[Federal Register Volume 81, Number 223 (Friday, November 18, 2016)]
[Rules and Regulations]
[Pages 82398-82492]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-27540]



[[Page 82397]]

Vol. 81

Friday,

No. 223

November 18, 2016

Part VI





 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; Final Rule

Federal Register / Vol. 81 , No. 223 / Friday, November 18, 2016 / 
Rules and Regulations

[[Page 82398]]


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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: Final rule.

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SUMMARY: The Department of Homeland Security (DHS) is amending its 
regulations related to certain employment-based immigrant and 
nonimmigrant visa programs. Specifically, the final rule provides 
various benefits to participants in those programs, including the 
following: improved processes and increased certainty for U.S. 
employers seeking to sponsor and retain immigrant and nonimmigrant 
workers; greater stability and job flexibility for those workers; and 
increased transparency and consistency in the application of DHS 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, while increasing the ability of those 
workers to seek promotions, accept lateral positions with current 
employers, change employers, or pursue other employment options.

DATES: This final rule is effective January 17, 2017.

ADDRESSES: Comments and related materials received from the public, as 
well as background documents mentioned in this preamble as being 
available in the docket, are part of docket USCIS-2015-0008. For access 
to the online docket, go to http://www.regulations.gov and enter this 
rulemaking's eDocket number: USCIS-2015-0008 in the ``Search'' box.

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. Abbreviations
II. Executive Summary
    A. Purpose and Summary of the Regulatory Action
    1. Clarifications and Policy Improvements
    2. Summary of Changes From the Notice of Proposed Rulemaking
    B. Legal Authority
    C. Costs and Benefits
III. Background
    A. 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
    i. AC21 Provisions Relating to Employment-based Immigrant Visas
    ii. AC21 Provisions Seeking To Improve the H-1B Nonimmigrant 
Worker Classification
    a. Exemptions From the H-1B Numerical Cap
    b. Application of the H-1B Numerical Cap to Persons Previously 
Counted
    c. H-1B Portability
    B. Processing Applications for Employment Authorization 
Documents
    C. The Increasing Challenges Caused by Immigrant Visa Backlogs
IV. Discussion of Comments
    A. Overview of the Comments
    B. Authority of DHS To Administer and Enforce Immigration Laws
    1. Description of DHS's Legal Authority
    2. Public Comments and Responses
    C. Immigration Fraud and National Security Concerns
    1. Description of Final Rule and Changes From the NPRM
    2. Public Comments and Responses
    D. Petitions for Employment-Based Immigrants and Priority Date 
Retention
    1. Description of Final Rule and Changes From the NPRM
    2. Public Comments and Responses
    i. Establishing a Priority Date
    ii. Retaining a Priority Date
    iii. Priority Date Not Retained if Approval Revoked for Fraud, 
Willful Misrepresentation, DOL Revocation, Invalidation by USCIS or 
DOS, Material Error, or Denied Petition
    iv. Beneficiary Standing To Challenge the Revocation of an 
Employment-Based Immigrant Visa Petition's Approval
    E. Continuing and Bona Fide Job Offer and Supplement J Form
    1. Description of Final Rule and Changes From NPRM
    2. Public Comments and Responses
    i. Portability Under INA 204(j)
    ii. Concerns Raised Regarding Supplement J
    iii. Miscellaneous Comments on Supplement J
    F. Compelling Circumstances Employment Authorization
    1. Description of Final Rule and Changes From NPRM
    2. Public Comments and Responses
    i. Support for Compelling Circumstances Employment Authorization
    ii. Status of Individuals Who Are Granted a Compelling 
Circumstances EAD
    iii. Changing the Scope of Proposed Employment Authorization
    iv. Illustrations of Compelling Circumstances
    v. Nonimmigrant and Immigrant Classifications of Individuals 
Eligible To Request Employment Authorization Based on Compelling 
Circumstances
    vi. Application Timeframes for Compelling Circumstances EADs
    vii. EAD Validity Period
    viii. Visa Bulletin Dates
    ix. Renewals of Employment Authorization Granted Pursuant to 
Compelling Circumstances
    x. Automatically Granting Advance Parole to Individuals Who Have 
Compelling Circumstances EADs
    xi. Employment Authorization Parity for Legal and Undocumented 
Workers, Including Individuals Granted Deferred Action for Childhood 
Arrivals (DACA)
    G. Nonimmigrant Grace Periods
    1. Description of Final Rule and Changes From NPRM
    2. Public Comments and Responses
    i. Length of the 10-Day Grace Periods
    ii. Eligibility for 10-Day Grace Periods
    iii. Miscellaneous Comments on 10-day Grace Periods
    iv. Length of the 60-Day Grace Period
    v. Frequency of the 60-Day Grace Period
    vi. Classifications Eligible for the 60-Day Grace Period
    vii. Clarifying the Meaning of ``up to'' in the 60-Day Grace 
Period
    viii. Employment Authorization During the Grace Periods
    H. Job Portability for H-1B Nonimmigrant Workers
    1. Description of Final Rule and Changes From NPRM
    2. Public Comments and Responses
    i. H-1B Status Requirement
    ii. International Travel and Successive Portability Petitions 
(``Bridge Petitions'')
    iii. Portability to New Employment Subject to the Cap
    I. H-1B Licensing Requirements
    1. Description of Final Rule and Changes From NPRM
    2. Public Comments and Responses
    i. Duties Without Licensure--Expand Circumstances
    ii. Unlicensed Employment Under Supervision
    iii. Duration of H-1B Petition Approval
    iv. Unrestricted Extendable Licenses
    J. Employers Exempt from H-1B Numerical Limitations and 
Qualifying for Fee Exemptions
    1. Description of Final Rule and Changes From NPRM
    2. Public Comments and Responses
    i. Include Government Entities in the Definition of ``Related or 
Affiliated''
    ii. Clarify that a Nonprofit Entity Only Needs To Meet One of 
the Criteria in 8 CFR 214.2(h)(8)(ii)(F)(2) and 8 CFR 
214.2(h)(19)(iii)(B)
    iii. The ``Primary Purpose'' Requirement for Nonprofit Entities 
Seeking Exemptions Based on Formal Written Affiliation Agreements
    iv. Formal Written Affiliation Agreement

[[Page 82399]]

    v. Impose Additional Requirements To Qualify as an Institution 
of Higher Education
    vi. Impose Additional Requirements on the Nature of Employment 
at a Qualifying Nonprofit Entity or Nonprofit Research Organization
    vii. Expand Interpretation of Research Organization
    viii. Requirement that the H-1B Worker Perform a Majority of 
Duties ``at'' the Cap Exempt Entity
    ix. Codify Existing USCIS Deference Policy
    x. Create a Mechanism To Obtain a Pre-Determination of Cap 
Exemption
    xi. Allot H-1B Visas Subject to the Cap on a Quarterly Basis
    xii. Request for Continuation of Cap-Subject Employment When 
Concurrent Cap-Exempt H-1B Employment Ends
    xiii. Prohibit Cap-Exempt H-1B Worker From Concurrent Employment
    K. Exemptions to the Maximum Admission Period of H-1B 
Nonimmigrants
    1. Description of Final Rule and Changes From NPRM
    2. Public Comments and Responses
    i. Recapture of H-1B Time
    ii. AC21 106(a) and (b)--Lengthy Adjudication Delay Exemptions
    iii. AC21 104(c)--Per Country Limitations
    iv. Spousal Eligibility for H-1B Extensions Beyond Six Years 
under AC21
    L. Whistleblower Protections in the H-1B Nonimmigrant Program
    1. Description of Final Rule and Changes From NPRM
    2. Public Comments and Responses
    M. Haitian Refugee Immigrant Fairness Act of 1998
    1. Changes to DHS HRIFA regulations
    N. Application for Employment Authorization
    1. Description of Final Rule and Changes From NPRM
    2. Public Comments and Responses
    i. Adjudication Timeframes for Initial and Renewal Applications 
of Employment Authorization
    ii. Earlier Filing for EAD Renewals
    iii. Concurrent Filings
    iv. Potential Gaps in Employment Authorization
    v. Interim EADs
    vi. Automatic Extensions of EADs and Advance Parole
    vii. H-4 Nonimmigrant Spouses
    viii. F-1 Nonimmigrant Students
    ix. Expanding Automatic Extensions to Additional Categories
    x. State Driver's License Issues
    xi. Form I-9 and Automatic Extensions of EADs
    xii. National Security and Fraud Concerns
    xiii. Separate Rulemaking for the Elimination of the EAD 90-Day 
Processing Timeframe
    xiv. Requests for Premium Processing
    O. Employment Authorization and Reverification on Form I-9
    1. Description of Final Rule and Changes From NPRM
    2. Public Comments and Responses
    i. Reverification
    ii. Use of Form I-9 To Change Employment Authorization 
Categories
    iii. Comments Suggesting Additional Revisions
    P. Other Comments
    1. Procedural Aspects of the Rulemaking
    2. Assertions That the Employment-Based Immigration System 
Enables Slavery and Servitude to Employers
    3. Limits on Employment-Based Immigration by Country
    4. Guidance on National Interest Waivers
    5. The Revised Visa Bulletin System
    Q. Public Comments and Responses on Statutory and Regulatory 
Requirements
    1. Regulatory Impact Analysis
    2. General Economy
    3. Labor Market and Labor Force Impact, Including Jobs, Wages, 
and Job Portability
    i. Effect of the Rule on the Availability of Jobs in the United 
States
    ii. Effect of the Rule on Job Portability for Foreign Workers
    iii. Effect of the Rule on Wages
    iv. Effect of Employment-Based Immigration on Falling Income
    v. Effect of the Rule on Costs Incurred by Employers
    4. DHS Estimate of 155,000 Compelling Circumstances Employment 
Authorization Applicants
    5. Unfunded Mandates Reform Act Violation
    6. Review under the National Environmental Policy Act (NEPA)
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. Abbreviations

AC21 American Competitiveness Act of the 21st Century
ACWIA American Competitiveness and Workforce Improvement Act of 1998
APA Administrative Procedure Act
CBP U.S. Customs and Border Protection
CFR Code of Federal Regulations
DACA Deferred Action for Childhood Arrivals
DHS Department of Homeland Security
DOL Department of Labor
DOJ Department of Justice
DOS Department of State
EAD Employment Authorization Document
EB Employment-based immigrant visa category
EB-1 Employment-based first preference immigrant visa petition
EB-2 Employment-based second preference immigrant visa petition
EB-3 Employment-based third preference immigrant visa petition
EB-4 Employment-based fourth preference immigrant visa petition
EB-5 Employment-based fifth preference immigrant visa petition
FDNS Fraud Detection and National Security
FR Federal Register
FY Fiscal Year
HSA Homeland Security Act of 2002
IIRIRA Illegal Immigration Reform and Immigrant Responsibility Act 
of 1996
ICE U.S. Immigration and Customs Enforcement
INA Immigration and Nationality Act
LCA Labor Condition Application
LPR Lawful Permanent Resident
NOID Notice of Intent to Deny
NPRM Notice of Proposed Rulemaking
RFE Request for Evidence
RIA Regulatory Impact Analysis
SOC Standard Occupational Classification
STEM Science, Technology, Engineering, and Mathematics
TPS Temporary Protected Status
U.S.C. United States Code
USCIS U.S. Citizenship and Immigration Services

II. Executive Summary

A. Purpose and Summary of the Regulatory Action

    DHS is amending its regulations related to certain employment-based 
immigrant and nonimmigrant visa programs. The final 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 DHS policies and practices 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 (Form I-140) 
petitions, while increasing the ability of these workers to further 
their careers by accepting promotions, changing positions with current 
employers, changing employers, and pursuing other employment 
opportunities.
    1. Clarifications and Policy Improvements
    First, the final rule largely conforms DHS regulations to 
longstanding DHS policies and practices 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

[[Page 82400]]

