the proposed 
provisions and their impacts.

               Table 1--Summary of Provisions and Impacts
------------------------------------------------------------------------
                                                     Expected impact of
         Provisions                  Purpose            proposed rule
------------------------------------------------------------------------
Priority Date...............  Clarifies priority    Quantitative:
                               date when a labor     None.
                               certification is
                               not required by INA
                               203(b).
                                                    Qualitative:
                                                     Removes
                                                     ambiguity and sets
                                                     consistent priority
                                                     dates for affected
                                                     petitioners and
                                                     beneficiaries.
Priority Date Retention.....  Revises regulation    Quantitative:
                               so that the           None.
                               priority date
                               attached to an
                               employment-based
                               immigrant visa
                               petition is only
                               lost when: USCIS
                               revokes approval of
                               the petition for
                               error, fraud or
                               willful
                               misrepresentation
                               of a material fact,
                               or upon revocation
                               or invalidation of
                               the labor
                               certification
                               accompanying the
                               petition.
                                                    Qualitative:
                                                     Results in
                                                     administrative
                                                     efficiency and
                                                     predictability by
                                                     explicitly listing
                                                     when priority dates
                                                     are lost as these
                                                     revoked petition
                                                     approvals cannot be
                                                     used as a basis for
                                                     an immigrant visa.
Employment-Based Immigrant    Incorporates          Quantitative:
 Visa Petition Portability     statutory            Petitioners--
 Under 204(j).                 portability           Opportunity
                               provisions into       costs to
                               regulation.           petitioners for 1
                                                     year range from
                                                     $128,126 to
                                                     $4,678,956.
                                                    DHS/USCIS--
                                                     Neutral
                                                     because the
                                                     proposed
                                                     supplementary form
                                                     to the application
                                                     for adjustment of
                                                     status to permanent
                                                     residence will
                                                     formalize the
                                                     process for USCIS
                                                     requests for
                                                     evidence of
                                                     compliance with
                                                     section 204(j)
                                                     porting.
                                                    Qualitative:
                                                    Applicants/
                                                     Petitioners--
                                                     Provides
                                                     stability and job
                                                     flexibility to
                                                     certain individuals
                                                     with approved
                                                     employment-based
                                                     immigrant visas;
                                                     Clarifies
                                                     the definition of
                                                     ``same or similar
                                                     occupational
                                                     classifications``;
                                                     Allows
                                                     certain foreign
                                                     workers to advance
                                                     and progress in
                                                     their careers;
                                                     Potential
                                                     increased employee
                                                     replacement costs
                                                     for employers.
                                                    DHS/USCIS--
                                                    
                                                     Administrative
                                                     efficiency;
                                                    
                                                     Standardized and
                                                     streamlined
                                                     process.

[[Page 81932]]

 
Employment Authorization for  Proposes provisions   Quantitative: Total
 Certain Nonimmigrants Based   allowing certain      costs over 10-year
 on Compelling Circumstances.  nonimmigrant          period to
                               principal             applicants are:
                               beneficiaries, and    $553.2
                               their dependent       million for
                               spouses and           undiscounted costs.
                               children, to apply    $489.5
                               for unrestricted      million at a 3%
                               employment            discounted rate.
                               authorization if      $423.2
                               the principal         million at a 7%
                               beneficiary has an    discounted rate.
                               approved EB-1, EB-
                               2, or EB-3
                               immigrant visa
                               petition while
                               waiting for his/her
                               immigrant visa to
                               become available.
                               Applicants must
                               demonstrate
                               compelling
                               circumstances
                               justifying an
                               independent grant
                               of employment
                               authorization.
                                                    Qualitative:
                                                    Applicants--
                                                     Provides
                                                     ability for
                                                     nonimmigrants who
                                                     have been sponsored
                                                     for LPR status to
                                                     change jobs or
                                                     employers when
                                                     compelling
                                                     circumstances
                                                     arise;
                                                    
                                                     Incentivizes such
                                                     skilled
                                                     nonimmigrant
                                                     workers
                                                     contributing to the
                                                     economy to continue
                                                     seeking LPR status;
                                                    
                                                     Nonimmigrant
                                                     principal workers
                                                     who take advantage
                                                     of the unrestricted
                                                     EAD would abandon
                                                     their current
                                                     nonimmigrant status
                                                     and not be able to
                                                     adjust to LPR
                                                     status in the
                                                     United States.
                                                     Consular processing
                                                     imposes potentially
                                                     significant costs,
                                                     risk and
                                                     uncertainty for
                                                     individuals and
                                                     their families as
                                                     well.
                                                    Dependents--
                                                     Allows them
                                                     to enter labor
                                                     market earlier and
                                                     can contribute to
                                                     household income.
90-Day Processing Time for    Eliminates            Quantitative:
 Employment Authorization      regulatory            None.
 Applications.                 requirement for 90-
                               day adjudication
                               timeframe and
                               issuance of interim-
                               EADs. Proposes an
                               automatic extension
                               of EADs for up to
                               180 days for
                               certain workers
                               filing renewal
                               requests.
                                                    Qualitative:
                                                    Applicants--
                                                     Removing a
                                                     regulatory
                                                     timeframe and
                                                     moving to one
                                                     governed by
                                                     processing goals
                                                     could potentially
                                                     lead to longer
                                                     processing times
                                                     whenever the agency
                                                     is faced with
                                                     higher than
                                                     expected filing
                                                     volumes. If such a
                                                     situation were to
                                                     occur, this could
                                                     lead to potential
                                                     delays in work
                                                     employment start
                                                     dates for first-
                                                     time EAD applicants
                                                     until approval is
                                                     obtained. However,
                                                     USCIS believes such
                                                     scenarios would be
                                                     rare and mitigated
                                                     by the auto
                                                     extension provision
                                                     for renewal
                                                     applications which
                                                     would allow the
                                                     movement of
                                                     resources in such
                                                     situations;
                                                     Providing
                                                     the automatic
                                                     continuing
                                                     authorization for
                                                     up to 180 days for
                                                     certain renewal
                                                     applicants could
                                                     lead to less
                                                     turnover costs for
                                                     U.S. employers.
                                                    DHS/USCIS--
                                                     Streamlines
                                                     the application and
                                                     card issuance
                                                     processes;
                                                     Enhances
                                                     the ability to
                                                     ensure all national
                                                     security
                                                     verification checks
                                                     are completed;
                                                     Reduces
                                                     agency duplication
                                                     efforts;
                                                     Reduces
                                                     opportunities for
                                                     fraud and better
                                                     accommodates
                                                     increased security
                                                     measures.
Automatic Revocation With     Revises regulations   Quantitative:
 Respect to Approved           so that a petition    None.
 Employment-Based Immigrant    may continue to
 Visa Petitions.               remain valid,
                               despite withdrawal
                               by the employer or
                               termination of the
                               employer's business
                               after 180 days or
                               more of approval.
                                                    Qualitative:
                                                     Beneficiary
                                                     retains priority
                                                     date, has porting
                                                     ability under INA
                                                     204(j), or AC21
                                                     sections 104 (c)
                                                     and (b), and may be
                                                     eligible for the
                                                     new unrestricted
                                                     compelling
                                                     circumstances EAD.
Period of Admission for       Nonimmigrants in      Quantitative:
 Certain Nonimmigrant          certain high-         None.
 Classifications.              skilled,
                               nonimmigrant
                               classifications
                               would be granted a
                               grace period of up
                               to 10 days before
                               and after their
                               validity period and
                               a one-time grace
                               period, upon
                               cessation of
                               employment, of up
                               to 60 days or until
                               the end of their
                               authorized validity
                               period, whichever
                               is shorter.

[[Page 81933]]

 
                                                    Qualitative:
                                                     Nonimmigrant Visa
                                                     Holders--
                                                     Assists the
                                                     beneficiary in
                                                     getting
                                                     sufficiently
                                                     settled such that
                                                     they are
                                                     immediately able to
                                                     begin working upon
                                                     the start of their
                                                     petition validity
                                                     period;
                                                     Provides
                                                     time necessary to
                                                     wrap up affairs to
                                                     depart the country;
                                                     Would not
                                                     have to enter into
                                                     non-status period
                                                     or take other
                                                     actions to extend,
                                                     change, or
                                                     otherwise maintain
                                                     lawful status after
                                                     the period of
                                                     authorized
                                                     employment ends in
                                                     order to wrap up
                                                     affairs to respond
                                                     to sudden or
                                                     unexpected changes
                                                     related to their
                                                     employment, or to
                                                     seek a change of
                                                     status to different
                                                     nonimmigrant
                                                     classification.
Portability of H-1B Status H- Updates, improves,    Quantitative:
 1B Licensing Requirements     and clarifies DHS     None.
 Calculating the H-1B          regulations
 Admission Period Exemptions   consistent with
 Due to Lengthy Adjudication   policy guidance.
 Delays Per Country
 Limitation Exemptions
 Employer Debarment and H-1B
 Whistleblower Provisions.
                                                    Qualitative:
                                                     Formalizes
                                                     existing DHS policy
                                                     in the regulations,
                                                     which will give the
                                                     public access to
                                                     existing policy in
                                                     one location.
Exemptions to the H-1B        Codifies definition   Quantitative:
 Numerical Cap and Revised     of institution of     None.
 Definition of ``Related and   higher education
 Affiliated Nonprofit          and adds a broader
 Entity'' in the ACWIA Fee     definition of
 Context.                      related or
                               affiliated
                               nonprofit entity.
                               Also, revises the
                               definition of
                               related or
                               affiliated
                               nonprofit entity
                               for purposes of the
                               ACWIA fee to
                               conform to the new
                               proposed definition
                               of the same term
                               for H-1B numerical
                               cap exemption.
                                                    Qualitative:
                                                     Expands the
                                                     numbers of
                                                     petitioners that
                                                     are cap exempt and
                                                     thus allows greater
                                                     access by certain
                                                     employers to H-1B
                                                     workers.
------------------------------------------------------------------------

    As required by OMB Circular A-4,\90\ Table 2 also presents the 
prepared accounting statement showing the expenditures associated with 
the provisions of these regulations. The main benefits of this proposed 
regulation are to improve processes for U.S. employers seeking to 
sponsor and retain immigrant and nonimmigrant workers, provide greater 
stability and job flexibility for such workers, and increase 
transparency and consistency in the application of agency policy 
related to affected classifications.
---------------------------------------------------------------------------

    \90\ OMB Circular A-4 is available at www.whitehouse.gov/sites/default/files/omb/assets/omb/circulars/a004/a-4.pdf.

                                      Table 2--OMB A-4 Accounting Statement
                                               [$ millions, 2015]
----------------------------------------------------------------------------------------------------------------
                                                                                                Source citation
            Category               Primary estimate    Minimum estimate    Maximum estimate     (RIA, preamble,
                                                                                                     etc.)
----------------------------------------------------------------------------------------------------------------
                                                    Benefits
----------------------------------------------------------------------------------------------------------------
Monetized Benefits..............  Not estimated.....  Not estimated.....  Not estimated.....  RIA.
Annualized quantified, but        0.................  0.................  0.................  RIA.
 unmonetized, benefits.
                                 ------------------------------------------------------------
Unquantified Benefits...........   Improves processes for U.S. employers seeking to sponsor   RIA.
                                    and retain immigrant and nonimmigrant workers, provides
                                    greater stability and job flexibility for such workers,
                                       and increases transparency and consistency in the
                                        application of agency policy related to affected
                                                        classifications.
----------------------------------------------------------------------------------------------------------------

[[Page 81934]]

 
                                                      Costs
----------------------------------------------------------------------------------------------------------------
Annualized monetized costs for    (7%) $62.2........  $60.7.............  $64.9.............  RIA.
 10 year period starting in 2016
 to 2025 (discount rate in
 parenthesis).
                                  (3%) $59.7........  $57.9.............  $62.1.............  RIA.
Annualized quantified, but        N/A...............  N/A...............  N/A...............  RIA.
 unmonetized, costs.
                                 ------------------------------------------------------------
Qualitative (unquantified) costs    Potential turnover cost due to enhanced job mobility of   RIA.
                                     beneficiaries of nonimmigrant and immigrant petitions.
----------------------------------------------------------------------------------------------------------------
                                                    Transfers
----------------------------------------------------------------------------------------------------------------
Annualized monetized transfers:   N/A...............  0.................  0.................  RIA.
 ``on budget''.
From whom to whom?..............  N/A...............  N/A...............  N/A...............  N/A.
                                 --------------------
Annualized monetized transfers:   N/A...............  0.................  0.................  RIA.
 ``off-budget''.
From whom to whom?..............  N/A...............  N/A...............  N/A...............  N/A.
                                 ------------------------------------------------------------
Miscellaneous Analyses/Category.                            Effects                           Source Citation
                                                                                               (RIA, preamble,
                                                                                               etc.).
Effects on state, local, and/or                              None                             RIA.
 tribal governments.
Effects on small businesses.....            No direct costs. Indirect effects only.           RIA.
Effects on wages................                             None                             None.
Effects on growth...............                             None                             None.
----------------------------------------------------------------------------------------------------------------

    DHS has prepared a full analysis according to Executive Orders 
12866 and 13563 which can be found by searching for RIN 1615-AC05 on 
regulations.gov.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996, Public Law 104-121 (March 29, 1996), requires Federal agencies to 
consider the potential impact of regulations on small entities during 
the development of their rules. The term ``small entities'' comprises 
small businesses, not-for-profit organizations that are not dominant in 
their fields, and governmental jurisdictions with populations of less 
than 50,000. An ``individual'' is not defined by the RFA as a small 
entity, and costs to an individual from a rule are not considered for 
RFA purposes. In addition, the courts have held that the RFA requires 
an agency to perform a regulatory flexibility analysis of small entity 
impacts only when a rule directly regulates small entities.\91\ 
Consequently, any indirect impacts from a rule to a small entity are 
not costs for RFA purposes.
---------------------------------------------------------------------------

    \91\ A Guide for Government Agencies How to Comply with the 
Regulatory Flexibility Act, May 2012 page 22. See Direct versus 
indirect impact discussion, https://www.sba.gov/sites/default/files/advocacy/rfaguide_0512_0.pdf.
---------------------------------------------------------------------------

    The changes proposed by DHS have direct impacts to individual 
beneficiaries of employment-based nonimmigrant and immigrant visa 
petitions. As individual beneficiaries of employment-based immigrant 
visa petitions are not defined as small entities, costs to these 
individuals are not considered as RFA costs. However, due to the fact 
that the petitions are filed by a sponsoring employer, this rule has 
indirect effects on employers. The original sponsoring employer that 
files the petition on behalf of an employee will incur employee 
turnover related costs as those employees port to the same or a similar 
occupation with another employer. Therefore, DHS has chosen to examine 
the indirect impact of this proposed rule on small entities as well. 
The analysis of the indirect impacts of these proposed changes on small 
entities follows.
1. Initial Regulatory Flexibility Analysis
    Small entities primarily affected by this rule that could incur 
additional indirect costs are those that file and pay fees for certain 
immigration benefit petitions, including Form I-140, Immigrant Petition 
for Alien Worker. DHS conducted a statistically valid sample analysis 
of these petition types to determine the number of small entities 
indirectly impacted by this rule. While DHS acknowledges that the 
changes engendered by these proposed rules would directly impact 
individuals who are beneficiaries of employment-based immigrant visa 
petitions, which are not small entities as defined by the RFA, DHS 
believes that the actions taken by such individuals as a result of 
these proposals will have immediate indirect impacts on U.S. employers. 
Employers will be indirectly impacted by employee turnover-related 
costs as beneficiaries of employment-based immigrant visa petitions 
take advantage of these proposals. Therefore, DHS is choosing to 
discuss these indirect impacts in this initial regulatory flexibility 
analysis to aid the public in commenting on the impact of the proposed 
requirements.
     In particular, DHS requests information and data to gain a 
better understanding of the potential impact of this rule on small 
entities. Specifically, DHS requests information on: The numbers of 
small entities that have filed immigrant visa petitions for high-
skilled workers who are waiting to adjust status, and the potential 
costs to such small entities associated with employee turnover 
resulting from employees who port;

[[Page 81935]]

     the potential costs to employers that are small entities 
associated with employee turnover if a sponsored nonimmigrant worker 
pursues the option for unrestricted employment authorization based on 
compelling circumstances; and
     the number of small entities that would qualify for the 
proposed exemptions of the ACWIA fee when petitioning for H-1B 
nonimmigrant workers.
    a. A description of the reasons why the action by the agency is 
being considered.
    The purpose of this action, in part, is to amend regulations 
affecting certain employment-based immigrant and nonimmigrant 
classifications in order for DHS regulations to conform to provisions 
of AC21 and ACWIA. The proposed rule also seeks to permit greater job 
flexibility, mobility and stability to beneficiaries of employment-
based nonimmigrant and immigrant visa petitions, especially when faced 
with long waits for immigrant visas. In many instances, the need for 
these individuals' employment has been demonstrated through the labor 
certification process. In most cases, before an employment-based 
immigrant visa petition can be approved, the DOL has certified that 
there are no U.S. workers who are ready, willing and available to fill 
those positions in the area of intended employment. By increasing 
flexibility and mobility, the worker is more likely to remain in the 
United States and help fill the demonstrated need for his or her 
services.
    b. A succinct statement of the objectives of, and legal basis for, 
the proposed rule.
    DHS objectives and legal authority for this proposed rule are 
discussed in the preamble.
    c. A description and, where feasible, an estimate of the number of 
small entities to which the proposed changes would apply.
    DHS conducted a statistically valid sample analysis of employment-
based immigrant visa petitions to determine the maximum potential 
number of small entities indirectly impacted by this rule when a high-
skilled worker who has an approved employment-based immigrant visa 
petition and a pending adjustment of status application for 180 days or 
more ports to another employer. DHS utilized a subscription-based 
online database of U.S. entities, Hoovers Online, as well as two other 
open-access, free databases of public and private entities, Manta and 
Cortera, to determine the North American Industry Classification System 
(NAICS) code, revenue, and employee count for each entity.\92\ In order 
to determine a business' size, DHS first classified each entity by its 
NAICS code, and then used SBA guidelines to note the requisite revenue 
or employee count threshold for each entity. Some entities were 
classified as small based on their annual revenue and some by number of 
employees.
---------------------------------------------------------------------------

    \92\ The Hoovers Web site can be found at http://www.hoovers.com/; The Manta Web site can be found at http://www.manta.com/; and the Cortera Web site can be found at https://www.cortera.com/.
---------------------------------------------------------------------------

    Using FY 2013 data on actual filings of employment-based immigrant 
visa petitions, DHS collected internal data for each filing 
organization. Each entity may make multiple filings. For instance, 
there were 63,953 employment-based immigrant visa petitions filed, but 
only 24,912 unique entities that filed petitions. DHS devised a 
methodology to conduct the small entity analysis based on a 
representative, random sample of the potentially impacted population. 
To achieve a 95 percent confidence level and a 5 percent confidence 
interval on a population of 24,912 entities, DHS used the standard 
statistical formula to determine that a minimum sample size of 385 
entities was necessary.\93\ DHS created a sample size 15 percent 
greater than the 385 minimum necessary in order to increase the 
likelihood that our matches would meet or exceed the minimum required 
sample. Of the 443 entities sampled, 344 instances resulted in entities 
defined as small. Of the 344 small entities, 185 entities were 
classified as small by revenue or number of employees. The remaining 
159 entities were classified as small because information was not found 
(either no petitioner name was found or no information was found in the 
databases).
---------------------------------------------------------------------------

    \93\ See https://www.qualtrics.com/blog/determining-sample-size/.