(2002).\1\ Those 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 
employment-based immigrants, while enhancing opportunities for 
innovation and expansion, maintaining U.S. competitiveness, and 
protecting U.S. workers. The final rule further clarifies and improves 
DHS policies and practices in this area--policies and practices that 
have long been specified through a series of policy memoranda and 
precedent decisions of the U.S. Citizenship and Immigration Services 
(USCIS) Administrative Appeals Office. By clarifying such policies in 
regulation, DHS provides greater transparency and certainty to affected 
employers and workers, while increasing consistency among DHS 
adjudications. In addition, this final rule clarifies several 
interpretive questions raised by AC21 and ACWIA.
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    \1\ Except where changes to current policies and practices are 
noted in the preamble of this final rule, these amendments capture 
the longstanding policies and practices that have developed since 
AC21 and ACWIA were enacted. DHS also notes that policies 
implementing AC21 and ACWIA provisions, if not referenced, 
discussed, or changed through this rulemaking, remain in place.
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    Specifically, the final rule clarifies and improves policies and 
practices related to:
     H-1B extensions of stay under AC21. The final rule 
addresses the ability of H-1B nonimmigrant workers who are being 
sponsored for LPR status (and their dependents in H-4 nonimmigrant 
status) to extend their nonimmigrant stay beyond the otherwise 
applicable 6-year limit pursuant to AC21.
     INA 204(j) portability. The final rule addresses the 
ability of certain workers who have pending applications for adjustment 
of status to change employers or jobs without endangering the approved 
Form I-140 petitions filed on their behalf.
     H-1B portability. The final rule addresses the ability of 
H-1B nonimmigrant workers to change jobs or employers, including: (1) 
Beginning employment with new H-1B employers upon the filing of non-
frivolous petitions for new H-1B employment (``H-1B portability 
petition''); and (2) allowing H-1B employers to file successive H-1B 
portability petitions (often referred to as ``bridge petitions'') and 
clarifying how these petitions affect lawful status and work 
authorization.
     Counting against the H-1B annual cap. The final rule 
clarifies the way in which H-1B nonimmigrant workers are counted 
against the annual H-1B numerical cap, including: (1) The method for 
calculating when these 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 admission; and (2) the 
method for determining which H-1B nonimmigrant workers are ``cap-
exempt'' as a result of previously being counted against the cap.
     H-1B cap exemptions. The final rule clarifies and improves 
the method for determining which H-1B nonimmigrant workers are exempt 
from the H-1B numerical cap due to their employment at 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.''
     Protections for H-1B whistleblowers. The final rule 
addresses 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 (LCA) 
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.''
     Form I-140 petition validity. The final rule clarifies the 
circumstances under which an approved Immigrant Petition for Alien 
Worker (Form I-140 petition) remains valid, even after the petitioner 
withdraws the petition or the petitioner's business terminates, 
including for purposes of status extension applications filed on behalf 
of the beneficiary, job portability of H-1B nonimmigrants, and job 
portability under section 204(j) of the Immigration and Nationality Act 
(INA), 8 U.S.C. 1154(j).
    Second, this rule builds on the provisions listed above by making 
changes consistent with the goals of AC21 and ACWIA to further provide 
stability and flexibility in certain immigrant and nonimmigrant visa 
categories. The amended provisions 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. These 
changes also provide certainty for the regulated community and improve 
consistency across DHS adjudications, thereby enhancing DHS's ability 
to fulfill its responsibilities related to U.S. employers and certain 
foreign workers. Specifically, the final rule provides the following:
     Establishment of priority dates. To enhance clarity for 
the regulated community, the final rule provides that a priority date 
is generally established based upon the filing of certain applications 
or petitions. The new regulatory language is consistent with existing 
DHS practice in establishing priority dates for other Form I-140 
petitions that do not require permanent labor certifications (labor 
certifications)--such as petitions filed under the employment-based 
first preference immigrant visa (EB-1) category.\2\ See final 8 CFR 
204.5(d).\3\
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    \2\ The EB-1 preference category is for individuals with 
extraordinary ability, outstanding professors and researchers, and 
multinational executives and managers.
    \3\ In this final rule, the word ``final'' before a reference to 
8 CFR is used to refer to a provision promulgated through this final 
rule and the word ``proposed'' before 8 CFR is used to refer to a 
provision of the proposed rule. See Retention of EB-1, EB-2, and EB-
3 Immigrant Workers and Program Improvements Affecting High-Skilled 
Nonimmigrant Workers; Proposed Rule, 80 FR 81899 (Dec. 31, 2015).
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     Retention of priority dates. To enhance job portability 
for workers with approved Form I-140 petitions, the final rule explains 
the circumstances under which workers may retain priority dates and 
effectively transfer those dates to new and subsequently approved Form 
I-140 petitions. Priority date retention will generally be available as 
long as the approval of the initial Form I-140 petition was not revoked 
for fraud, willful misrepresentation of a material fact, the 
invalidation or revocation of a labor certification, or material error. 
This provision improves the ability of certain workers to accept 
promotions, change employers, or pursue other employment opportunities 
without fear of losing their place in line for immigrant visas. See 
final 8 CFR 204.5(e).
     Retention of employment-based immigrant visa petitions. To 
enhance job portability for certain workers with approved Form I-140 
petitions in the EB-1, second preference (EB-2), and third preference 
(EB-3) categories, but who are unable to obtain LPR status due to 
immigrant visa backlogs, the final rule provides that Form I-140 
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 the termination of the petitioner's business. See final 8 
CFR 205.1(a)(3)(iii)(C) and (D).

[[Page 82401]]

     Eligibility for employment authorization in compelling 
circumstances. To enhance stability and job flexibility for certain 
high-skilled nonimmigrant workers in the United States with approved 
Form I-140 petitions who cannot obtain an immigrant visa due to 
statutory limits on the number of immigrant visas that may be issued, 
the final rule allows certain beneficiaries in the United States in 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 discretion of DHS, justify the issuance of 
employment authorization. See final 8 CFR 204.5(p).
     10-day nonimmigrant grace periods. To promote stability 
and flexibility for certain high-skilled nonimmigrant workers, the 
final rule provides two grace periods of up to 10 days, consistent with 
those already available to individuals in some nonimmigrant 
classifications, to individuals in the E-1, E-2, E-3, L-1, and TN 
classifications. The rule allows an initial grace period of up to 10 
days prior to the start of an authorized validity period, which 
provides nonimmigrants in the above classifications a reasonable amount 
of time to enter the United States and prepare to begin employment in 
the country. The rule also allows a second grace period of up to 10 
days after the end of an authorized validity period, which provides a 
reasonable amount of time for such nonimmigrants to depart the United 
States or take other actions to extend, change, or otherwise maintain 
lawful status. See final 8 CFR 214.1(l)(1).
     60-day nonimmigrant grace periods. To further enhance job 
portability, the final rule establishes a grace period of up to 60 
consecutive days during each authorized validity period for individuals 
in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classifications. This 
grace period allows high-skilled workers in these classifications, 
including those whose employment ceases prior to the end of the 
petition validity period, to more readily pursue new employment should 
they be eligible for other employer-sponsored nonimmigrant 
classifications or employment in the same classification with a new 
employer. The grace period also allows U.S. employers to more easily 
facilitate changes in employment for existing or newly recruited 
nonimmigrant workers. See final 8 CFR 214.1(l)(2).
     H-1B licensing. To provide clarity and certainty to the 
regulated community, the final regulations codify current DHS policy 
regarding exceptions to the requirement that makes the approval of an 
H-1B petition contingent upon the beneficiary's licensure where 
licensure is required to fully perform the duties of the relevant 
specialty occupation. The final rule generally allows for the temporary 
approval of an H-1B petition for an otherwise eligible unlicensed 
worker, if the petitioner can demonstrate that the worker is unable for 
certain technical reasons to obtain the required license before 
obtaining H-1B status. The final rule also clarifies the types of 
evidence that would need to be submitted to support approval of an H-1B 
petition on behalf of an unlicensed worker who will work in a state 
that allows the individual to be employed in the relevant occupation 
under the supervision of licensed senior or supervisory personnel. See 
final 8 CFR 214.2(h)(4)(v)(C).
    As noted above, these changes codify and improve USCIS policies 
concerning various employment-based immigrant and nonimmigrant visa 
classifications, including by making it easier to hire and retain 
nonimmigrant workers who have approved Form I-140 petitions and giving 
such workers additional career options as they wait for immigrant visas 
to become available. These improvements are increasingly important 
considering the lengthy waits and consistently growing demand for 
immigrant visas.
    Finally, to provide additional stability and certainty to U.S. 
employers and individuals eligible for employment authorization in the 
United States, this final rule changes several DHS regulations 
governing the processing of applications for employment authorization. 
First, to minimize the risk of any gaps in employment authorization, 
this final rule automatically extends the validity of Employment 
Authorization Documents (EADs or Forms I-766) in certain circumstances 
based on the timely filing of EAD renewal applications. Specifically, 
the rule automatically extends the employment authorization and 
validity of existing EADs issued to certain employment-eligible 
individuals for up to 180 days from the date of expiration, as 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 under 8 CFR 274a.12(c)(19)); (2) the 
renewal application is timely filed prior to the expiration of the EAD 
(or, in accordance with an applicable Federal Register notice regarding 
procedures for renewing TPS-related employment documentation) and 
remains pending; and (3) the individual's eligibility for employment 
authorization continues beyond the expiration of the EAD and an 
independent adjudication of the underlying eligibility is not a 
prerequisite to the extension of employment authorization. 
Concurrently, DHS eliminates the regulatory provisions that require 
adjudication of the Application for Employment Authorization (Form I-
765 or EAD application) 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 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. See final 8 CFR 
247a.13(d).
2. Summary of Changes From the Notice of Proposed Rulemaking
    Following careful consideration of public comments received, DHS 
has made several modifications to the regulatory text proposed in the 
Notice of Proposed Rulemaking (NPRM) published in the Federal Register 
on December 31, 2015. See Retention of EB-1, EB-2, and EB-3 Immigrant 
Workers and Program Improvements Affecting High-Skilled Nonimmigrant 
Workers; Proposed Rule, 80 FR 81899. Those changes include the 
following:
     Retaining a Priority Date. In the final rule, DHS is 
responding to public comment by revising proposed 8 CFR 
204.5(e)(2)(iv), a provision that identifies when error related to the 
approval of an employment-based immigrant visa petition can lead to 
loss of a priority date. The term ``error'' is clarified to mean 
``material error'' in final 8 CFR 204.5(e)(2)(iv), which now states 
that a priority date may not be retained if USCIS revokes the approval 
of the Form I-140 petition because it determined that there was a 
material error with regard to the petition's approval.
     Eligibility for employment authorization in compelling 
circumstances. In the final rule, DHS is responding to public comment 
by revising several aspects of proposed 8 CFR 204.5(p) governing 
requests for EADs in compelling circumstances.
    First, DHS is revising proposed 8 CFR 204.5(p)(1)(i), which 
discusses the eligibility of principal beneficiaries of immigrant visa 
petitions to obtain EADs

[[Page 82402]]

in compelling circumstances. In the final rule, DHS provides 
clarification that principal beneficiaries may be eligible to file 
applications for such EADs during the authorized periods of admission 
that immediately precede or follow the validity periods of their 
nonimmigrant classifications (i.e., ``grace periods'').
    Second, DHS also is making several revisions to proposed 8 CFR 
204.5(p)(3), which addresses certain eligibility requirements for 
principal beneficiaries and family members seeking to renew EADs issued 
in compelling circumstances. DHS clarifies in final Sec.  204.5(p)(3) 
that applicants seeking to extend such employment authorization must 
file a renewal Form I-765 before the expiration of their current 
employment authorization. DHS also streamlines and clarifies the 
regulatory text covering the two instances in which applicants may be 
eligible to apply for renewal. DHS clarifies that under final Sec.  
204.5(p)(3)(i)(A), applicants may apply for renewal if the principal 
beneficiary continues to demonstrate compelling circumstances and an 
immigrant visa is not authorized for issuance to the principal 
beneficiary based on his or her priority date. DHS also clarifies that 
under final Sec.  204.5(p)(3)(i)(B), a principal beneficiary may apply 
for renewal if his or her priority date is one year or less either 
before or after the relevant date in the Department of State Visa 
Bulletin. In determining whether the difference between the principal 
beneficiary's priority date and the date upon which immigrant visas are 
authorized for issuance is one year or less, DHS will use the 
applicable Final Action Date in the Visa Bulletin that was in effect on 
the date the application for employment authorization is filed.
    Third, DHS is removing a ground of ineligibility that was proposed 
in Sec.  204.5(p)(5), as it was duplicative of requirements for renewal 
under Sec.  204.5(p)(3)(i)(B), which authorizes eligibility for 
renewals when the difference between the principal beneficiary's 
priority date and the date upon which immigrant visas are authorized 
for issuance to the principal beneficiary is 1 year or less according 
to the Visa Bulletin in effect on the date the application for 
employment authorization is filed.
    Fourth, DHS is revising proposed Sec.  204.5(p)(3)(ii) to clarify 
that family members may submit applications to renew employment 
authorization concurrently with renewal applications filed by the 
principal beneficiaries, or while such applications are pending, but 
family renewal applications cannot be approved unless the principal 
beneficiaries' applications are granted under paragraph (p)(3)(i) and 
remain valid.
    Finally, DHS is making several technical revisions for readability 
and clarity.
     Automatic revocation. In the final rule, DHS is responding 
to public comment by editing proposed 8 CFR 205.1(a)(3)(iii)(C) and 
(D), which provide the grounds for automatically revoking Form I-140 
petitions. DHS is revising these provisions to clarify that a Form I-
140 petition will remain approved if a request to withdraw it is 
received or the petitioner terminates its business 180 days or more 
after either the date of the petition's approval or the date of filing 
of an associated application for adjustment of status.\4\ In addition, 
DHS is removing the phrase, ``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)'' in Sec.  205.1(a)(3)(iii)(C) and (D) because that phrase was 
redundant of text in 8 CFR 204.5(e), which, as proposed and retained in 
this final rule, already establishes the ability of the beneficiary to 
retain his or her priority date if his or her immigrant visa petition 
is revoked on any ground other than those enumerated in final 8 CFR 
204.5(e)(2)(i)-(iv). The deletion of the redundant text does not change 
the substance of the provisions.
---------------------------------------------------------------------------

    \4\ Such petitions will remain approved unless revoked on other 
grounds.
---------------------------------------------------------------------------

     Period of stay. In the final rule, DHS is responding to 
public comment by revising proposed 8 CFR 214.1(l), which concerns 
authorized grace periods that may immediately precede and follow 
periods of nonimmigrant petition validity and other authorized periods 
of stay. DHS is removing from proposed 8 CFR 214.1(l)(1) the phrase 
``to prepare for departure from the United States or to seek an 
extension or change of status based on a subsequent offer of 
employment'' because it is unnecessarily limiting and did not fully 
comport with how the existing 10-day grace period may be used by 
individuals in the H, O and P nonimmigrant visa classifications. DHS is 
adding the phrase ``or otherwise provided status'' after ``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'' to clarify that 
the 10-day grace period may be granted to these nonimmigrants at time 
of admission or upon approval of an extension of stay or change of 
status.
    Moreover, in Sec.  214.1(l)(2), DHS is adding the O-1 
classification to the list of visa classifications for which USCIS will 
not consider an individual to have failed to maintain nonimmigrant 
status for a period of up to 60 days or until the end of the authorized 
validity period, whichever is shorter, solely because of the cessation 
of the employment on which the visa classification was based. In 
addition, DHS is clarifying that the 60-day grace period must be used 
in a single period of consecutive days during the relevant authorized 
validity period. DHS also is changing the phrase ``for a one-time 
period during any authorized validity period,'' to read ``once during 
each authorized validity period'' to clarify that the 60-day grace 
period may be provided to an individual only once per authorized 
validity period. However, an individual may be provided other such 
grace periods if he or she receives a new authorized validity period in 
one of the eligible nonimmigrant classifications. In addition, DHS is 
making other technical revisions to proposed Sec.  214.1(l)(1), (2) and 
(3).
     Duties without licensure. In the final rule, DHS is 
responding to public comment by modifying proposed 8 CFR 
214.2(h)(4)(v)(C), which sets standards for H-1B adjudication absent 
the beneficiary's full licensure. First, DHS is revising proposed 8 CFR 
214.2(h)(4)(v)(C)(1) to expand the evidence USCIS will examine in cases 
where a state allows an individual without licensure to fully practice 
the occupation under the supervision of licensed senior or supervisory 
personnel to include ``evidence that the petitioner is complying with 
state requirements.''
    Second, DHS is expanding the language in Sec.  214.2(h)(4)(v)(C)(2) 
to account for other technical requirements in state or local rules or 
procedures that may, like the lack of a Social Security number or 
employment authorization, pose obstacles to obtaining a license. 
Specifically, in Sec.  214.2(h)(4)(v)(C)(2)(i), DHS is adding the 
phrase ``or met a technical requirement'' following the references to 
the Social Security number and employment authorization. DHS is making 
similar conforming changes in two places in Sec.  
214.2(h)(4)(v)(C)(2)(ii).
    Third, in Sec.  214.2(h)(4)(v)(C)(2)(ii), which discusses the 
petitioner's qualifications for a license, DHS is adding 
``substantive'' in front of the word ``requirements,'' to allow 
flexibility to account for various state specific requirements. DHS is 
adding these clarifications to address other analogous obstacles of 
which DHS is not specifically aware, which present similar situations 
where the beneficiary

[[Page 82403]]

is qualified for licensure, but may not obtain the licensure because of 
a technical requirement.
    In addition, DHS is making technical edits by replacing the use of 
the word ``or'' with ``and'' in the first clause of 8 CFR 
214.2(h)(4)(v)(C)(2)(ii) to reflect that the beneficiary must have 
filed an application for the license in accordance with State and local 
rules and procedures. This does not change the intended meaning of the 
proposed rule. Finally, DHS is making a technical edit in the second 
clause by replacing the use of ``and/or'' with ``or'' preceding 
``procedures.''
     Definitions of non-profit entities related to or 
affiliated with an institution of higher education and governmental 
research organizations. In the final rule, DHS is responding to public 
comment by editing proposed 8 CFR 214.2(h)(8)(ii)(F) and (h)(19), which 
define which entities are (1) nonprofit entities that are related to or 
affiliated with institutions of higher education, and (2) governmental 
research organizations for purposes of the H-1B visa program. H-1B 
nonimmigrant workers who are employed at such entities are exempt from 
the annual limitations on H-1B visas. Such entities are also exempt 
from paying certain fees in the H-1B program.
    At Sec.  214.2(h)(8)(ii)(F)(2), DHS is adding the phrase ``if it 
satisfies any one of the following conditions,'' to clarify that a 
petitioner only has to meet one of the listed requirements. DHS is 
adding the same clarifying language to 8 CFR 214.2(h)(19)(iii)(B). In 
Sec.  214.2(h)(8)(ii)(F)(2)(iv) and (h)(19)(iii)(B)(4), which address 
cap exemption and ACWIA fee exemption, respectively, for a nonprofit 
entity that is related to or affiliated with an institution of higher 
education based on a formal written affiliation agreement, DHS is 
replacing the term ``primary purpose'' with ``fundamental activity'' in 
response to public comments suggesting the term ``primary purpose'' was 
too restrictive. As a result, when a nonprofit entity claims exemption 
from the cap and ACWIA fee based on a formal written affiliation 
agreement with an institution of higher education, the final rule 
requires that ``a fundamental activity'' of the nonprofit entity is to 
directly contribute to the research or education mission of the 
institution of higher education. DHS is also removing the phrase 
``absent shared ownership or control'' from Sec.  214.2 
(h)(8)(ii)(F)(2)(iv) and (h)(19)(iii)(B)(4) to clarify that an entity 
need not prove the absence of shared ownership or control when relying 
on the existence of a formal affiliation agreement to establish that a 
nonprofit entity is related to or affiliated with an institution of 
higher education.
    In addition, DHS is defining the phrase ``governmental research 
organization'' in Sec.  214.2(h)(19)(iii)(C) to include state and local 
government research entities, and not just federal government research 
entities, whose primary mission is the performance or promotion of 
basic research and/or applied research. This definition is adopted for 
cap exemption purposes at 8 CFR 214.2(h)(8)(ii)(F)(3).
     Calculating the maximum H-1B admission period. In the 
final rule, DHS is responding to public comment by revising proposed 8 
CFR 214.2(h)(13)(iii)(C), which discusses how to calculate the time 
spent physically outside the United States during the validity of an H-
1B petition that will not count against an individual's maximum 
authorized period of stay in H-1B status. DHS is amending the 
regulatory text to clarify that there is no temporal limit on 
recapturing time. The amendment makes clear that such time may be 
recaptured in a subsequent H-1B petition on behalf of the foreign 
worker, ``at any time before the alien uses the full period of 
authorized H-1B admission described in section 214(g)(4) of the Act.'' 
DHS also is making a technical edit to Sec.  214.2(h)(13)(iii)(C)(1) to 
clarify which form may be used for this provision.
     Lengthy adjudication delay exemption from section 
214(g)(4) of the Act. In the final rule, DHS is responding to public 
comment by revising several subsections of proposed 8 CFR 
214.2(h)(13)(iii)(D), which governs when a nonimmigrant may be eligible 
for H-1B status in 1-year increments beyond the 6-year limitation that 
otherwise applies. DHS is amending the text of proposed 8 CFR 
214.2(h)(13)(iii)(D)(1) by striking the phrase, ``prior to the 6-year 
limitation being reached.'' This change clarifies that a qualifying 
labor certification or Form I-140 petition is not required to be filed 
365 days before the 6-year limitation is reached in order for the 
individual to be eligible for an exemption under section 106(a) of 
AC21; instead, the labor certification or Form I-140 petition would 
need to be filed at least 365 days before the day the exemption would 
take effect. DHS is also making several revisions to simplify and 
clarify Sec.  214.2(h)(13)(iii)(D)(5), which concerns advance filing; 
Sec.  214.2(h)(13)(iii)(D)(6), which defines petitioners who may seek 
the exemption; Sec.  214.2(h)(13)(iii)(D)(7), which describes 
subsequent exemption approvals after the 7th year; and Sec.  
214.2(h)(13)(iii)(D)(10), which describes limits on future exemptions 
from the lengthy adjudication delay.
     Per country and worldwide limits. In the final rule, DHS 
is responding to public comment by revising proposed 8 CFR 
214.2(h)(13)(iii)(E), which governs when a nonimmigrant may be eligible 
for H-1B status in 3-year increments beyond the 6-year limitation that 
otherwise applies. This provision addresses eligibility for an 
extension of H-1B status under section 104(c) of AC21. DHS is striking 
the phrase, ``the unavailability must exist at time of the petition's 
adjudication'' to reflect longstanding DHS policy. By striking this 
phrase, DHS is clarifying that if the Visa Bulletin that was in effect 
on the date the H-1B petition is filed shows that the individual was 
subject to a per country or worldwide visa limitation, DHS may grant 
the extension under section 104(c) of AC21, even if the immigrant visa 
is available when the petition is adjudicated, so long as the 
beneficiary is otherwise eligible.
     Retaliatory action claims. In the final rule, DHS is 
responding to public comment by amending proposed 8 CFR 214.2(h)(20), 
which discusses eligibility for extensions of stay in H-1B status or 
change of status to other nonimmigrant classifications by beneficiaries 
who faced retaliatory action from their employers. Additionally, DHS is 
making a minor technical change to this section, correcting ``labor 
certification application'' to ``labor condition application.''
     Validity of petition for continued eligibility for 
adjustment of status. In the final rule, DHS is responding to public 
comment by amending proposed 8 CFR 245.25(a), which governs the 
circumstances in which an individual with a pending application for 
adjustment of status can move to a job in the same or a similar 
occupational classification. In particular, revisions are being made to 
implement DHS's current section 204(j) portability policy and 
longstanding practice related to the adjudication of qualifying Form I-
140 petitions that are not approved at the time the beneficiary's 
application for adjustment of status has been pending for 180 days or 
more.
    First, in Sec.  245.25(a), DHS is replacing a general reference in 
the NPRM to a ``USCIS designated form'' with a specific reference to 
``Form I-485 Supplement J'' as the form DHS intends to be used for an 
individual to demonstrate continuing eligibility for adjustment of 
status based on an existing or new job offer under INA 204(j).