Table 1--Summary Statistics and Results of Small Entity Analysis of Form
                             I-140 Petitions
------------------------------------------------------------------------
                                                           Proportion of
                Parameter                    Quantity         sample
                                                             (percent)
------------------------------------------------------------------------
Population--petitions...................          63,953  ..............
Population--unique entities.............          24,912  ..............
Minimum Required Sample.................             385  ..............
Selected Sample.........................             443           100.0
Entities Classified as ``Not Small''
    by revenue..........................              73            16.5
    by number of employees..............              26             5.9
Entities Classified as ``Small''
    by revenue..........................             145            32.7
    by number of employees..............              40             9.0
    because no petitioner name found....             109            24.6
    because no information found in                   50            11.3
     databases..........................
                                         -------------------------------
        Total Number of Small Entities..             344            77.7
------------------------------------------------------------------------
Source: USCIS analysis.

    d. A description of the projected reporting, recordkeeping, and 
other compliance requirements of the proposed rule, including an 
estimate of the classes of small entities that will be subject to the 
requirement and the types of professional skills.
    The proposed amendments in this rule do not place direct 
requirements on small entities that petition for workers. However, if 
the principal beneficiaries of employment-based immigrant visa 
petitions take advantage of the flexibility provisions proposed herein 
(including porting to a new sponsoring

[[Page 81936]]

employer or pursuing the unrestricted employment authorization in cases 
involving compelling circumstances), there could be increased turnover 
costs (employee replacement costs) for U.S. entities sponsoring the 
employment of those beneficiaries, including costs of petitioning for 
new employees. While DHS has estimated 29,166 individuals who are 
eligible to port to a new employer under section 204(j) of the INA, the 
Department was unable to predict how many will actually do so. As 
mentioned earlier in the Executive Orders 12866 and 13563 analysis, a 
range of opportunity costs of time to petitioners who prepare 
Supplement J ($43.93 for a human resources specialist, $93.69 for an 
in-house lawyer, or $160.43 for an outsourced lawyer) are anticipated 
depending on the total numbers of individuals who port. However, DHS is 
currently unable to determine the numbers of small entities who take on 
immigrant sponsorship of high-skilled workers who are waiting to adjust 
status from the original sponsoring employer. The estimates presented 
also do not represent employee turnover costs to the original 
sponsoring employer, but only represent paperwork costs. Similarly, DHS 
is unable to predict the volume of principal beneficiaries of 
employment-based immigrant visa petitions who will pursue the option 
for unrestricted employment authorization based on compelling 
circumstances.
    The proposed amendments relating to the H-1B numerical cap 
exemptions may impact some small entities by allowing them to qualify 
for exemptions of the ACWIA fee when petitioning for H-1B nonimmigrant 
workers. As DHS cannot predict the numbers of entities these proposed 
amendments would impact at this time, the exact impact on small 
entities is not clear, though some positive impact should be 
anticipated.
    e. An identification of all relevant Federal rules, to the extent 
practical, that may duplicate, overlap, or conflict with the proposed 
rule.
    DHS is unaware of any duplicative, overlapping, or conflicting 
Federal rules, but invites any comment and information regarding any 
such rules.
    f. Description of any significant alternatives to the proposed rule 
that accomplish the stated objectives of applicable statutes and that 
minimize any significant economic impact of the proposed rule on small 
entities.
    This rule does not impose direct costs on small entities. Rather, 
this rule imposes indirect cost on small entities because the proposed 
provisions would affect beneficiaries of employment-based immigrant 
visa petitions. If those beneficiaries take actions or steps in line 
with the proposals that provide greater flexibility and job mobility, 
then there would be an immediate indirect impact--an externality--to 
the current sponsoring U.S. employers. DHS considered whether to 
exclude from the flexibility and job mobility provisions those 
beneficiaries who were sponsored by U.S. employers that were considered 
small. However, because DHS so limited the eligibility for unrestricted 
employment authorization to beneficiaries who are able to demonstrate 
compelling circumstances, and restricted the portability provisions to 
those seeking employment within the same or similar occupational 
classification(s), DHS did not feel it was necessary to pursue this 
proposal. There are no other alternatives that DHS considered that 
would further limit or shield small entities from the potential of 
negative externalities and that would still accomplish the goals of 
this regulation. To reiterate, the goals of this regulation include 
providing increased flexibility and normal job progression for 
beneficiaries of approved employment-based immigrant visa petitions. To 
incorporate alternatives that would limit such mobility for 
beneficiaries that are employed or sponsored by small entities would be 
counterproductive to the goals of this rule. DHS welcomes public 
comments on significant alternatives to the proposed rule that would 
minimize significant economic impact to small entities.

C. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandate Reform Act of 1995 (UMRA) is intended, among 
other things, to curb the practice of imposing unfunded Federal 
mandates on State, local, and tribal governments. Title II of UMRA 
requires each Federal agency to prepare a written statement assessing 
the effects of any Federal mandate in a proposed or final agency rule 
that may result in a $100 million or more expenditure (adjusted 
annually for inflation) in any one year by State, local, and tribal 
governments, in the aggregate, or by the private sector. The value 
equivalent of $100,000,000 in 1995 adjusted for inflation to 2014 
levels by the Consumer Price Index for All Urban Consumers is 
$155,000,000.
    Although this rule does exceed the $100 million expenditure 
threshold in the first year of implementation (adjusted for inflation), 
this rulemaking does not contain such a mandate. Providing job 
flexibility through unrestricted employment authorization to a limited 
number of employment-authorized nonimmigrants in compelling 
circumstances is not a required immigration benefit, nor will use of 
the proposed flexibilities result in any expenditures by State, local, 
and tribal governments. The requirements of Title II of UMRA, 
therefore, do not apply, and DHS has not prepared a statement under 
UMRA.

D. Small Business Regulatory Enforcement Fairness Act of 1996

    This proposed rule is a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Act of 1996. This rule will 
result in an annual effect on the economy of more than $100 million in 
the first year only. For each subsequent year, the annual effect on the 
economy will remain under $100 million. As small businesses may be 
impacted under this proposed regulation, DHS has prepared a Regulatory 
Flexibility Act (RFA) analysis. The RFA analysis can be found with the 
analysis prepared under Executive Orders 12866 and 13563 on 
regulations.gov.

E. Executive Order 13132 (Federalism)

    This rule will not have substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

F. Executive Order 12988 (Civil Justice Reform)

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

G. Paperwork Reduction Act

    Under the Paperwork Reduction Act (PRA) of 1995, Public Law 104-13, 
Departments are required to submit to the Office of Management and 
Budget (OMB), for review and approval, any reporting requirements 
inherent in a rule. This rule proposes revisions to the following 
information collections:
    1. The Application for Employment Authorization, Form I-765; and 
Form I-765 Work Sheet, Form I-765WS, OMB Control Number 1615-0040. 
Specifically, USCIS is revising this collection by revising the 
instructions to Form I-765 to include information for the newly 
proposed group of applicants (beneficiaries of an approved Form I-140 
who are in the United States in E-

[[Page 81937]]

3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status, who are the 
beneficiaries of an approved employment-based immigrant visa petition, 
who do not have immigrant visas immediately available to them, and who 
demonstrate compelling circumstances justifying a grant of employment 
authorization) eligible to apply for employment authorization under 
proposed section 8 CFR 274a.12(c)(35). Their dependent spouses and 
children who are present in the United States in nonimmigrant status 
will also be eligible to obtain employment authorization under proposed 
section 8 CFR 274a.12(c)(36), provided that the principal alien has 
been granted employment authorization. USCIS is also proposing to amend 
Form I-765 to include Yes/No questions requiring these applicants to 
disclose certain criminal convictions. USCIS estimates an upper-bound 
average of 155,067 respondents will request employment authorization as 
a result of the changes proposed by this rule in the first 2 years. 
This average estimate is derived from a maximum estimate of 257,039 new 
respondents who may file applications for employment authorization 
documents in year 1 and a maximum estimate of 53,095 respondents in 
year 2. USCIS averaged this estimate for new I-765 respondents over a 
2-year period of time based on its request seeking a 2-year approval of 
the form and its instructions from OMB.
    2. USCIS is revising the form and its instructions and the estimate 
of total burden hours has increased due to the addition of this new 
population of Form I-765 filers, and the increase of burden hours 
associated with the collection of biometrics from these applicants.
    3. The Immigrant Petition for Alien Worker, Form I-140; OMB Control 
Number 1615-0015. Specifically, USCIS is revising this information 
collection to remove ambiguity regarding whether information about the 
principal beneficiary's dependent family members should be entered on 
Form I-140, by revising the word ``requests'' to ``requires'' for 
clarification in the form instructions. USCIS is also revising the 
instructions to remove the terms ``in duplicate'' in the second 
paragraph under the labor certification section of the instructions 
because USCIS no longer requires uncertified Employment and Training 
Administration (ETA) Forms 9089 to be submitted in duplicate. There is 
no change in the data being captured on the information collection 
instrument, but there is a change to the estimated annual burden hours 
as a result of USCIS' revised estimate of the number of respondents for 
this collection of information.
    4. The Petition for Nonimmigrant Worker, Form I-129, OMB Control 
Number 1615-0009. USCIS is making revisions to Form I-129, specifically 
the H-1B Data Collection and Filing Fee Exemption Supplement and the 
accompanying instructions, to correspond with revisions to the 
regulatory definition of ``related or affiliated nonprofit entities'' 
for the purposes of determining whether the petitioner is exempt from: 
(1) Payment of the $750/$1,500 fee associated with the American 
Competitiveness and Workforce Improvement Act (ACWIA) and (2) the 
statutory numerical limitation on H-1B visas (also known as the H-1B 
cap). USCIS does not estimate that new respondents would file petitions 
for alien workers as a result of the changes proposed by this rule.
    5. The Application to Register Permanent Residence or Adjust 
Status, Form I-485, including new Supplement J, ``Confirmation of Bona 
Fide Job Offer or Request for Job Portability under INA Section 
204(J),'' OMB Control Number 1615-0023. Specifically, USCIS is creating 
a new Supplement J to Form I-485 to allow the adjustment applicant 
requesting portability under section 204(j) of the INA, and the U.S. 
employer offering the applicant a new permanent job offer, to provide 
formal attestations regarding important aspects of the job offer. 
Providing such attestations is an essential step to establish 
eligibility for adjustment of status in any employment-based immigrant 
visa classification requiring a job offer, regardless of whether the 
applicant is making a portability request under section 204(j) or is 
seeking to adjust status based upon the same job that was offered in 
the underlying immigrant visa petition. Through this new supplement, 
USCIS will collect required information from U.S. employers offering a 
new permanent job offer to a specific worker under section 204(j). 
Moreover, Supplement J will also be used by applicants who are not 
porting pursuant to section 204(j) to confirm that the original job 
offer described in the Form I-140 petition is still bona fide and 
available to the applicant at the time the applicant files Form I-485. 
Supplement J will replace the current Form I-485 initial evidence 
requirement that an applicant must submit a letter on the letterhead of 
the petitioning U.S. employer that confirms that the job offer on which 
the Form I-140 petition is based is still available to the applicant.
    This supplement will also serve as an important anti-fraud measure, 
and it will allow USCIS to validate employers extending new permanent 
job offers to individuals under section 204(j). USCIS estimates that 
approximately 29,166 new respondents would file Supplement J as a 
result of the changes proposed by the rule.
    Additionally, USCIS is revising the instructions to Form I-485 to 
reflect the implementation of Supplement J. The Form I-485 instructions 
are also being revised to clarify that eligible applicants will need to 
file Supplement J to request job portability under section 204(j) of 
the INA. There is no change to the estimated annual burden hours as a 
result of this revision as a result of the changes proposed in this 
rule.
    DHS is requesting comments on the proposed revisions to these 
information collections until February 29, 2016.
    In accordance with the PRA, information collection notices are 
published in the Federal Register to obtain comments regarding the 
nature of the information collection, the categories of respondents, 
the estimated burden (i.e., the time, effort, and resources used by the 
respondents to respond), the estimated cost to the respondent, and the 
actual information collection instruments. When submitting comments on 
this information collection, your comments should address one or more 
of the following four points:
    (1) Evaluate whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimate of the burden of 
the proposed collection of information, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, e.g., permitting electronic 
submission of responses.
    Overview of this information collection:
    (1) Type of Information Collection: Revision of a Currently 
Approved Collection.
    (2) Title of the Forms/Collections:
     Application for Employment Authorization Document;
     Form I-765 Work Sheet;
     Immigrant Petition for Alien Worker;