[[Page 82404]]

    Second, DHS also is clarifying that the Supplement J may be 
accompanied by ``material and credible documentary evidence, in 
accordance with form instructions.'' This revision expands the types of 
evidence that can be submitted in support of Supplement J beyond 
``material and credible information provided by another Federal agency, 
such as information from the Standard Occupational Classification (SOC) 
system,'' as had been proposed. As a result, DHS is deleting the 
evidentiary list included in proposed Sec.  245.25(b).
    Third, DHS is revising proposed Sec.  245.25(a)(2)(ii) to reaffirm 
that a qualifying Form I-140 petition must be approved before DHS 
examines a portability request under INA 204(j). Moreover, DHS is 
adding Sec.  245.25(a)(2)(ii)(B) to confirm that, unless approval of 
the petition would be inconsistent with a statutory requirement, a 
pending qualifying Form I-140 petition may be approved if (1) the 
petitioner established the ability to pay at the time of filing the 
petition and (2) all other eligibility criteria are met at the time of 
filing and until the beneficiary's application for adjustment of status 
has been pending for 180 days.
    Finally, DHS is reorganizing and renumbering Sec.  245.25(a), and 
making other technical and conforming edits.
     Concurrently filed EAD applications. In the final rule, 
DHS is responding to public comment by amending proposed 8 CFR 
274a.13(a) to facilitate USCIS's ability to notify the public of 
changes in concurrent filing procedures for EAD applications. DHS is 
adding text indicating that USCIS may announce on its Web site 
circumstances in which an EAD application may be filed concurrently 
with a related benefit request that, if granted, would form the basis 
for eligibility for employment authorization. Under the proposed rule, 
such announcement was limited to form instructions.
     Automatic extensions of employment authorization for 
renewal applicants. In the final rule, DHS is responding to public 
comment by amending proposed 8 CFR 274a.13(d) to clarify timeliness and 
termination rules for the automatic extension of certain EAD renewal 
applicants. DHS is clarifying that a renewal EAD application filed on 
the basis of a grant of TPS is timely if filed during the period 
described in the applicable Federal Register notice regarding 
procedures for renewing TPS. DHS is also making clarifying edits to the 
termination provision at Sec.  274a.13(d)(3).
    In addition to the above changes that were made in response to 
public comment, DHS is making several technical changes to the 
regulatory text in this final rule so that DHS regulations better 
reflect current ACWIA fee amounts and filing procedures:
     ACWIA fee amount and filing procedures. DHS is making 
technical changes to 8 CFR 214.2(h)(19)(i), (ii), (v), (vi) and (vii) 
to update the amount of the ACWIA fee applicable to certain H-1B 
petitions in accordance with statutory amendments, as well as 
procedures for submitting the fee to USCIS, or claiming an exemption 
from the fee, to conform with current procedures.\5\ The statutory fee 
amount in INA 214(c)(9), 8 U.S.C. 1184(c)(9), was amended by section 1 
of Pub. L. 106-311 (Oct. 17, 2000) (changing the fee amount from $500 
to $1,000), and the Consolidated Appropriations Act, 2005, Pub. L. 108-
447, Division J, Title IV, sec. 422 (L-1 Visa and H-1B Visa Reform Act) 
(Dec. 8, 2004) (permanently extending the fee and changing the fee 
amount from $1,000 to a bifurcated amount of $1,500 for employers with 
more than 25 employees, and half that amount for those with up to 25 
employees). DHS is updating its regulations to conform the fee amount 
to the figure in current INA 214(c)(9). DHS regulations at 8 CFR 
103.7(b)(1)(i)(CCC) and form instructions for the Petition for a 
Nonimmigrant Worker, Form I-129, already reflect these updated fee 
amounts. The technical changes also reflect the elimination of 
references to the now obsolete Form I-129W, which has been replaced by 
the Form I-129 H-1B and H-1B1 Data Collection and Filing Fee Exemption 
Supplement and which is already being used to make determinations for 
ACWIA fee exemptions.
---------------------------------------------------------------------------

    \5\ DHS finds that prior notice and comment for these technical 
changes is unnecessary, as DHS is merely conforming its regulations 
to the self-implementing statutory amendments. See 5 U.S.C. 
553(b)(B).
---------------------------------------------------------------------------

     Additional entities exempt from the ACWIA fee. DHS is 
making a technical change to 8 CFR 214.2(h)(19)(iii) to include other 
entities that are statutorily exempt from the ACWIA fee, and thus to 
conform the regulation to INA 214(c)(9)(A), 8 U.S.C. 1184(c)(9)(A), as 
amended by section 1 of Pub. L. 106-311. DHS added a new paragraph (D) 
to include primary or secondary educational institutions, and a new 
paragraph (E) to include nonprofit entities that engage in an 
established curriculum-related clinical training of students registered 
at an institution of higher education. The Form I-129 and its form 
instructions already list these entities as fee exempt.

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 
final 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 final rule is found in the 
following sections:
     Section 205 of the INA, 8 U.S.C. 1155, which grants the 
Secretary broad discretion in determining whether and how to revoke the 
approval of any Form I-140 petition approved under section 204 of the 
INA, 8 U.S.C. 1154;
     Section 214 of the INA, 8 U.S.C. 1184, including section 
214(a)(1), 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 research organizations 
or governmental research organizations; (2) that an H-1B nonimmigrant 
who ceases to be employed by a cap-exempt employer, and who was not 
previously counted against the cap, will be subject to the H-1B 
numerical limitations; and (3) that a worker who has been counted 
against

[[Page 82405]]

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 
authorized H-1B admission beyond the general 6-year maximum for H-1B 
nonimmigrant workers who have approved EB-1, EB-2, or EB-3 Form I-140 
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),\6\ 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;
---------------------------------------------------------------------------

    \6\ Section 8(a)(3) of the Trafficking Victims Protection 
Reauthorization Act of 2003, Public Law 108-193, (Dec. 19, 2003), 
redesignated section 214(m) of the INA, 8 U.S.C. 1184(m), as section 
214(n) of the INA, 8 U.S.C. 1184(n).
---------------------------------------------------------------------------

     Sections 106(a) and (b) of AC21, which, as amended, 
authorize the extension of authorized H-1B admission 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 to authorize certain beneficiaries of approved EB-1, EB-2, and EB-3 
Form I-140 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 amendments in this final rule are intended to 
reduce unnecessary disruption to businesses and workers caused by 
immigrant visa backlogs, as described in Section III.C of this 
preamble. The benefits from these 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.\7\ For more information, the 
public may consult the Regulatory Impact Analysis (RIA), which 
addresses the short-term and long-term effects of these regulations. 
The RIA is available in the docket for this rulemaking.
---------------------------------------------------------------------------

    \7\ 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/.
---------------------------------------------------------------------------

    DHS has analyzed potential costs of these regulations and has 
determined that the changes 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. Because some of these petitions are 
filed by sponsoring employers, this rule also has indirect effects on 
employers in the form of employee replacement costs.
    The amendments 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 
foreign workers and U.S. employers participating in those programs. In 
part, the final rule clarifies and improves upon longstanding policies 
adopted in response to the enactment of ACWIA and AC21 to ensure 
greater consistency across DHS adjudications and provide greater 
certainty to regulated employers and workers. These changes 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 changes also benefit the 
regulated community by providing instructive rules governing: (1) 
Extensions of stay for certain H-1B nonimmigrant workers facing long 
delays in the immigrant visa process; (2) 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; (3) the circumstances under which H-1B nonimmigrant workers may 
begin employment with a new employer; (4) the method for counting time 
in status as an H-1B nonimmigrant worker toward maximum periods of 
stay; (5) the entities that are properly considered related to or 
affiliated with institutions of higher education for purposes of the H-
1B program; and (6) the circumstances under which H-1B nonimmigrant 
workers can claim whistleblower protections. The increased clarity 
provided by these rules enhances the ability of certain high-skilled 
workers to take advantage of the job portability and related provisions 
in AC21 and ACWIA.
    The final rule also amends the current regulatory scheme governing 
certain immigrant and nonimmigrant visa programs to further enhance job 
portability for certain workers and improve the ability of U.S. 
businesses to retain highly valued individuals. These benefits are 
achieved by: (1) Revising the provisions affecting the continued 
validity of approved Form I-140 petitions, and retention of priority 
dates of those petitions, for purposes of processing immigrant visas or 
applications for adjustment of status; (2) establishing a means for 
certain nonimmigrant workers with approved Form I-140 petitions to 
directly request separate employment authorization for a limited time 
when facing compelling circumstances; (3) providing grace periods to 
certain nonimmigrants to enhance their ability to seek an authorized 
change of employment; and (4) identifying exceptions to licensing 
requirements applicable to certain H-1B nonimmigrant workers.
    The final rule also amends 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, national security, and 
operational concerns. To prevent gaps in employment for such 
individuals and their employers, the final rule provides 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 final rule also eliminates 
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 final 
rule, which can be found in the docket for this

[[Page 82406]]

rulemaking on regulations.gov. The table below provides a summary of 
the provisions and impacts of this rule.

               Table 1--Summary of Provisions and Impacts
------------------------------------------------------------------------
                                                     Expected impact of
         Provisions                  Purpose           the final rule
------------------------------------------------------------------------
Priority Date...............  Clarifies when a      Quantitative:
                               priority date is      Not
                               established for       estimated.
                               employment-based     Qualitative:
                               immigrant visa        Removes
                               petitions that do     ambiguity and sets
                               not require a labor   consistent priority
                               certification under   dates for affected
                               INA 203(b).           petitioners and
                                                     beneficiaries.
Priority Date Retention.....  Explains that         Quantitative:
                               workers may retain    Not
                               priority dates and    estimated.
                               transfer those       Qualitative:
                               dates to new and      Results in
                               subsequently          administrative
                               approved Form I-140   efficiency and
                               petitions, except     predictability by
                               when USCIS revokes    explicitly listing
                               approval of the       when priority dates
                               petition for:         are lost as the
                               Material error,       approval of the
                               fraud or willful      petitions that are
                               misrepresentation     revoked under these
                               of a material fact,   specific grounds
                               or revocation or      cannot be used as a
                               invalidation of the   basis for an
                               labor certification   immigrant visa.
                               accompanying the
                               petition.
                                                     Improves
                                                     the ability of
                                                     certain workers to
                                                     accept promotions,
                                                     change employers,
                                                     or pursue other
                                                     employment
                                                     opportunities.
Employment-Based Immigrant    Incorporates          Quantitative:
 Visa Petition Portability     statutory            Petitioners -
 Under 204(j).                 portability           Opportunity
                               provisions into       costs of time to
                               regulation.           petitioners for 1-
                                                     year range from
                                                     $126,598 to
                                                     $4,636,448.
                                                    DHS/USCIS--
                                                     Neutral
                                                     because the new
                                                     supplementary form
                                                     to the application
                                                     for adjustment of
                                                     status to permanent
                                                     residence will
                                                     formalize the
                                                     process for USCIS
                                                     requests for
                                                     evidence of
                                                     compliance with INA
                                                     204(j) porting.
                                                    Qualitative:
                                                    Applicants/
                                                     Petitioners--
                                                     Replaces,
                                                     through the
                                                     Supplement J
                                                     standardized form,
                                                     the need for
                                                     individuals to
                                                     submit job offer
                                                     and employment
                                                     confirmation
                                                     letters.
                                                     Provides
                                                     stability and job
                                                     flexibility to
                                                     certain individuals
                                                     with approved
                                                     employment-based
                                                     immigrant visa
                                                     petitions.
                                                     Implements
                                                     the clarifications
                                                     regarding ``same or
                                                     similar
                                                     occupational
                                                     classifications''
                                                     through the new
                                                     Supplement J.
                                                     Allows
                                                     certain foreign
                                                     workers to advance
                                                     and progress in
                                                     their careers.
                                                     Potential
                                                     increased employee
                                                     replacement costs
                                                     for employers.
                                                    DHS/USCIS--
                                                    
                                                     Administrative
                                                     efficiency.
                                                    
                                                     Standardized and
                                                     streamlined
                                                     process.
Employment Authorization for  Provisions allowing   Quantitative: Total
 Certain Nonimmigrants Based   certain               costs over 10-year
 on Compelling Circumstances.  nonimmigrant          period to
                               principal             applicants are:
                               beneficiaries, and    $731.1
                               their dependent       million for
                               spouses and           undiscounted costs.
                               children, to apply    $649.9
                               for employment        million at a 3%
                               authorization if      discounted rate.
                               the principal is a    $565.2
                               beneficiary of an     million at a 7%
                               approved EB-1, EB-    discounted rate.
                               2, or EB-3           Qualitative:
                               immigrant visa       Applicants--
                               petition while        Provides
                               waiting for his or    ability for
                               her immigrant visa    nonimmigrants who
                               to become             have been sponsored
                               available.            for LPR status to
                               Applicants must       change jobs or
                               demonstrate           employers when
                               compelling            compelling
                               circumstances         circumstances
                               justifying an         arise.
                               independent grant
                               of employment
                               authorization.
                                                    
                                                     Incentivizes such
                                                     skilled
                                                     nonimmigrant
                                                     workers
                                                     contributing to the
                                                     economy to continue
                                                     seeking LPR status.
                                                    
                                                     Nonimmigrant
                                                     principal workers
                                                     who take advantage
                                                     of the compelling
                                                     circumstances EAD
                                                     will lose their
                                                     current
                                                     nonimmigrant status
                                                     and may not be able
                                                     to adjust to LPR
                                                     status in the
                                                     United States.
                                                     Consular
                                                     processing imposes
                                                     potentially
                                                     significant costs,
                                                     risk and
                                                     uncertainty for
                                                     individuals and
                                                     their families as
                                                     well.
                                                    Dependents--
                                                     Allows
                                                     dependents to enter
                                                     labor market
                                                     earlier and
                                                     contribute to
                                                     household income.

[[Page 82407]]

 
90-Day Processing Time for    Eliminates            Quantitative:
 Employment Authorization      regulatory            Not
 Applications.                 requirement for 90-   estimated.
                               day adjudication     Qualitative:
                               timeframe and        Applicants--
                               issuance of interim-  Removing a
                               EADs. Adds            regulatory
                               provisions allowing   timeframe and
                               for the automatic     moving to one
                               extension of EADs     governed by
                               for up to 180 days    processing goals
                               for certain workers   could potentially
                               filing renewal        lead to longer
                               requests.             processing times
                                                     whenever USCIS is
                                                     faced with higher
                                                     than expected
                                                     filing volumes. If
                                                     such a situation
                                                     were to occur, this
                                                     could lead to
                                                     potential delays in
                                                     work employment
                                                     start dates for
                                                     first-time EAD
                                                     applicants until
                                                     approval is
                                                     obtained. However,
                                                     USCIS believes such
                                                     scenarios will be
                                                     rare and mitigated
                                                     by the automatic
                                                     extension provision
                                                     for renewal
                                                     applications which
                                                     will allow the
                                                     movement of
                                                     resources in such
                                                     situations.
                                                     Providing
                                                     the automatic
                                                     continuing
                                                     authorization for
                                                     up to 180 days for
                                                     certain renewal
                                                     applicants could
                                                     lead to less
                                                     turnover costs for
                                                     U.S. employers. In
                                                     addition, the
                                                     automatic extension
                                                     provision minimizes
                                                     the applicants'
                                                     risk of any gaps in
                                                     employment
                                                     authorization.
                                                    DHS/USCIS--
                                                     Streamlines
                                                     the application and
                                                     card issuance
                                                     processes.
                                                     Enhances
                                                     the ability to
                                                     ensure all national
                                                     security
                                                     verification checks
                                                     are completed.
                                                     Reduces
                                                     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    Not
 Employment-Based Immigrant    may remain valid      estimated.
 Visa Petitions.               despite withdrawal   Qualitative:
                               by the employer or    Beneficiary
                               termination of the    retains priority
                               employer's business   date unless the
                               after 180 days or     petition is revoked
                               more of approval,     for one of the
                               or 180 days or more   reasons specified
                               after the             in final 8 CFR
                               associated            204.5(e)(2).
                               application for
                               adjustment of
                               status has been
                               filed.
                                                     Affords
                                                     porting ability
                                                     under INA 204(j)
                                                     and extension of H-
                                                     1B status pursuant
                                                     to AC21 sections
                                                     104(c) and 106(a)
                                                     and (b), as well as
                                                     potential
                                                     eligibility for the
                                                     new compelling
                                                     circumstances EAD.
Period of Admission for       Nonimmigrants in      Quantitative:
 Certain Nonimmigrant          certain high-         Not
 Classifications.              skilled,              estimated.
                               nonimmigrant         Qualitative:
                               classifications may   Nonimmigrant Visa
                               be granted grace      Holders--.
                               periods of up to 10   Assists the
                               days before and       beneficiary in
                               after their           getting
                               validity period,      sufficiently
                               and a grace period    settled such that
                               upon cessation of     he or she is
                               employment on which   immediately able to
                               the foreign           begin working upon
                               national's            the start of the
                               classification was    petition validity
                               based, for up to 60   period.
                               days or until the     Provides
                               end of their          time necessary to
                               authorized validity   wrap up affairs to
                               period, whichever     depart the country.
                               is shorter, during
                               each authorized
                               validity period.
                                                     Allows the
                                                     beneficiary to
                                                     maintain
                                                     nonimmigrant status
                                                     when faced with a
                                                     termination of
                                                     employment to wrap
                                                     up affairs, find
                                                     new employment, or
                                                     change to a
                                                     different
                                                     nonimmigrant
                                                     classification.
Portability of H-1B Status    Updates, improves,    Quantitative:
 Calculating the H-1B          and clarifies DHS     Not
 Admission Period Exemptions   regulations           estimated.
 Due to Lengthy Adjudication   consistent with      Qualitative:
 Delays Per Country            policy guidance.      Formalizes
 Limitation Exemptions                               existing DHS policy
 Employer Debarment and H-1B                         in the regulations,
 Whistleblower Provisions.                           which will give the
                                                     public access to
                                                     existing policy in
                                                     one location.
                                                     Clarifies
                                                     current DHS policy
                                                     that there is no
                                                     temporal limit on
                                                     recapturing time.
H-1B Licensing Requirements.  Expands the evidence  Quantitative:
                               USCIS will examine    Not
                               in cases where a      estimated.
                               state allows an      Qualitative:
                               individual without    Provides
                               licensure to fully    additional
                               practice the          flexibilities in
                               relevant occupation   obtaining necessary
                               under the             licensure while
                               supervision of        still permitting H-
                               licensed senior or    1B employment
                               supervisory           during the pendency
                               personnel in that     of state or local
                               occupation to         license
                               include evidence of   applications.
                               compliance with       Helps to
                               state requirements.   relieve the
                               Additionally, USCIS   circular
                               is expanding the      predicament an H-1B
                               possible situations   beneficiary may
                               in which it may       encounter.
                               approve an H-1B
                               petition even
                               though the
                               beneficiary cannot
                               obtain a license
                               for certain
                               technical reasons.

[[Page 82408]]

 
                                                     May
                                                     minimally increase
                                                     time burden for the
                                                     petitioner to
                                                     gather information
                                                     and send it to
                                                     USCIS. However, DHS
                                                     anticipates that
                                                     the benefits to the
                                                     petitioner and
                                                     beneficiary exceed
                                                     the opportunity
                                                     costs of time.
                                                     May
                                                     increase
                                                     opportunity costs
                                                     of time for USCIS
                                                     adjudicators to
                                                     evaluate additional
                                                     evidence in such
                                                     types of cases.
                                                     However, DHS does
                                                     not anticipate that
                                                     the opportunity
                                                     costs of time will
                                                     be so substantial
                                                     as to warrant
                                                     additional hiring
                                                     of staff or cause
                                                     significant
                                                     adjudication
                                                     delays.
Exemptions to the H-1B        Codifies definition   Quantitative:
 Numerical Cap, Revised        of ``institution of   Not
 Definition of ``Related or    higher education''    estimated.
 Affiliated Nonprofit          and adds a broader   Qualitative:
 Entity'' in the ACWIA Fee     definition of         Clarifies
 Context, and Expanded         ``related or          the requirements
 Interpretation of             affiliated            for a nonprofit
 ``Governmental Research       nonprofit entity.''   entity to establish
 Organizations.''.             Also, revises the     that it is related
                               definition of         to or affiliated
                               ``related or          with an institution
                               affiliated            of higher
                               nonprofit entity''    education.
                               for purposes of the   Better
                               ACWIA fee to          reflects current
                               conform it to the     operational
                               new definition of     realities for
                               the same term for H-  institutions of
                               1B numerical cap      higher education
                               exemption. Expands    and how they
                               the interpretation    interact with, and
                               of ``governmental     sometimes rely on,
                               research              nonprofit entities.
                               organizations'' for
                               purposes of the
                               ACWIA fee and
                               aligns definitions
                               for H-1B cap and
                               fee exemptions.
                                                     Clarifies
                                                     the interpretation
                                                     of governmental
                                                     research
                                                     organizations to
                                                     include federal,
                                                     state, and local
                                                     governmental
                                                     organizations.
                                                     May expand
                                                     the numbers of
                                                     petitioners that
                                                     are cap exempt and
                                                     thus allow certain
                                                     employers greater
                                                     access to H-1B
                                                     workers.
------------------------------------------------------------------------

III. Background

A. 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.\8\ See section 411 of ACWIA (amending 
INA 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.'') \9\
---------------------------------------------------------------------------

    \8\ Section 102(a) of AC21 further amended INA 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. In fiscal year 2004 the 
annual H-1B numerical cap reverted to 65,000.
    \9\ 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 
ACWIA provided enhanced penalties for employer violations of Labor 
Condition Application (LCA) obligations as well as willful 
misrepresentations by employers in LCAs. See ACWIA 413 (creating INA 
212(n)(2)(C), codified at 8 U.S.C. 1182(n)(2)(C)). 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 
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 illegal retaliation, and 
are otherwise eligible to remain and work in the United States, to seek 
other appropriate employment in the United States. See INA 
212(n)(2)(C)(v), 8 U.S.C. 1182(n)(2)(C)(v).
    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 414 (creating INA 214(c)(9), codified at 8 
U.S.C. 1184(c)(9)). Although initially scheduled to sunset, the ACWIA 
fee was eventually made permanent by 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. That later enactment also established the 
current fee amounts of $1,500 per qualifying petition, or $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). Congress in the interim had amended 
section 214(c)(9)(A) of the INA, 8 U.S.C. 1184(c)(9)(A), by specifying 
additional

[[Page 82409]]

employers that are exempt from the ACWIA fee. See Act of Oct. 17, 2010, 
Public Law 106-311. Exempt employers include primary and secondary 
education institutions, certain institutions of higher education and 
related or affiliated nonprofit entities, nonprofit entities engaged in 
curriculum-related clinical training, and nonprofit research 
organizations or governmental research organizations. See INA 
214(c)(9)(A), 8 U.S.C. 1184(c)(9)(A).
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 to improve the U.S. economy in the short and long 
term. First, AC21 sought to improve economic growth and job creation by 
immediately increasing U.S. 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 section 
111 of AC21. 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 improving both the 
employment-based immigrant visa process and the H-1B specialty 
occupation worker program.
i. AC21 Provisions Relating to Employment-Based Immigrant Visas
    AC21 contained several provisions designed to improve access to 
employment-based immigrant visas for certain workers. Section 104 of 
AC21, for example, sought to ameliorate the impact of the ``per-country 
limitations,'' which 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 immigrant visas. See INA 202(a)(2), 8 
U.S.C. 1152(a)(2). Sections 104(a) and (b) of AC21 amended the INA to 
effectively waive application of the per-country limitations when such 
application would result in immigrant visas going unused in any quarter 
of the fiscal year. See AC21 104(a) and (b) (amending INA 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.'' See 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 Form I-140 
petitions. Specifically, section 104(c) of AC21 authorized the 
extension of H-1B status beyond the statutory 6-year maximum for such 
individuals if immigrant visas 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 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 Form I-140 petitions. Sections 106(a) and (b) 
of AC21, as amended by section 11030A of the 21st Century Department of 
Justice Appropriations Authorization 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 214(g)(4), if 365 days or more have elapsed since the 
filing of a labor certification application (if such certification is 
required under INA 212(a)(5), 8 U.S.C. 1182(a)(5)), or a Form I-140 
petition under INA 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 Form I-140 petition. See S. Rep. No. 260, 
at 23.
    Finally, to provide stability and flexibility to beneficiaries of 
approved Form I-140 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 positions in 
the immigrant visa queue. Specifically, section 106(c) of AC21 provides 
that certain Form I-140 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 106(c) 
(creating INA 204(j)). The new job offer must be in the same or a 
similar occupational classification as the job for which the original 
Form I-140 petition was filed. Id.
ii. AC21 Provisions Seeking To Improve the H-1B Nonimmigrant Worker 
Classification
    As noted above, one of the principal purposes for the enactment of 
AC21 was to improve the country's access to high-skilled workers. AC21 
therefore contains several additional provisions intended to expand and 
strengthen the H-1B program.
a. 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 organization or governmental research organization. 
See INA 214(g)(5)(A) and (B); 8 U.S.C. 1184(g)(5)(A) and (B). Congress 
deemed such employment advantageous to the United States, based on the 
belief that increasing the number of high-skilled foreign nationals 
working 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