[[Page 81938]]

     Petition for Nonimmigrant Worker;
     Application to Register Permanent Residence or Adjust 
Status.
    (3) Agency form number, if any, and the applicable component of the 
DHS sponsoring the collection: Forms I-765/I-765WS, I-140, I-129 and I-
485; USCIS.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract:
    Form I-765: Primary: Individuals or households: This form was 
developed for individuals to request employment authorization and 
evidence of that employment authorization. USCIS is revising this form 
to add a new class of workers eligible to apply for employment 
authorization as the beneficiary of a valid immigrant petition for 
classification under sections 203(b)(1), 203(b)(2) or 203(b)(3) of the 
INA. Eligible applicants must be physically present in the United 
States in E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status, and must 
demonstrate that they face compelling circumstances while they wait for 
their immigrant visas to become available. Dependent spouses and 
children who are present in the United States in nonimmigrant status 
are also eligible to apply provided that the principal has been granted 
employment authorization. Supporting documentation demonstrating 
eligibility must be filed with the application. The form instructions 
list examples of relevant documentation.
    Form I-140: Primary: Business or other for-profit organizations, as 
well as not-for profit organizations. USCIS will use the information 
furnished on this information collection to classify individuals under 
sections 203(b)(1), 203(b)(2) or 203(b)(3) of the INA.
    Form I-129: Primary: Business: This form is used by an employer to 
petition for workers to come to the U.S. temporarily to perform 
services, labor, and training or to request extensions of stay or 
changes in nonimmigrant status for nonimmigrant workers. USCIS is 
revising Form I-129, specifically the H-1B Data Collection and Filing 
Fee Exemption Supplement, and the accompanying instructions, to 
correspond with revisions to the regulatory definition of ``related or 
affiliated nonprofit entities'' for the purposes of determining whether 
the petitioner is exempt from: (1) Payment of the $750/$1,500 fee 
associated with the American Competitiveness and Workforce Improvement 
Act (ACWIA), and (2) the statutory numerical limitation on H-1B visas 
(also known as the cap).
    Form I-485: Primary: Individuals or households: The information 
collected is used to determine eligibility to adjust status under 
section 245 of the INA. The instructions to Form I-485, Application to 
Register Permanent Residence or Adjust Status, are being revised to 
reflect the implementation of Form I-485 Supplement J, Confirmation of 
Bona Fide Job Offer or Request for Job Portability under INA Section 
204(j) (Supplement J). Supplement J will be used by individuals 
applying for adjustment of status to lawful permanent resident on the 
basis of being the principal beneficiary of an approved Form I-140, 
Immigrant Petition for Alien Worker. Applicants will use Supplement J 
to confirm that the job offer described in the Form I-140 petition is 
still bona fide and available to the applicant at the time the 
applicant files Form I-485. Supplement J is replacing the current Form 
I-485 initial evidence requirement that an applicant must submit a 
letter on the letterhead of the petitioning employer which confirms 
that the job offer on which the Form I-140 petition is based is still 
available to the applicant. Applicants will also use Supplement J when 
requesting job portability pursuant to section 204(j) of the INA. 
Supplement J will provide a standardized procedure along with specific 
evidentiary requirements for all job portability requests submitted to 
USCIS.
    (5) An estimate of the total annual number of respondents and the 
amount of time estimated for an average respondent to respond:
     Form I-765/I-765WS:
    [cir] 4,618,099 responses related to Form I-765 at 3.42 hours per 
response;
    [cir] 437,070 responses related to Form I-765WS at .50 hours per 
response;
    [cir] 592,137 responses related to Biometrics services at 1.17 
hours; and
    [cir] 4,618,099 responses related to Passport-Style Photographs at 
.50 hours per response.
     Form I-140:
    [cir] 101,719 respondents at 1.5 hours per response.
     Form I-129:
    [cir] Form I-129--333,891 respondents at 2.34 hours;
    [cir] E-1/E-2 Classification to Form I-129--4,760 respondents at 
.67 hours;
    [cir] Trade Agreement Supplement to Form I-129--3,057 respondents 
at .67 hours;
    [cir] H Classification Supplement to Form I-129--255,872 
respondents at 2 hours;
    [cir] H-1B and H-1B1 Data Collection and Filing Fee Exemption 
Supplement--243,965 respondents at 1 hour;
    [cir] L Classification Supplement to Form I-129--37,831 respondents 
at 1.34 hours;
    [cir] O and P Classifications Supplement to Form I-129--22,710 
respondents at 1 hour;
    [cir] Q-1 Classification Supplement to Form I-129--155 respondents 
at .34 hours; and
    [cir] R-1 Classification Supplement to Form I-129--6,635 
respondents at 2.34 hours.
     Form I-485:
    [cir] 697,811 respondents at 6.25 hours per response;
    [cir] 697,811 respondents related to Biometrics services at 1.17 
hours.
    (6) An estimate of the total annual public burden (in hours) 
associated with these collections:
     Form I-765/I-765WS: 19,014,283.37 hours.
     Form I-140: 152,579 hours.
     Form I-129: 1,631,234 hours.
     Form I-485: 5,238,957 hours.
    (7) An estimate of the annual public burden (monetized) associated 
with these collections:
     Form I-765/I-765WS: $1,357,721,106
     Form I-140: $42,365,964.
     Form I-129: $73,751,280.
     Form I-485: $239,349,173.

List of Subjects

8 CFR Part 204

    Administrative practice and procedure, Adoption and foster care, 
Immigration, Reporting and recordkeeping requirements.

8 CFR Part 205

    Administrative practice and procedure, Immigration.

8 CFR Part 214

    Administrative practice and procedure, Aliens, Cultural exchange 
programs, Employment, Foreign officials, Health professions, Reporting 
and recordkeeping requirements, Students.

8 CFR Part 245

    Aliens, Immigration, Reporting and recordkeeping requirements.

8 CFR Part 274a

    Administrative practice and procedure, Aliens, Employment, 
Penalties, Reporting and recordkeeping requirements.
    Accordingly, DHS proposes to amend chapter I of title 8 of the Code 
of Federal Regulations as follows:

[[Page 81939]]

PART 204--IMMIGRANT PETITIONS

0
1. The authority citation for part 204 is revised to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1184, 
1186a, 1255, 1324a, 1641; 8 CFR part 2.

0
2. Section 204.5 is amended by:
0
a. Revising paragraph (d);
0
b. Revising paragraph (e);
0
c. Revising paragraph (n)(3);
0
d. Adding paragraph (p).
    The revisions and addition read as follows:


Sec.  204.5  Petitions for employment-based immigrants.

* * * * *
    (d) Priority date. The priority date of any petition filed for 
classification under section 203(b) of the Act which is accompanied by 
an individual labor certification from the Department of Labor shall be 
the date the labor certification application was accepted for 
processing by any office of the Department of Labor. The priority date 
of any petition filed for a classification under section 203(b) of the 
Act which does not require a labor certification from the Department of 
Labor shall be the date the completed, signed petition (including all 
initial evidence and the correct fee) is properly filed with USCIS. The 
priority date of any petition filed for classification under section 
203(b) of the Act which is accompanied by an application for Schedule A 
designation shall be the date the completed, signed petition (including 
all initial evidence and the correct fee) is properly filed with USCIS. 
The priority date of an alien who filed for classification as a special 
immigrant under section 203(b)(4) of the Act prior to October 1, 1991, 
and who is the beneficiary of an approved petition for special 
immigrant status after October 1, 1991, shall be the date the alien 
applied for an immigrant visa or adjustment of status.
    (e) Retention of section 203(b)(1), (2), or (3) priority date. (1) 
A petition approved on behalf of an alien under sections 203(b)(1), 
(2), or (3) of the Act accords the alien the priority date of the 
approved petition for any subsequently filed petition for any 
classification under sections 203(b)(1), (2), or (3) of the Act for 
which the alien may qualify. In the event that the alien is the 
beneficiary of multiple approved petitions under sections 203(b)(1), 
(2), or (3) of the Act, the alien shall be entitled to the earliest 
priority date.
    (2) The priority date of a petition may not be retained under 
paragraph (e)(1) of this section if at any time USCIS revokes the 
approval of the petition because of:
    (i) Fraud, or a willful misrepresentation of a material fact;
    (ii) Revocation by the Department of Labor of the approved 
permanent labor certification that accompanied the petition;
    (iii) Invalidation by USCIS or the Department of State of the 
permanent labor certification that accompanied the petition; or
    (iv) A determination by USCIS that petition approval was in error.
    (3) A denied petition will not establish a priority date.
    (4) A priority date is not transferable to another alien.
    (5) A petition filed under section 204(a)(1)(F) of the Act for an 
alien shall remain valid with respect to a new employment offer as 
determined by USCIS under section 204(j) of the Act and 8 CFR 245.25. 
An alien will continue to be afforded the priority date of such 
petition, if the requirements of paragraph (e) of this section are met.
* * * * *
    (n) * * *
    (3) Validity of approved petitions. Unless approval is revoked 
under section 203(g) or 205 of the Act, an employment-based petition is 
valid indefinitely.
* * * * *
    (p) Eligibility for employment authorization in compelling 
circumstances--(1) Eligibility of principal alien. An individual who is 
the principal beneficiary of an approved immigrant petition for 
classification under sections 203(b)(1), 203(b)(2) or 203(b)(3) of the 
Act may be eligible to receive employment authorization, upon 
application, if:
    (i) In the case of an initial request for employment authorization, 
the individual is in E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status 
at the time the application for employment authorization is filed;
    (ii) An immigrant visa is not immediately available to the 
principal beneficiary based on his or her priority date at the time the 
application for employment authorization is filed; and
    (iii) USCIS determines, as a matter of discretion, that the 
principal beneficiary demonstrates compelling circumstances that 
justify the issuance of employment authorization.
    (2) Eligibility of spouses and children. The family members, as 
described in section 203(d) of the Act, of a principal beneficiary, who 
are in nonimmigrant status at the time the principal beneficiary 
applies for employment authorization under paragraph (p)(1) of this 
section, are eligible to apply for employment authorization provided 
that the principal beneficiary has been granted employment 
authorization under paragraph (p) of this section and such employment 
authorization has not been terminated or revoked. Such family members 
may apply for employment authorization concurrently with the principal 
beneficiary, but cannot be granted employment authorization until the 
principal beneficiary is so authorized. The validity period of 
employment authorization granted to family members may not extend 
beyond the validity period of employment authorization granted to the 
principal beneficiary.
    (3) Subject to paragraph (p)(5) of this section, an alien may be 
eligible to receive renewal of employment authorization under paragraph 
(p) of this section, upon application, if:
    (i) He or she is the principal beneficiary of an approved immigrant 
petition for classification under sections 203(b)(1), 203(b)(2) or 
203(b)(3) of the Act and either:
    (A) USCIS determines, as a matter of discretion, that the principal 
beneficiary continues to demonstrate compelling circumstances that 
justify the issuance of employment authorization, or
    (B) The difference between the principal beneficiary's priority 
date and the date upon which immigrant visas are authorized for 
issuance for the principal beneficiary's preference category and 
country of chargeability is 1 year or less according to the current 
Department of State Visa Bulletin; or
    (ii) Is a family member, as described under paragraph (p)(2) of 
this section, of a principal beneficiary satisfying the requirements 
under paragraph (p)(3)(i) of this section, except that the family 
member need not be maintaining nonimmigrant status at the time the 
principal beneficiary applies for renewal employment authorization 
under paragraph (p) of this section.
    (4) Application for employment authorization. To request employment 
authorization, an eligible applicant described in paragraphs (p)(1) or 
(2) of this section must file an application for employment 
authorization, or a successor form, with USCIS, in accordance with 8 
CFR 274a.13(a) and the form instructions, including evidence of 
compelling circumstances. Such applicant is subject to the collection 
of his or her biometric information and the payment of any biometric 
services fee as provided in the form instructions. Employment 
authorization under this paragraph may be granted solely in 1-year 
increments.
    (5) Ineligibility for employment authorization. An alien is not 
eligible

[[Page 81940]]

for employment authorization, including renewal of employment 
authorization, under this paragraph in the following circumstances:
    (i) The individual has been convicted of any felony or two or more 
misdemeanors; or
    (ii) The principal beneficiary's priority date is more than 1 year 
beyond the date immigrant visas were authorized for issuance for the 
principal beneficiary's preference category and country of 
chargeability according to the Department of State Visa Bulletin 
current at the time the application for employment authorization, or 
successor form, is filed.

PART 205--REVOCATION OF APPROVAL OF PETITIONS

0
3. The authority citation for part 205 is revised to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1155, 1182, 
1324a, and 1186a.

0
4. Section 205.1 is amended by revising paragraphs (a)(3)(iii)(C) and 
(D) to read as follows:


Sec.  205.1  Automatic revocation.

    (a) * * *
    (3) * * *
    (iii) * * *
    (C) In employment-based preference cases, upon written notice of 
withdrawal filed by the petitioner to any officer of USCIS who is 
authorized to grant or deny petitions, where the withdrawal is filed 
less than 180 days after approval of the employment-based preference 
petition, provided that the revocation of a petition's approval under 
this clause will not, by itself, impact a beneficiary's ability to 
retain his or her priority date under 8 CFR 204.5(e). A petition that 
is withdrawn 180 days or more after approval remains approved unless 
its approval is revoked on other grounds. If an employment-based 
petition on behalf of an alien is withdrawn, the job offer of the 
petitioning employer is rescinded and the alien must obtain a new 
employment-based preference petition on his or her behalf in order to 
seek adjustment of status or issuance of an immigrant visa as an 
employment-based immigrant, unless eligible for adjustment of status 
under section 204(j) of the Act and in accordance with 8 CFR 245.25.
    (D) Upon termination of the petitioning employer's business less 
than 180 days after petition approval in an employment-based preference 
case under section 203(b)(1)(B), 203(b)(1)(C), 203(b)(2), or 203(b)(3) 
of the Act, provided that the revocation of a petition's approval under 
this clause will not, by itself, impact a beneficiary's ability to 
retain his or her priority date under 8 CFR 204.5(e). If a petitioning 
employer's business terminates 180 days or more after approval, the 
petition remains approved unless its approval is revoked on other 
grounds. If a petitioning employer's business terminates, the job offer 
of the petitioning employer is rescinded and the beneficiary must 
obtain a new employment-based preference petition on his or her behalf 
in order to seek adjustment of status or issuance of an immigrant visa 
as an employment-based immigrant, unless eligible for adjustment of 
status under section 204(j) of the Act and in accordance with 8 CFR 
245.25.
* * * * *

PART 214--NONIMMIGRANT CLASSES

0
5. The authority citation for part 214 continues to read as follows:

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 
1221, 1281, 1282, 1301-1305 and 1372; sec. 643, Pub. L. 104-208, 110 
Stat. 3009-708; Pub. L. 105-277, 112 Stat. 2681-641; Pub. L. 106-
313, 114 Stat. 1251-1255; Pub. L. 106-386, 114 Stat. 1477-1480; 
section 141 of the Compacts of Free Association with the Federated 
States of Micronesia and the Republic of the Marshall Islands, and 
with the Government of Palau, 48 U.S.C. 1901 note, and 1931 note, 
respectively; 48 U.S.C. 1806; 8 CFR part 2.

0
6. Section 214.1 is amended by adding a new paragraph (l) to read as 
follows:


Sec.  214.1  Requirements for admission, extension, and maintenance of 
status.

* * * * *
    (l) Period of stay. (1) An alien admissible in E-1, E-2, E-3, H-1B, 
L-1, or TN classification and his or her dependents may be admitted to 
the United States for the validity period of the petition, or for a 
validity period otherwise authorized for the E-1, E-2, E-3, and TN 
classifications, plus an additional period of up to 10 days before the 
validity period begins and a 10-day period following the expiration of 
the validity period to prepare for departure from the United States or 
to seek an extension or change of status based on a subsequent offer of 
employment. Unless authorized under 8 CFR 274a.12, the alien may not 
work except during the validity period.
    (2) An alien admitted or otherwise provided status in E-1, E-2, E-
3, H-1B, H-1B1, L-1, or TN classification and his or her dependents 
shall not be considered to have failed to maintain nonimmigrant status 
solely on the basis of the cessation of the employment on which the 
alien's classification was based for a one-time period during any 
authorized validity period. Such one-time period shall last up to 60 
days or until the end of the authorized validity period, whichever is 
shorter.
    (3) An alien in any authorized period described in paragraph (l) of 
this section may apply for and be granted an extension of stay under 
paragraph (c)(4) of this section or change of status under 8 CFR 248.1, 
if otherwise eligible. DHS may eliminate or shorten the 60-day period 
described in paragraph (l)(2) of this section as a matter of discretion 
and, unless otherwise authorized under 8 CFR 274a.12, the alien may not 
work during such period.
0
7. Section 214.2 is amended by:
0
a. Adding new paragraphs (h)(2)(i)(H), (h)(8)(ii)(F), (h)(13)(iii)(C) 
through (E) and (h)(20);
0
b. Revising paragraphs (h)(4)(v)(C), (h)(13)(i)(A), and 
(h)(19)(iii)(B); and
0
c. Removing the fifth sentence from paragraph (h)(9)(iv).
    The revisions and additions read as follows:


Sec.  214.2  Special requirements for admission, extension, and 
maintenance of status.

* * * * *
    (h) * * *
    (2) * * *
    (i) * * *
    (H) H-1B portability. An eligible H-1B nonimmigrant is authorized 
to start concurrent or new employment under section 214(n) of the Act 
upon the filing, in accordance with 8 CFR 103.2(a), of a non-frivolous 
H-1B petition on behalf of such alien, or as of the requested start 
date, whichever is later.
    (1) Eligible H-1B nonimmigrant. For H-1B portability purposes, an 
eligible H-1B nonimmigrant is defined as an alien:
    (i) Who has been lawfully admitted into the United States;
    (ii) On whose behalf a non-frivolous H-1B petition for new 
employment has been filed, including a petition for new employment with 
the same employer, with a request to amend or extend the H-1B 
nonimmigrant's stay, before the H-1B nonimmigrant's period of stay 
authorized by the Secretary of Homeland Security expires; and
    (iii) Who has not been employed without authorization in the United 
States from the time of last admission through the filing of the 
petition for new employment.
    (2) Length of employment. Employment authorized under paragraph 
(h)(2)(i)(H) of this section automatically ceases upon the adjudication 
of the H-1B petition described in paragraph (h)(2)(i)(H)(1)(ii) of this 
section.