[[Page 82410]]

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.
    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'')).\10\ See INA 214(g)(5)(A), 8 U.S.C. 
1184(g)(5)(A). Due to the lack of statutory definitions, DHS defined 
the terms ``related or affiliated nonprofit entity,'' and ``nonprofit 
research organization or governmental research organization'' at 8 CFR 
214.2(h)(19)(iii)(B) and (C), respectively, and adopted these 
definitions as a matter of interpretation in the cap exemption 
context.\11\
---------------------------------------------------------------------------

    \10\ 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 [20 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.
    \11\ 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)'' (June 6, 2006) (``Aytes Memo 
June 2006'') at 2-4.
---------------------------------------------------------------------------

b. 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 again being 
counted 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 shall 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 214(g)(7), 8 U.S.C. 
1184(g)(7). In addition, an individual previously in the United States 
in 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. Id.
    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. 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 214(g)(6), 
8 U.S.C. 1184(g)(6).
c. 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, nonfrivolous H-1B petition. See 
INA 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 after the lawful admission, and must be in a 
period of stay authorized by the Secretary.\12\ Employment 
authorization based on the pending petition continues until 
adjudication. See INA 214(n)(1), 8 U.S.C. 1184(n)(1). If the H-1B 
petition is denied, the employment authorization provided under this 
provision ceases. Id. Congress created 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.
---------------------------------------------------------------------------

    \12\ 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 May 2009 Memo'') (describing various ``periods of 
authorized stay''), available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF.
---------------------------------------------------------------------------

B. Processing 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., INA sections 103(a) and 274A(h)(3)(B), 8 U.S.C. 1103(a) and 
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 as to the location of 
their employment or the type of employment they may accept. In many 
cases, their immigration status and attendant employment authorization 
is evidenced by the Arrival-Departure Record (Form I-94). Those 
individuals seeking to obtain an EAD that contains not only evidence of 
employment authorization, but also 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 
employment authorized incident to their nonimmigrant status, but each 
individual's employment authorization is valid only with a specific 
employer. Individuals in this second group do not file separate 
requests for evidence of employment authorization and are not generally 
issued EADs. These individuals instead obtain a Form I-94 indicating 
their nonimmigrant status and attendant 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. This employment authorization 
is subject to the restrictions described in the regulations for the 
specific employment eligibility category. Generally, the approval of an 
EAD application by an individual described in 8 CFR 274a.12(c) is 
within the discretion of USCIS. There is no right to appeal the denial 
of an EAD application. See 8 CFR 274a.13(c).
    Individuals requesting an EAD must file Form I-765 with USCIS in 
accordance with the form instructions. See 8 CFR 274a.13. Under current 
regulations, if USCIS does not adjudicate the Form I-765 within 90 days 
from the date USCIS receives the application, the applicant will be 
granted an interim document evidencing employment authorization

[[Page 82411]]

with a validity period not to exceed 240 days. See 8 CFR 274a.13(d).

C. The Increasing Challenges Caused by Immigrant Visa Backlogs

    The final rule addresses in part some of the challenges that flow 
from the statutory limits on immigrant visas, consistent with existing 
DHS authorities. The number of employment-based immigrant visas 
statutorily 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 size of the U.S. 
economy, as measured by U.S. gross domestic product (GDP), increased by 
about 83 percent since 1990, rising from $8.955 trillion in 1990 to 
$16.397 trillion in 2015.\13\ Over the same period, GDP per capita 
increased by just over 42 percent, rising from $35,794 in 1990 to 
$50,970 in 2015.\14\ The number of entities doing business in the 
United States increased by at least 24 percent during the same 
period.\15\ Over the same period, employer demand for immigrant visas 
has increasingly outpaced supply in some categories and for some 
nationalities, resulting in growing waits for some sponsored employees 
to obtain their LPR status. Such delays have resulted in substantial 
inequalities and other hardships flowing from limits on the ability of 
sponsored workers to change employment to enhance their skills, to 
accept promotions, or to otherwise change their positions. Since AC21 
was enacted in October of 2000, certain workers seeking LPR status in 
the United States have faced increasing challenges as a consequence of 
the escalating wait times for immigrant visas. Numerical limitations in 
the various employment-based preference categories, combined with the 
per-country limitations that further reduce visa availability to 
certain workers, has produced significant oversubscription in the EB-2 
and EB-3 categories, particularly for individuals born in India and 
China. This oversubscription results in substantial delays in obtaining 
LPR status for many workers, especially for workers from oversubscribed 
countries who can face delays that extend for more than a decade.\16\
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    \13\ 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.
    \14\ 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.
    \15\ 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/.
    \16\ According to the Visa Bulletin for November 2016, immigrant 
visas are currently issuable to all persons qualifying under the EB-
1 preference category. The EB-2 category Application Final Action 
date cutoff is current for all countries except for China and India; 
the cutoff date for China is July 15, 2012 and the cutoff date for 
India is November 1, 2007, meaning nationals of these countries may 
have to wait 4 to 9 years for a visa to be authorized for issuance. 
The Application Final Action cut-off dates for nationals of most 
countries under the EB-3 preference category are set at July 1, 2016 
(a wait of less than five months). But for EB-3 Indian nationals, 
the Application Final Action cutoff dates are set at March 8, 2005 
(a wait of more than 10 years) and EB-3 cutoff dates for Chinese 
nationals are set at April 15, 2013 (a wait of more than 3 years). 
See Visa Bulletin for November 2016, https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2017/visa-bulletin-for-november-2016.html.
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    AC21 was enacted as a response to the long and growing delays for 
many beneficiaries of Form I-140 petitions, to ameliorate the 
detrimental impact of such delays on the U.S. economy, U.S. businesses, 
and affected workers themselves. Those delays, however, have grown 
substantially longer than those that existed at the time AC21 was 
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 for certain individuals.\17\ DHS recognizes the 
resulting realities confronting individuals seeking employment-based 
permanent residence who, due to immigrant visa unavailability, are 
required to wait many years for visas 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 allow them to progress substantially in their careers.
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    \17\ According to the 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.
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    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 the 
pursuit of an immigrant visa altogether if they do not have another 
Form I-140 petition filed on their behalf. When such a worker changes 
employers or jobs--including a change to an identical job with a 
different employer or to a new but related job for the same employer--
the worker is typically subject to uncertainty as to whether USCIS will 
approve his or her application for LPR status based on the change. 
Moreover, these individuals must consider whether such changes would 
involve expensive additional immigration processes, greatly 
discouraging them. 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 an approved 
immigrant visa, loss of the ability to obtain an immigrant visa or 
adjust to LPR status, or 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. 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 
integrating into American society.

[[Page 82412]]

IV. Discussion of Comments

A. Overview of the Comments

    During the 60-day public comment period, DHS received 27,979 
comments offering a wide variety of opinions and recommendations on the 
NPRM and related forms. A range of entities and individuals submitted 
comments, including nonimmigrants seeking to become LPRs, U.S. workers, 
schools and universities, employers, labor organizations, professional 
organizations, advocacy groups, law firms and attorneys, and nonprofit 
organizations.
    Many commenters expressed support for the rulemaking, in whole or 
in part. Supporters of the proposed rule agreed that it would help the 
United States attract and retain high-skilled foreign workers and would 
provide some relief to nonimmigrants and their families during their 
transition to LPR status. In particular, these commenters approved of 
the proposals to retain priority dates for the beneficiaries of 
immigrant visa petitions; provide grace periods of up to 60 days for 
certain high-skilled nonimmigrant workers to enhance job portability; 
extend grace periods of up to 10 days for certain high-skilled 
nonimmigrant workers so that they may more easily change or extend 
their nonimmigrant status; and codify guidance on counting previously 
exempt workers under nonimmigrant visa caps, as well as policies 
determining admission periods for such workers. Some commenters who 
generally supported the proposals also suggested changes to certain 
provisions.
    Other commenters opposed the proposed rule for different reasons. 
Some commenters who opposed the proposed rule questioned DHS's legal 
authority to promulgate some of the regulatory changes contained 
therein. A substantial number of other commenters, however, objected to 
the proposed rule because they believed many proposed changes should 
and could be more expansive. Such commenters, for example, believed 
that the rule should have substantially broadened the criteria for 
obtaining independent employment authorization for beneficiaries of 
immigrant visa petitions, rather than limiting such a benefit to cases 
involving compelling circumstances. Many commenters who opposed the 
rule were intending immigrants who described their personal experiences 
to illustrate how they would have been helped by the additional changes 
they requested. Some commenters argued that the proposed rule did 
nothing more than codify existing policies and that DHS could have gone 
further under existing statutory authorities.
    A number of other comments were opposed to the proposed rule based 
on generalized concerns about its impact on the U.S. economy. Some 
commenters were concerned that this rule may facilitate the 
displacement of American workers in certain sectors of the U.S. 
economy, such as in the information technology sector. Other commenters 
were concerned that the rule could facilitate the displacement of U.S. 
workers and a decrease in wages for U.S. citizen workers. One commenter 
opposing the proposed rule advocated for developing U.S. citizens' 
employment skills to enable them to have more employment opportunities.
    Others submitted comments related to the potential for fraud or to 
perceived irregularities in the rulemaking process. Commenters, for 
example, expressed concern that this rule could increase the potential 
for fraud and abuse, particularly by employers seeking to take 
advantage of the immigration system. Commenters also expressed concern 
that the substance of the rulemaking was unduly affected by a former 
lobbyist. Other commenters were concerned that provisions in the 
proposed rule would provide greater financial benefits to immigration 
attorneys and to USCIS than to the foreign workers who are the subject 
of the rule.
    Finally, DHS received a number of comments that were beyond the 
scope of this rulemaking. For example, several commenters asked DHS to 
include provisions creating new immigration benefits for inventors, 
researchers, and founders of start-up enterprises, a proposal that was 
not raised in the NPRM and some of which is the subject of a different 
rulemaking.\18\ Other commenters focused on the U.S. political climate 
without addressing the proposed rule. Similarly, some submitted 
comments on the merits of other commenters' views without providing 
their own views on the proposal itself.
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    \18\ See International Entrepreneur Rule, 81 FR 60129 (Aug. 31, 
2016).
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    DHS has reviewed all of the public comments received in response to 
the proposed rule and thanks the public for its extensive input during 
this process. In the discussion below, DHS summarizes and responds to 
all relevant comments that were timely submitted on the NPRM, which are 
grouped by subject area.