[[Page 81941]]

    (3) Successive H-1B portability petitions. (i) An alien maintaining 
authorization for employment under paragraph (h)(2)(i)(H) of this 
section, whose status, as indicated on the Arrival-Departure Record 
(Form I-94), has expired, shall be considered to be in a period of stay 
authorized by the Secretary of Homeland Security for purposes of 
paragraph (h)(2)(i)(H)(ii) of this section. If otherwise eligible under 
paragraph (h)(2)(i)(H) of this section, such alien may begin working in 
a subsequent position upon the filing of another non-frivolous H-1B 
petition or from the requested start date, whichever is later, 
notwithstanding that the previous H-1B petition upon which employment 
is authorized under paragraph (h)(2)(i)(H) of this section remains 
pending and regardless of whether the validity period of an approved H-
1B petition filed on the alien's behalf expired during such pendency.
    (ii) A request to amend the petition or for an extension of stay in 
any successive H-1B portability petition cannot be approved if a 
request to amend the petition or for an extension of stay in any 
preceding H-1B portability petition in the succession is denied, unless 
the beneficiary's previously approved period of H-1B status remains 
valid.
    (iii) Denial of a successive portability petition does not affect 
the ability of the H-1B beneficiary to continue or resume working in 
accordance with the terms of an H-1B petition previously approved on 
behalf of the beneficiary if that petition approval remains valid and 
the beneficiary has maintained H-1B status or been in a period of 
authorized stay and has not been employed in the United States without 
authorization.
* * * * *
    (4) * * *
    (v) * * *
    (C) Duties without licensure. (1) In certain occupations which 
generally require licensure, a State may allow an individual without 
licensure to fully practice the occupation under the supervision of 
licensed senior or supervisory personnel in that occupation. In such 
cases, USCIS shall examine the nature of the duties and the level at 
which they are performed, as well as evidence provided by the 
petitioner as to the identity, physical location, and credentials of 
the individual(s) who will supervise the alien. If the facts 
demonstrate that the alien under supervision will fully perform the 
duties of the occupation, H classification may be granted.
    (2) An H-1B petition filed on behalf of an alien who does not have 
a valid State or local license, where a license is otherwise required 
to fully perform the duties in that occupation, may be approved for a 
period of up to 1 year if:
    (i) The license would otherwise be issued provided the alien was in 
possession of a valid social security number or was authorized for 
employment in the United States, and
    (ii) The petitioner demonstrates, through evidence from the State 
or local licensing authority, that the only obstacle to the issuance of 
licensure is the lack of a social security number, a lack of employment 
authorization, or both. The petitioner must demonstrate that the alien 
is fully qualified to receive the State or local license in all other 
respects, meaning that all educational, training, experience, and other 
requirements have been met. The alien must have filed an application 
for the license in accordance with applicable State or local rules and/
or procedures, provided that State or local rules and/or procedures do 
not prohibit the alien from filing the license application without 
provision of a social security number or proof of employment 
authorization.
    (3) An H-1B petition on behalf of an alien who has been previously 
accorded H-1B classification under paragraph (h)(4)(v)(C)(2) of this 
section may not be approved unless the petitioner demonstrates that the 
alien has obtained the required license, is seeking to employ the alien 
in a position requiring a different license, or the alien will be 
employed in that occupation in a different location which does not 
require a state or local license to fully perform the duties of the 
occupation.
* * * * *
    (8) * * *
    (ii) * * *
    (F) Cap-exemptions under sections 214(g)(5)(A) and (B) of the Act. 
An alien is not subject to the numerical limitations identified in 
section 214(g)(1)(A) of the Act if the alien qualifies for an exemption 
under section 214(g)(5) of the Act. For purposes of section 
214(g)(5)(A) and (B) of the Act:
    (1) ``Institution of higher education'' has the same definition as 
described at section 101(a) of the Higher Education Act of 1965 (20 
U.S.C. 1001(a)).
    (2) A nonprofit entity shall be considered to be related to or 
affiliated with an institution of higher education if:
    (i) The nonprofit entity is connected to or associated with an 
institution of higher education through shared ownership or control by 
the same board or federation;
    (ii) The nonprofit entity is operated by an institution of higher 
education;
    (iii) The nonprofit entity is attached to an institution of higher 
education as a member, branch, cooperative, or subsidiary; or
    (iv) The nonprofit entity has, absent shared ownership or control, 
entered into a formal written affiliation agreement with an institution 
of higher education that establishes an active working relationship 
between the nonprofit entity and the institution of higher education 
for the purposes of research and/or education, and a primary purpose of 
the nonprofit entity is to directly contribute to the research or 
education mission of the institution of higher education.
    (3) An entity is considered a ``nonprofit entity'' if it meets the 
definition described at paragraph (h)(19)(iv) of this section. 
``Nonprofit research organization'' and ``governmental research 
organization'' have the same definitions as described at paragraph 
(h)(19)(iii)(C) of this section.
    (4) An H-1B beneficiary who is not directly employed by a 
qualifying institution, organization or entity identified in sections 
214(g)(5)(A) or (B) of the Act shall qualify for an exemption under 
such section if the H-1B beneficiary will spend the majority of his or 
her work time performing job duties at a qualifying institution, 
organization or entity and those job duties directly and predominately 
further the essential purpose, mission, objectives or functions of the 
qualifying institution, organization or entity, namely, either higher 
education, nonprofit research or government research. The burden is on 
the H-1B petitioner to establish that there is a nexus between the 
duties to be performed by the H-1B beneficiary and the essential 
purpose, mission, objectives or functions of the qualifying 
institution, organization or entity.
    (5) If cap-exempt employment ceases, and if the alien is not the 
beneficiary of a new cap-exempt petition, then the alien will be 
subject to the cap if not previously counted within the 6-year period 
of authorized admission to which the cap-exempt employment applied. If 
cap-exempt employment converts to cap-subject employment subject to the 
numerical limitations in section 214(g)(1)(A) of the Act, USCIS may 
revoke the petition authorizing such employment consistent with 
paragraph (h)(11)(iii) of this section.
    (6) Concurrent H-1B employment in a cap-subject position of an 
alien that qualifies for an exemption under section 214(g)(5)(A) or (B) 
of the Act shall not subject the alien to the numerical limitations in 
section 214(g)(1)(A) of the

[[Page 81942]]

Act. When petitioning for concurrent cap-subject H-1B employment, the 
petitioner must demonstrate that the H-1B beneficiary is employed in 
valid H-1B status under a cap exemption under section 214(g)(5)(A) or 
(B) of the Act, the beneficiary's employment with the cap exempt 
employer is expected to continue after the new cap-subject petition is 
approved, and the beneficiary can reasonably and concurrently perform 
the work described in each employer's respective positions.
    (i) Validity of a petition for concurrent cap-subject H-1B 
employment approved under paragraph (h)(8)(ii)(F)(6) of this section 
cannot extend beyond the period of validity specified for the cap-
exempt H-1B employment.
    (ii) If H-1B employment subject to a cap exemption under section 
214(g)(5)(A) or (B) of the Act is terminated by a petitioner, or 
otherwise ends before the end of the validity period listed on the 
approved petition filed on the alien's behalf, the alien who is 
concurrently employed in a cap-subject position becomes subject to the 
numerical limitations in section 214(g)(1)(A) of the Act, unless the 
alien was previously counted with respect to the 6-year period of 
authorized H-1B admission to which the petition applies or another 
exemption applies. If such an alien becomes subject to the numerical 
limitations in section 214(g)(1)(A) of the Act, USCIS may revoke the 
cap-subject petition described in paragraph (h)(8)(ii)(F)(6) of this 
section consistent with paragraph (h)(11)(iii) of this section.
* * * * *
    (13) * * *
    (i) * * *
    (A) Except as set forth in 8 CFR 214.1(l) with respect to H-1B 
beneficiaries and their dependents and paragraph (h)(5)(viii)(B) of 
this section with respect to H-2A beneficiaries, a beneficiary shall be 
admitted to the United States for the validity period of the petition, 
plus a period of up to 10 days before the validity period begins and 10 
days after the validity period ends. The beneficiary may not work 
except during the validity period of the petition.
* * * * *
    (iii) * * *
    (C) Calculating the maximum H-1B Admission Period. Time spent 
physically outside the United States exceeding 24 hours by an alien 
during the validity of an H-1B petition that was approved on the 
alien's behalf shall not be considered for purposes of calculating the 
alien's total period of authorized admission under section 214(g)(4) of 
the Act, regardless of whether such time is meaningfully interruptive 
of the alien's stay in H-1B status and the reason for the alien's 
absence. Accordingly, such time may be recaptured in a subsequent H-1B 
petition on behalf of the alien, subject to the maximum period of 
authorized H-1B admission described in section 214(g)(4) of the Act.
    (1) It is the H-1B petitioner's burden to request and demonstrate 
the specific amount of time for recapture on behalf of the beneficiary. 
The beneficiary may provide appropriate evidence, such as copies of 
passport stamps, Arrival-Departure Records (Form I-94), and/or airline 
tickets, together with a chart, indicating the dates spent outside of 
the United States, and referencing the relevant independent documentary 
evidence, when seeking to recapture the alien's time spent outside the 
United States. Based on the evidence provided, USCIS may grant all, 
part, or none of the recapture period requested.
    (2) If the beneficiary was previously counted toward the H-1B 
numerical cap under section 214(g)(1) of the Act with respect to the 6-
year maximum period of H-1B admission from which recapture is sought, 
the H-1B petition seeking to recapture a period of stay as an H-1B 
nonimmigrant will not subject the beneficiary to the H-1B numerical 
cap, notwithstanding whether the alien has been physically outside the 
United States for 1 year or more and would be otherwise eligible for a 
new period of admission under such section of the Act. An H-1B 
petitioner may either seek such recapture on behalf of the alien or, 
consistent with paragraph (h)(13)(iii) of this section, seek a new 
period of admission on behalf of the alien under section 214(g)(1) of 
the Act.
    (D) Lengthy adjudication delay exemption from 214(g)(4) of the Act. 
(1) An alien who is in H-1B status or has previously held H-1B status 
is eligible for H-1B status beyond the 6-year limitation under section 
214(g)(4) of the Act, if, prior to the 6-year limitation being reached, 
at least 365 days have elapsed since:
    (i) The filing of a labor certification with the Department of 
Labor on the alien's behalf, if such certification is required for the 
alien to obtain status under section 203(b) of the Act; or
    (ii) The filing of an immigrant visa petition with USCIS on the 
alien's behalf to accord classification under section 203(b) of the 
Act.
    (2) H-1B approvals under paragraph (h)(13)(iii)(D) of this section 
may be granted in up to 1-year increments until either the approved 
permanent labor certification expires or a final decision has been made 
to:
    (i) Deny the application for permanent labor certification, or, if 
approved, to revoke or invalidate such approval;
    (ii) Deny the immigrant visa petition, or, if approved, revoke such 
approval;
    (iii) Deny or approve the alien's application for an immigrant visa 
or application to adjust status to lawful permanent residence; or
    (iv) Administratively or otherwise close the application for 
permanent labor certification, immigrant visa petition, or application 
to adjust status.
    (3) No final decision while appeal available or pending. A decision 
to deny or revoke an application for labor certification, or to deny or 
revoke the approval of an immigrant visa petition, will not be 
considered final under paragraphs (h)(13)(iii)(D)(2)(i) or (ii) of this 
section during the period authorized for filing an appeal of the 
decision, or while an appeal is pending.
    (4) Substitution of beneficiaries. An alien who has been replaced 
by another alien, on or before July 16, 2007, as the beneficiary of an 
approved permanent labor certification may not rely on that permanent 
labor certification to establish eligibility for H-1B status based on 
this lengthy adjudication delay exemption. Except for a substitution of 
a beneficiary that occurred on or before July 16, 2007, an alien 
establishing eligibility for this lengthy adjudication delay exemption 
based on a pending or approved labor certification must be the named 
beneficiary listed on the permanent labor certification.
    (5) Advance filing. A petitioner may file an H-1B petition seeking 
a lengthy adjudication delay exemption under paragraph (h)(13)(iii)(D) 
of this section within 6 months of the requested H-1B start date. The 
petition may be filed before 365 days have elapsed since the labor 
certification application or immigrant visa petition was filed with the 
Department of Labor or USCIS, respectively, provided that the 
application for labor certification or immigrant visa petition must 
have been filed at least 365 days prior to the last day of the alien's 
authorized 6-year period of H-1B admission under section 214(g)(4) of 
the Act. Such authorized 6-year period of H-1B status includes any 
prior or concurrent request to recapture unused H-1B, L-1A, or L-1B 
time spent outside of the United States. The petitioner may request any 
time remaining to the beneficiary under the maximum period of admission 
described at section 214(g)(4) of the Act along with the exemption 
request, but in no case may the approved H-1B period

[[Page 81943]]

of validity exceed the limits specified by paragraph (h)(9)(iii) of 
this section.
    (6) Petitioners seeking exemption. The H-1B petitioner need not be 
the employer that filed the application for labor certification or 
immigrant visa petition that is used to qualify for this exemption. 
Separate requests for lengthy adjudication delay exemptions under 
paragraph (h)(13)(iii)(D) of this section may be based on separate, 
eligible labor certification applications or immigrant visa petitions 
on behalf of the same alien.
    (7) Subsequent exemption approvals after the 7th year. Each 
exemption granted under paragraph (h)(13)(iii)(D) of this section 
affords the alien a new date at which the alien's maximum period of 
admission expires. A petition for any subsequent extension under 
paragraph (h)(13)(iii)(D) of this section must include evidence that a 
qualifying labor certification or immigrant visa petition was filed at 
least 365 days prior to the last day of the alien's authorized period 
of H-1B admission. Such labor certification or immigrant visa petition 
need not be the same as that used to qualify for the initial exemption 
under paragraph (h)(13)(iii)(D) of this section.
    (8) Aggregation of time not permitted. A petitioner may not 
aggregate the number of days that have elapsed since the filing of one 
labor certification or immigrant visa petition with the number of days 
that have elapsed since the filing of another such application or 
petition to meet the 365-day requirement.
    (9) Exemption eligibility. Only a principal beneficiary of a non-
frivolous labor certification application or immigrant visa petition 
filed on his or her behalf may be eligible under paragraph 
(h)(13)(iii)(D) of this section for an exemption to the maximum period 
of admission under section 214(g)(4) of the Act.
    (10) Limits on future exemptions from the lengthy adjudication 
delay. An immigrant visa petition under section 203(b) of the Act 
cannot support a request for the lengthy adjudication delay exemption 
under paragraph (h)(13)(iii)(D) of this section if the alien fails to 
file an adjustment of status application or make an application for an 
immigrant visa within 1 year of an immigrant visa becoming immediately 
available. If the accrual of such 1-year period is interrupted by the 
unavailability of an immigrant visa, a new 1-year period shall be 
afforded when an immigrant visa again becomes immediately available. 
USCIS may excuse a failure to file in its discretion if the alien 
establishes that the failure to apply was due to circumstances beyond 
his or her control. The limitations described in this paragraph apply 
to any approved immigrant visa petition under section 203(b) of the 
Act, including petitions withdrawn by the petitioner or those filed by 
a petitioner whose business terminates 180 days after approval.
    (E) Per-country limitation exemption from 214(g)(4) of the Act. An 
alien who currently maintains or previously held H-1B status, who is 
the beneficiary of an approved immigrant visa petition for 
classification under sections 203(b)(1), (2), or (3) of the Act, and 
who is eligible to be granted that immigrant status but for application 
of the per country limitation, is eligible for H-1B status beyond the 
6-year limitation under 214(g)(4) of the Act. The petitioner must 
demonstrate such visa unavailability as of the date the H-1B petition 
is filed with USCIS and the unavailability must exist at time of the 
petition's adjudication.
    (1) Validity periods. USCIS may grant validity periods of petitions 
approved under this paragraph in increments of up to 3 years for as 
long as the alien remains eligible for this exemption.
    (2) H-1B approvals under (h)(13)(iii)(E) of this section may be 
granted until a final decision has been made to:
    (i) Revoke the approval of the immigrant visa petition; or
    (ii) Approve or deny the alien's application for an immigrant visa 
or application to adjust status to lawful permanent residence.
    (3) Current H-1B status not required. An alien who is not in H-1B 
status at the time the H-1B petition on his or her behalf is filed, 
including an alien who is not in the United States, may seek an 
exemption of the 6-year limitation under 214(g)(4) of the Act under 
this clause, if otherwise eligible.
    (4) Subsequent petitioners may seek exemptions. The H-1B petitioner 
need not be the employer that filed the immigrant visa petition that is 
used to qualify for this exemption. An H-1B petition may be approved 
under paragraph (h)(13)(iii)(E) of this section with respect to any 
approved immigrant visa petition, and a subsequent H-1B petition may be 
approved with respect to a different approved immigrant visa petition 
on behalf of the same alien.
    (5) Advance filing. A petitioner may file an H-1B petition seeking 
a per-country limitation exemption under paragraph (h)(13)(iii)(E) of 
this section within 6 months of the requested H-1B start date. The 
petitioner may request any time remaining to the beneficiary under the 
maximum period of admission described at section 214(g)(4) of the Act 
along with the exemption request, but in no case may the H-1B approval 
period exceed the limits specified by paragraph (h)(9)(iii) of this 
section.
    (6) Exemption eligibility. Only the principal beneficiary of an 
approved immigrant visa petition for classification under sections 
203(b)(1), (2), or (3) of the Act may be eligible under paragraph 
(h)(13)(iii)(E) of this section for an exemption to the maximum period 
of admission under section 214(g)(4) of the Act.
* * * * *
    (19) * * *
    (iii) * * *
    (B) An affiliated or related nonprofit entity. A nonprofit entity 
shall be considered to be related to or affiliated with an institution 
of higher education if:
    (1) The nonprofit entity is connected to or associated with an 
institution of higher education through shared ownership or control by 
the same board or federation;
    (2) The nonprofit entity is operated by an institution of higher 
education; or
    (3) The nonprofit entity is attached to an institution of higher 
education as a member, branch, cooperative, or subsidiary.
    (4) The nonprofit entity has, absent shared ownership or control, 
entered into a formal written affiliation agreement with an institution 
of higher education that establishes an active working relationship 
between the nonprofit entity and the institution of higher education 
for the purposes of research and/or education, and a primary purpose of 
the nonprofit entity is to directly contribute to the research or 
education mission of the institution of higher education.
* * * * *
    (20) Retaliatory action claims. If credible documentary evidence is 
provided in support of a petition seeking an extension of H-1B stay in 
or change of status to another classification indicating that the 
beneficiary faced retaliatory action from his or her employer based on 
a report regarding a violation of the employer's labor certification 
application obligations under section 212(n)(2)(C)(iv) of the Act, 
USCIS may consider a loss or failure to maintain H-1B status by the 
beneficiary related to such violation as due to, and commensurate with, 
``extraordinary circumstances'' as defined by 8 CFR 214.1(c)(4) and 8 
CFR 248.1(b).
* * * * *

[[Page 81944]]

PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR 
PERMANENT RESIDENCE

0
8. The authority citation for part 245 continues to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1182, 1255; Pub. L. 105-100, 
section 202, 111 Stat. 2160, 2193; Pub. L. 105-277, section 902, 112 
Stat. 2681; Pub. L. 110-229, tit. VII, 122 Stat. 754; 8 CFR part 2.

0
9. Revise Sec.  245.15(n)(2) to read as follows:


Sec.  245.15  Adjustment of status of certain Haitian Nationals under 
the Haitian Refugee Immigrant Fairness Act of 1998 (HRIFA)

* * * * *
    (n) * * *
    (2) Adjudication and issuance. Employment authorization may not be 
issued to an applicant for adjustment of status under section 902 of 
HRIFA until the adjustment application has been pending for 180 days, 
unless USCIS verifies that DHS records contain evidence that the 
applicant meets the criteria set forth in section 902(b) or 902(d) of 
HRIFA, and determines that there is no indication that the applicant is 
clearly ineligible for adjustment of status under section 902 of HRIFA, 
in which case USCIS may approve the application for employment 
authorization, and issue the resulting document, immediately upon such 
verification. If USCIS fails to adjudicate the application for 
employment authorization upon the expiration of the 180-day waiting 
period, or within 90 days of the filing of application for employment 
authorization, whichever comes later, the applicant shall be eligible 
for an employment authorization document. Nothing in this section shall 
preclude an applicant for adjustment of status under HRIFA from being 
granted an initial employment authorization or an extension of 
employment authorization under any other provision of law or regulation 
for which the applicant may be eligible.
* * * * *
0
10. Add Sec.  245.25 to read as follows:


Sec.  245.25  Adjustment of status of aliens with approved employment-
based immigrant visa petitions; validity of petition and offer of 
employment.