B. Authority of DHS To Administer and Enforce Immigration Laws

1. Description of DHS's Legal Authority
    As discussed at length in section II.B. above, the authority of the 
Secretary for these regulatory amendments is found in various sections 
of the INA, ACWIA, AC21, and the HSA. General authority for issuing the 
final 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. Other sections of 
the INA, together with ACWIA and AC21, provide specific statutory 
authority for multiple provisions of the final rule as detailed in 
section III.A of this preamble. DHS notes that, to the extent some of 
the commenters' requests for changes require action from Congress or 
other Departments, the Department lacks the authority to adopt these 
changes. DHS believes that this final rule improves upon existing 
policies and provides additional flexibilities consistent with DHS's 
existing authority to administer the U.S. immigration system under the 
relevant statutes passed by Congress.
2. Public Comments and Responses
    Comment. Many commenters opposed the rule based on what they 
perceived to be insufficient legal authority supporting the proposed 
changes. Many of these commenters asserted that the provisions in this 
rule were tantamount to new immigration legislation and that the rule 
thus effected an ``unconstitutional'' circumvention of Congress' role 
to establish the immigration laws. A few commenters claimed that only 
certain discrete proposals included in this rule are beyond DHS's legal 
authority.
    Response. DHS maintains that each proposed revision in this rule is 
fully within DHS's statutory authority. Section 103(a) of the INA, 8 
U.S.C. 1103(a), expressly vests the Secretary with broad authority to 
administer and enforce the immigration laws, including by establishing 
regulations or prescribing such forms as necessary to carry out this 
authority. Additionally, section 102 of the HSA 6 U.S.C. 112, vests all 
of the functions of DHS in the Secretary and authorizes the Secretary 
to issue regulations.
    This rulemaking reflects the lawful exercise of statutory authority 
delegated by Congress. In the preamble to this final rule, DHS has 
identified the statutory authorities for all of the

[[Page 82413]]

revisions being made, including various provisions of the INA, the HSA, 
ACWIA and AC21. Through this rulemaking, DHS is exercising its 
authority to promulgate regulations as necessary to properly implement 
and administer existing immigration laws. As such, this final rule will 
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 DHS policy related to affected classifications.
    Comment. Several commenters questioned the general basis for 
various immigration actions taken by the Executive Branch related to 
businesses and high-skilled workers. These commenters believed that the 
Executive Branch has exceeded its role by taking it upon itself to 
``achieve something that [C]ongress has failed to do.''
    Response. As noted above, DHS has the requisite legal authority to 
issue this final rule. In enacting the INA, ACWIA, AC21, and the HSA, 
Congress accorded DHS the responsibility for implementing and 
administering these laws. Consistent with that authority, DHS is 
promulgating this final rule to further define and clarify existing 
statutory requirements. With this final rule, DHS is also responding to 
a specific directive from the Secretary to strengthen and improve 
various employment-based visa programs within the Department's existing 
legal authority,\19\ including to ``consider amending its regulations 
to ensure that approved, longstanding visa petitions remain valid in 
certain cases where the beneficiaries seek to change jobs or 
employers.'' \20\ These executive actions do not impinge on Congress's 
legislative role.
---------------------------------------------------------------------------

    \19\ See Memo from Jeh Charles Johnson, Secretary of Homeland 
Security, ``Policies Supporting U.S. High-Skilled Business and 
Workers'' (Nov. 20, 2014)(Secretary Johnson Nov. 20, 2014 memo), 
available at http://www.dhs.gov/sites/default/files/publications/14_1120_memo_business_actions.pdf.
    \20\ Id.
---------------------------------------------------------------------------

    Comment. Commenters stated that this rule would effectively 
increase the number of immigrant visas issued in excess of their 
respective annual caps. These commenters also expressed concern that 
the rule would increase the number of H-1B workers who would be cap-
exempt. Specifically, commenters stated that this rule circumvents 
overall caps on authorized visas through a two-step process: (1) 
Authorizing an unlimited number of individuals to seek permanent 
residence in excess of the cap on immigrant visas; and (2) giving these 
individuals (and their spouses and children) employment authorization 
while they wait for their immigrant visas to become available. For 
example, one commenter stated that the rule would ``nullify[ ] 
Americans' statutory protections against job-threatening flows of 
excess foreign labor.'' Other commenters believed that the perceived 
increase in the number of visas that would be issued under this rule 
reflects the Administration's favoring of skilled immigrant workers 
over natural-born U.S. citizens. One commenter claimed that the 
proposal to allow an H-1B worker whose employer has applied for LPR 
status on the worker's behalf to stay and work in the United States 
beyond the 6-year limit violates the Constitution, including by 
``waiv[ing] federal law without action of the Congress of the United 
States.'' Additionally, one commenter expressed concern that the 
proposed changes would allow foreign workers in the United States on 
expired H-1B visas to extend their stay indefinitely by applying for 
employment-based LPR status. The commenter stated that this was an 
impermissible change because Congress is responsible for setting the 
annual limits on H-1B visas.
    Response. DHS is not modifying immigrant or nonimmigrant numerical 
limits set forth in the INA and is not changing the classes of foreign 
workers who qualify for employment-based immigrant or nonimmigrant 
visas. Contrary to commenters' statements, the provisions contained in 
this rule reflect a clear congressional mandate with respect to H-1B 
beneficiaries who are pursuing LPR status, but face long waits due to 
backlogs resulting from the statutory limits on immigrant visas or 
certain other adjudication or processing delays. Through the enactment 
of AC21, Congress authorized these individuals to remain in the United 
States beyond their initial 6-year period of authorized admission. See 
AC21 104(c) and 106(a) and (b).
    Finally, with regard to the concerns about this rule increasing the 
number of H-1B visas that are exempt from the annual limit, DHS notes 
that, for the most part, this regulation codifies longstanding policy 
and practice implementing the relevant provisions of AC21. This rule 
generally codifies already existing policy interpretations identifying 
which employers are cap-exempt under the H-1B program and DHS also 
includes revised definitions of ``related or affiliated nonprofit 
entity'' and ``governmental research organizations'' to clarify certain 
terms and to avoid confusion. See IV, part J. In particular, although 
the revised definitions may expand the number of petitioners that are 
cap-exempt, DHS believes that the changes improve current policy by 
better reflecting current operational realities for institutions of 
higher education and governmental research organizations, and are 
consistent with the exemption enacted by Congress. In addition, DHS 
added a provision that will protect against indefinite H-1B extensions 
under section 106(a) of AC21. See 8 CFR 214.2(h)(13)(iii)(D)(10).
    Additionally, DHS is not providing compelling circumstances 
employment authorization to an unlimited number of foreign workers and 
their dependents while they wait for immigrant visas to become 
available. Rather, DHS is allowing certain high-skilled nonimmigrant 
workers and their dependents, who are all on the path to LPR status, to 
apply for independent and temporary employment authorization if they 
meet certain criteria, including demonstrating that the workers need 
such employment authorization due to compelling circumstances. While 
some of the dependents of these individuals may not have been part of 
the workforce at the time they receive such employment authorization, 
they would eventually become part of the workforce even without this 
separate employment authorization as they are already on the path to 
permanent residence. See Section IV, part F of this preamble for a 
discussion of compelling circumstances employment authorization.

C. Immigration Fraud and National Security Concerns

1. Description of Final Rule and Changes From the NPRM
    DHS's core responsibilities include enhancing homeland security and 
preventing terrorism, enforcing and administering the immigration laws, 
and ensuring the integrity of the immigration system.\21\ When drafting 
this rule, DHS carefully considered the impact of the proposed 
regulatory provisions on the safety and security of our nation and the 
integrity of the immigration system. DHS believes that the regulations 
as proposed appropriately address these concerns and further believes 
that this final rule will not compromise its vigilance.
---------------------------------------------------------------------------

    \21\ See https://www.dhs.gov/our-mission.
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2. Public Comments and Responses
    Comment. Several commenters raised concerns about terrorism 
stemming from foreign nationals in various immigration statuses, and 
the adequacy of

[[Page 82414]]

background checks for those seeking to acquire immigration status.
    Response. DHS takes its core mission to safeguard the homeland 
extremely seriously, and it has a number of mechanisms in place to 
detect fraud and security threats. Individuals requesting immigration 
benefits from USCIS are subject to a variety of background and security 
checks, which vary depending on the benefit. USCIS created the Fraud 
Detection and National Security Directorate (FDNS) in part to 
investigate whether individuals or organizations filing for immigration 
benefits pose a threat to national security, public safety, or the 
integrity of the immigration system. FDNS officers resolve background 
check information and other concerns that surface during the processing 
of immigration benefit applications and petitions. Resolution of 
specific questions related to an application or petition often requires 
communication with law enforcement or intelligence agencies to make 
sure that the information pertains to the applicant or petitioner and 
to determine whether the information would have an impact on his or her 
eligibility for the benefit. FDNS officers also check various databases 
and public information, as well as conduct other administrative 
inquiries, including pre- and post-adjudication site visits, to verify 
information provided on, and in support of, applications and petitions. 
FDNS uses the Fraud Detection and National Security Data System (FDNS-
DS) to identify fraud and track potential patterns. In addition, FDNS 
routinely works with U.S. Immigration and Customs Enforcement (ICE), 
U.S. Customs and Border Protection (CBP), and other law enforcement and 
intelligence agencies, consistent with all relevant policies on 
information sharing and referrals.\22\
---------------------------------------------------------------------------

    \22\ Individuals may report suspicious activity to ICE Homeland 
Security Investigations at www.ice.gov/webform/hsi-tip-form or at 
(866) 347-2423.
---------------------------------------------------------------------------

    Comment. DHS received several comments concerning alleged fraud in 
the EB-1, H-1B, and L-1 visa programs, including falsification of 
worker qualifications and other misuses. These commenters requested 
that additional measures be taken to combat fraud.
    Response. DHS continually seeks to strengthen its abilities to 
detect and combat immigration-related fraud. Possible consequences for 
fraud already include detention and removal, inadmissibility to the 
United States, ineligibility for naturalization and other benefits, and 
criminal prosecution. See, e.g., INA 101(f), 204(c), 212(a)(2) and 
(a)(6), 236(c), 237(a)(1)(A) and (G), (a)(2) and (a)(3), 316(a), 318, 8 
U.S.C. 1101(f), 1154(c), 1182(a)(2) and (a)(6), 1226(c), 1227(a)(1)(A) 
and (G), (a)(2) and (a)(3), 1427(a), 1429. USCIS adjudicators receive 
training to recognize potential fraud indicators across all benefit 
types and the guidelines for referring cases of suspected fraud for 
further investigation.
    Additionally, as provided under section 214(c)(12) of the INA, 8 
U.S.C. 1184(c)(12), a Fraud Prevention and Detection Fee must be paid 
by an employer petitioning for a beneficiary's initial grant of H-1B or 
L nonimmigrant classification, as well as for a beneficiary who is 
changing employers within these classifications. The INA requires fees 
deposited into the Fraud Prevention and Detection Account to be divided 
into thirds, and allocated to DHS, DOL, and DOS. See INA 286(v); 8 
U.S.C. 1356(v). DHS uses its portion of the fees to support activities 
related to preventing and detecting fraud in the delivery of all 
immigration benefit types.\23\
---------------------------------------------------------------------------

    \23\ Further information about USCIS use and collection of fees 
can be found in March 2015 Congressional testimony available at 
https://www.uscis.gov/tools/resources-congress/presentations-and-reports/oversight-us-citizenship-and-immigration-services-ensuring-agency-priorities-comply-law-senate-committee-judiciary-subcommittee-immigration-and-national-interest-march-2015.
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    Additionally, FDNS currently combats fraud and abuse across all 
benefit types--including the EB-1, EB-2, EB-3, H-1B, and L-1 programs--
by developing and maintaining efficient and effective anti-fraud and 
screening programs, leading information sharing and collaboration 
activities, and supporting the law enforcement and intelligence 
communities. As mentioned above, FDNS's primary mission is to determine 
whether individuals or organizations requesting immigration benefits 
pose a threat to national security, public safety, or the integrity of 
the nation's immigration system. USCIS verifies information and combats 
immigration fraud using various tools, including the Administrative 
Site Visit and Verification Program (ASVVP), under which FDNS conducts 
compliance review site visits for petitions in the H-1B, L-1, and 
religious worker programs. USCIS also conducts checks of various USCIS 
and other databases, including the FDNS-DS and the Validation 
Instrument for Business Enterprises (VIBE). USCIS has formed a 
partnership with ICE, under which FDNS pursues administrative inquiries 
into most application and petition fraud and ICE conducts criminal 
investigations into major fraud conspiracies. Individuals with 
information regarding fraud and abuse in the immigration benefits 
system are encouraged to contact FDNS at reportfraudtips@uscis.dhs.gov, 
by mail at 111 Massachusetts Ave. NW., Ste. 7002, Mail Stop 2280, 
Washington, DC 20529-2280, or call (202) 529-2280.
    DHS believes that existing rules and measures collectively provide 
adequate tools to detect and combat fraud and abuse, and that this 
rulemaking does not require new or additional protections. Accordingly, 
DHS has not made any changes in response to these comments.