    (a) Validity of petition for continued eligibility for adjustment 
of status. An alien who has a pending application to adjust status to 
that of a lawful permanent resident based on an approved employment-
based immigrant visa petition filed under section 204(a)(1)(F) of the 
Act on the applicant's behalf must have a valid offer of employment 
based on a valid petition at the time the application to adjust status 
is filed and at the time the alien's application to adjust status is 
adjudicated, and the applicant must intend to accept such offer of 
employment. Prior to a final administrative decision on an application 
to adjust status, USCIS may require that the applicant demonstrate, or 
the applicant may affirmatively demonstrate to USCIS, on a designated 
form in accordance with the form instructions, or as otherwise 
determined by USCIS, with any required supporting documentary evidence, 
that:
    (1) The employment offer by the petitioning employer is continuing; 
or
    (2) Under section 204(j) of the Act, the applicant has a new offer 
of employment from the petitioning employer or a different U.S. 
employer, or a new offer based on self-employment, in the same or a 
similar occupational classification as the employment offer under the 
qualifying petition, provided that:
    (i) The alien's application to adjust status based on a qualifying 
petition has been pending for 180 days or more; and
    (ii) The approval of the qualifying petition has not been revoked.

In all cases, the applicant and his or her intended employer must 
demonstrate the intention for the applicant to be employed under the 
continuing or new employment offer (including self-employment) 
described in paragraphs (a)(1) and (2) of this section, as applicable, 
within a reasonable period upon the applicant's grant of lawful 
permanent resident status.
    (b) Evidence--(1) Continuing employment offer. Unless otherwise 
specified on the form or form instructions, for purposes of paragraph 
(a)(1) of this section, evidence of a continuing employment offer shall 
be provided in the form of a written attestation, signed by such 
employer, attesting that the employer continues to extend the original 
offer of employment and intends that the applicant will commence the 
employment described in the offer of employment within a reasonable 
period upon adjustment of status.
    (2) New employment offer. Unless otherwise specified by a form or 
form instructions, for purposes of paragraph (a)(2) of this section, 
evidence of a new offer of employment that is in the same or a similar 
occupational classification as the employment offer under the approved 
petition as required by section 204(j) of the Act must include:
    (i) A written attestation signed by the new employer describing the 
new employment offer, including its requirements and a description of 
the duties in the new position, and stating that the employer intends 
that the applicant will commence the employment described in the new 
employment offer within a reasonable period upon adjustment of status;
    (ii) An explanation from the new employer establishing that the new 
employment offer and the employment offer under the approved petition 
are in the same or similar occupational classification, which may 
include material and credible information provided by another Federal 
government agency, such as information from the Standard Occupational 
Classification (SOC) system, or similar or successor system, 
administered by the Department of Labor; and
    (iii) A copy of the receipt notice issued by USCIS, or if 
unavailable, secondary evidence showing that the alien's application to 
adjust status based on such petition has been pending with USCIS for 
180 days or more.
    (3) Intention after grant of adjustment of status application. 
Evidence that the applicant intends to commence the employment 
described either in the continuing employment offer or, if pursuing an 
offer of new employment in accordance with section 204(j) of the Act, 
the new employment offer, within a reasonable period upon adjustment of 
status, including a written attestation signed by the applicant.
    (c) Definition of same or similar occupational classification. The 
term ``same occupational classification'' means an occupation that 
resembles in every relevant respect the occupation for which the 
underlying employment-based immigrant visa petition was approved. The 
term ``similar occupational classification'' means an occupation that 
shares essential qualities or has a marked resemblance or likeness with 
the occupation for which the underlying employment-based immigrant visa 
petition was approved.

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

0
11. The authority citation for part 274a continues to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1324a; 48 U.S.C. 1806; 8 CFR 
part 2.

0
12. Amend Sec.  274a.2 by revising paragraph (b)(1)(vii) to read as 
follows:


Sec.  274a.2  Verification of identity and employment authorization.

* * * * *
    (b) * * *
    (1) * * *
    (vii) If an individual's employment authorization expires, the 
employer,

[[Page 81945]]

recruiter or referrer for a fee must reverify on the Form I-9 to 
reflect that the individual is still authorized to work in the United 
States; otherwise, the individual may no longer be employed, recruited, 
or referred. Reverification on the Form I-9 must occur not later than 
the date work authorization expires. If an Employment Authorization 
Document (Form I-766 or successor form) as described in Sec.  
274a.13(d) was presented for completion of the Form I-9 in combination 
with a Notice of Action (Form I-797C), or successor form, stating that 
the original Employment Authorization Document has been automatically 
extended for up to 180 days, reverification applies upon the expiration 
of the automatically extended validity period under Sec.  274a.13(d) 
and not upon the expiration date indicated on the face of the alien's 
Employment Authorization Document. In order to reverify on the Form I-
9, the employee or referred individual must present a document that 
either shows continuing employment eligibility or is a new grant of 
work authorization. The employer or the recruiter or referrer for a fee 
must review this document, and if it appears to be genuine and relate 
to the individual, reverify by noting the document's identification 
number and expiration date, if any, on the Form I-9 and signing the 
attestation by a handwritten signature or electronic signature in 
accordance with paragraph (i) of this section.
* * * * *
0
13. Amend Sec.  274a.12 by:
0
a. In paragraph (b)(9), removing ``;'' at the end and adding in its 
place ``.'', and adding a new sentence to the end of the paragraph;
0
b. Adding and reserving new paragraphs (c)(27) to (c)(34); and
0
c. Adding new paragraphs (c)(35) and (c)(36).
    The additions read as follows:


Sec.  274a.12  Classes of aliens authorized to accept employment.

* * * * *
    (b) * * *
    (9) * * * In the case of a nonimmigrant with H-1B status, 
employment authorization will automatically continue upon the filing of 
a qualifying petition under 8 CFR 214.2(h)(2)(i)(H) until such petition 
is adjudicated, in accordance with section 214(n) of the Act and 8 CFR 
214.2(h)(2)(i)(H);
* * * * *
    (c) * * *
    (35) An alien who is the principal beneficiary of a valid immigrant 
petition under section 203(b)(1), 203(b)(2) or 203(b)(3) of the Act 
described as eligible for employment authorization in 8 CFR 204.5(p).
    (36) A spouse or child of a principal beneficiary of a valid 
immigrant petition under section 203(b)(1), 203(b)(2) or 203(b)(3) of 
the Act described as eligible for employment authorization in 8 CFR 
204.5(p).
* * * * *
0
14. Amend Sec.  274a.13 by:
0
a. Revising the paragraph (a) introductory text;
0
b. Removing the first sentence of paragraph (a)(1); and
0
c. Revising paragraph (d).
    The revisions read as follows:


Sec.  274a.13  Application for employment authorization.

    (a) Application. An alien requesting employment authorization or an 
Employment Authorization Document (Form I-766 or successor form), or 
both, may be required to apply on a form designated by USCIS with any 
prescribed fee(s) in accordance with the form instructions. An alien 
may file such request concurrently with a related benefit request that, 
if granted, would form the basis for eligibility for employment 
authorization, only to the extent permitted by the form instructions.
* * * * *
    (d) Renewal application--(1) Automatic extension of Employment 
Authorization Documents. Except as otherwise provided in this chapter 
or by law, notwithstanding 8 CFR 274a.14(a)(1)(i), the validity period 
of an expiring Employment Authorization Document (Form I-766 or 
successor form) and, for aliens who are not employment authorized 
incident to status, also the attendant employment authorization, will 
be automatically extended for an additional period not to exceed 180 
days from the date of such document's and such employment 
authorization's expiration if a request for renewal on a form 
designated by USCIS is:
    (i) Properly filed as provided by form instructions before the 
expiration date shown on the face of the Employment Authorization 
Document;
    (ii) Based on the same employment authorization category as shown 
on the face of the expiring Employment Authorization Document or is for 
an individual approved for Temporary Protected Status whose EAD was 
issued pursuant to 8 CFR 274a.12(c)(19); and
    (iii) Based on a class of aliens whose eligibility to apply for 
employment authorization continues notwithstanding expiration of the 
Employment Authorization Document and is based on an employment 
authorization category that does not require adjudication of an 
underlying application or petition before adjudication of the renewal 
application, including aliens described in 8 CFR 274a.12(a)(12) granted 
Temporary Protected Status and pending applicants for Temporary 
Protected Status who are issued an EAD under 8 CFR 274a.12(c)(19), as 
may be announced on the USCIS Web site.
    (2) Terms and conditions. Any extension authorized under this 
paragraph shall be subject to any conditions and limitations noted in 
the immediately preceding employment authorization.
    (3) Termination. The period authorized by paragraph (d)(1) of this 
section shall automatically terminate the earlier of up to 180 days 
after the expiration date of the Employment Authorization Document 
(Form I-766, or successor form), or upon issuance of notification of a 
decision denying the renewal request. Nothing in paragraph (d) of this 
section shall affect DHS's ability to otherwise terminate any 
Employment Authorization Document or extension period for such document 
and, as applicable, employment authorization, in accordance with 8 CFR 
274a.14 or otherwise in this chapter, by written notice to the 
applicant, or by notice to a class of aliens published in the Federal 
Register.
    (4) Unexpired Employment Authorization Documents. An Employment 
Authorization Document (Form I-766, or successor form) that has expired 
on its face is considered unexpired when combined with a Notice of 
Action (Form I-797C), or successor form which demonstrates that the 
requirements of paragraph (d)(1) of this section have been met.

Jeh Charles Johnson,
Secretary.
[FR Doc. 2015-32666 Filed 12-30-15; 8:45 am]
 BILLING CODE 9111-97-P