D. Petitions for Employment-Based Immigrants and Priority Date 
Retention

1. Description of Final Rule and Changes From the NPRM
    The final rule clarifies when priority dates are established for 
employment-based immigrants and expands the ability of beneficiaries of 
approved Form I-140 petitions in the EB-1, EB-2, and EB-3 categories to 
retain their priority dates for use with subsequently filed Form I-140 
petitions. First, the final rule fills a hole in current regulations. 
Existing regulations establish that the priority date of an employment-
based immigrant visa petition accompanied by a labor certification is 
established when the labor certification is accepted for processing by 
DOL. Those regulations, however, do not indicate when the priority date 
is established for an employment-based petition that is not accompanied 
by a labor certification. To provide further clarity, this final rule 
provides, generally, that the priority date of a Form I-140 petition 
that does not require a labor certification is the date such petition 
is properly filed with USCIS. See final 8 CFR 204.5(d).
    Second, the final rule disallows retention of the priority date of 
an approved Form I-140 petition if the approval of the petition is 
revoked because of fraud, willful misrepresentation of a material fact, 
the invalidation or revocation of a labor certification, or material 
error. See final 8 CFR 204.5(e). Third, the final rule amends existing 
automatic revocation regulations to prevent Form I-140 petitions that 
have been approved for 180 days or more from being automatically 
revoked based solely on the withdrawal of the petition by the 
petitioner or the termination of the petitioner's business. See final 8 
CFR 205.1(a)(3)(iii)(C) and (D). In response to comments, the final 
rule also prevents automatic revocation of approved petitions that are 
withdrawn or where

[[Page 82415]]

the business terminates 180 days after an associated adjustment of 
status application is filed. See id. These approved petitions will 
continue to be valid for priority date retention purposes, unless 
approval is revoked on other grounds specified in final 8 CFR 
204.5(e)(2).\24\ They also generally will remain valid for various 
other purposes under immigration laws including: (1) Job portability 
under INA section 204(j); (2) extensions of status for certain H-1B 
nonimmigrant workers under sections 104(c) and 106(a) and (b) of AC21; 
and (3) eligibility for employment authorization in compelling 
circumstances under final 8 CFR 204.5(p).
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    \24\ The four grounds are (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; and (iv) a determination by USCIS that 
petition approval was based on a material error.
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    In addition, the final rule clarifies that an approved Form I-140 
petition that is subject to withdrawal or business termination cannot 
on its own serve as a bona fide employment offer related to the 
petition. See final 8 CFR 205.1(a)(3)(iii)(C) and (D). To obtain an 
immigrant visa or adjust status, beneficiaries of these petitions must 
have either new Form I-140 petitions filed on their behalf, or, if 
eligible for job portability under section 204(j) of the INA, new 
offers of employment in the same or a similar occupational 
classification. See id.; final 8 CFR 245.25(a)(2).
    DHS believes these regulatory changes are critical to fully 
implementing the job portability provisions of AC21. Therefore, the 
final rule retains these proposals with minor modifications to reflect 
public comment summarized below.
2. Public Comments and Responses
i. Establishing a Priority Date
    Comment. Several commenters supported the proposed clarification of 
the methods for establishing priority dates.
    Response. DHS agrees with commenters and believes such 
clarification will provide increased transparency and certainty for 
stakeholders. As noted above, the final rule generally establishes that 
the priority date of an employment-based immigrant visa petition that 
does not require a labor certification is the date on which such 
petition is appropriately filed with USCIS. See final 8 CFR 204.5(d). 
Given commenters' support of this provision, DHS adopts this provision 
as proposed, including the proposed technical edits to delete obsolete 
references and otherwise improve the readability of the rule. Id.
ii. Retaining a Priority Date
    Comment. Some commenters stated that the policy that provides for 
the retention of priority dates in cases in which an employer withdraws 
an approved petition already existed before this rulemaking. Those 
commenters suggested that the rule thus provides no additional benefits 
to such beneficiaries as they await adjustment of status.
    Response. DHS believes the final rule clarifies and expands the 
ability of beneficiaries of approved EB-1, EB-2, and EB-3 Form I-140 
petitions to retain their priority dates for use with subsequently 
filed EB-1, EB-2, and EB-3 Form I-140 petitions. See final 8 CFR 
204.5(e). The prior regulations disallowed priority date retention in 
all instances in which approval of a Form I-140 petition was revoked. 
Thus, under the prior regulations, revocation of a Form I-140 petition 
based on withdrawal by the petitioner would have prevented the 
beneficiary of the petition from retaining his or her priority date. 
The NPRM proposed to change the prior regulations so that the 
beneficiary of a Form I-140 petition can retain the priority date of 
that petition unless USCIS denies the petition or revokes the 
petition's approval due to: (1) Fraud or a willful misrepresentation of 
a material fact; (2) revocation or invalidation of the labor 
certification associated with the petition or (3) a determination that 
there was a material error with regards to USCIS's approval of the 
petition. See final 8 CFR 204.5(e)(2).
    This change expands the ability of beneficiaries to retain the 
priority dates of approved Form I-140 petitions, including but not 
limited to when a petition's approval is revoked based solely on 
withdrawal of the petition. This provision improves the ability of 
certain workers to accept promotions, change employers, or pursue other 
employment opportunities without fear of losing their place in line for 
certain employment-based immigrant visas.
    Comment. Although many commenters supported the retention of 
priority dates, one commenter objected to the retention of the earliest 
priority date in cases in which a worker is shifting between 
employment-based immigrant visa (EB) preference categories. The 
commenter believed the provision was unfair to individuals who have 
been waiting in those EB preference queues. The commenter did not 
believe it was fair to have an individual who is recently entering a 
specific queue to receive a better position than an individual who has 
been waiting in that queue for some time, even if the former individual 
has been waiting in a different queue for a longer period of time.
    Response. The ability to retain priority dates in cases in which a 
worker is changing EB preference categories has long been permitted 
under existing regulations at 8 CFR 204.5(e); it is not a policy newly 
afforded by this rulemaking. DHS believes that allowing certain 
beneficiaries of multiple approved Form I-140 petitions to continue to 
retain the earliest established priority date for use with subsequently 
approved Form I-140 petitions, including cases of transfers between EB 
preference categories, provides needed stability, job flexibility, and 
certainty for workers while they await adjustment of status. The policy 
also facilitates the ability of individuals to progress in their 
careers while they wait for visa availability. DHS believes the policy 
is consistent with the goals of the AC21 statute and has accordingly 
chosen to maintain it.
    Comment. A number of commenters supported the provisions in 
proposed 8 CFR 205.1(a)(3)(iii)(C) and (D), which provide that approval 
of a Form I-140 petition will not be automatically revoked based solely 
on withdrawal by the petitioner or termination of the petitioner's 
business if 180 days or more have passed since petition approval. The 
commenters said these provisions provide needed clarity and assurance 
to workers about the retention of priority dates in cases involving 
withdrawal or business termination. Several other commenters requested 
that DHS allow Form I-140 petitions to remain valid and approved 
despite petitioner withdrawal or business termination regardless of the 
amount of time that has passed since petition approval (i.e., even for 
petitions that have not been approved for 180 days or more).
    Response. DHS agrees that retaining the NPRM proposal related to 
validity of Form I-140 petitions in the event of withdrawal or business 
termination will bring clarity and assurance to workers that a 
petition's approval is not automatically revoked based solely on an 
employer's withdrawal of the petition or termination of the employer's 
business 180 days or more after the petition is approved or the 
associated application for adjustment of status is filed. This 
provision is intended to provide greater stability and flexibility to 
certain workers who are the beneficiaries of approved Form I-

[[Page 82416]]

140 petitions and are well on the path to obtaining LPR status in the 
United States.
    DHS notes, however, that commenters may have confused provisions 
that govern the retention of priority dates with provisions that govern 
the retention of petition approval. As proposed and in this final rule, 
8 CFR 204.5(e)(2) allows for the retention of the priority date of an 
approved EB-1, EB-2, or EB-3 Form I-140 petition regardless of the 
amount of time that has passed since petition approval. As discussed, 
once such a petition has been approved, the beneficiary may retain that 
priority date for use with another EB-1, EB-2, or EB-3 Form I-140 
petition, so long as the approval of the former petition was not 
revoked due to: (1) Fraud or a willful misrepresentation of a material 
fact; (2) revocation or invalidation of the labor certification 
associated with the petition; or (3) a determination that there was a 
material error with regards to USCIS's approval of the petition. See 
final 8 CFR 204.5(e)(2). In contrast, final 8 CFR 205.1(a)(3)(iii)(C) 
and (D) allow for retention of a petition's approval, despite 
withdrawal or business termination, but only if such withdrawal or 
termination occurs 180 days or more after the approval or 180 days or 
more after the associated application for adjustment of status is 
filed. Thus, under this rule, the beneficiary of a Form I-140 petition 
may be able to retain his or her priority date even if approval of the 
petition is revoked due to withdrawal or business termination.
    To further provide clarity in this area, DHS removed the phrase 
``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)'' from proposed 8 CFR 
205.1(a)(3)(iii)(C) and (D). DHS intended this phrase to simply restate 
that under Sec.  204.5(e), a priority date may be retained, despite 
withdrawal or business termination that occurs less than 180 days after 
the petition's approval. DHS is removing the phrase from the proposed 
text because it could be construed as creating an unintended exception 
to the priority date retention provision.
    DHS declines to adopt commenters' proposal that a Form I-140 
petition remains approved if the withdrawal or business termination 
occurs at any time before the Form I-140 has been approved for at least 
180 days. DHS believes that the 180-day threshold is consistent with 
and furthers the goals of job portability under INA 204(j). 
Additionally, DHS believes the 180-day threshold protects against fraud 
and misuse while providing important stability and flexibility to 
workers who have been sponsored for permanent residence. In addition to 
the period that it typically takes for a petitioning employer to obtain 
a labor certification from DOL and approval of a Form I-140 petition 
from DHS, the 180-day requirement provides additional assurance that 
the petition was bona fide when filed. The final rule, therefore, 
maintains Form I-140 petition approval despite petitioner withdrawal or 
business termination when such petitions have been approved for 180 
days or more, or its associated adjustment of status application has 
been pending for 180 days or more. See final 8 CFR 205.1(a)(3)(iii)(C) 
and (D).
    Comment. One commenter suggested changes to the regulatory text 
concerning the requirement that the Form I-140 petition be approved for 
180 days or more. Specifically, the commenter recommended amending the 
text to make clear that the 180-day threshold would not apply in cases 
in which an applicant has a pending Application to Register Permanent 
Residence or Adjust Status (Form I-485) that may provide job 
portability under INA 204(j). The commenter stated that, as proposed, 
the regulation would create a ``double'' waiting period in the 
portability context, requiring the foreign national to wait 180 days 
from approval of the Form I-140 petition and an additional 180 days 
from filing of the application of adjustment of status in order to be 
able to move to a new position. The commenter believed this outcome 
would be inconsistent with congressional intent under AC21.
    Response. DHS thanks the commenter for identifying the potential 
for confusion given the text of proposed Sec.  205.1(a)(3)(iii)(C) and 
(D) and DHS's stated goal to codify and expand upon its existing policy 
implementing INA 204(j). DHS proposed to allow a Form I-140 petition to 
remain valid for certain purposes if such a petition was withdrawn or 
the petitioner's business terminated 180 days or more after the Form I-
140 petition had been approved.
    This provision was intended to build upon existing DHS policies 
that have governed the validity of Form I-140 petitions in the event of 
withdrawal or business termination before and after beneficiaries are 
eligible to change jobs or employers under INA 204(j). DHS did not 
intend that its regulatory proposal would modify the existing timeframe 
before an individual would become eligible to port under INA 204(j); 
rather, this provision was intended to protect those individuals who 
are not yet eligible for INA 204(j) portability from the automatic 
revocation of the approval of a Form I-140 petition that had been 
approved for 180 days or more. Consistent with the intent of AC21 and 
DHS policy, DHS is revising the regulatory language at 8 CFR 
205.1(a)(3)(iii)(C) and (D) to make clear that an approved Form I-140 
petition involving withdrawal or business termination occurring 180 
days or more after either petition approval or the filing of an 
associated application for adjustment of status remains approved, 
unless its approval is revoked on other grounds. See final 8 CFR 
205.1(a)(3)(iii).
    Comment. One commenter recommended that the final rule require that 
the beneficiary of an employment-based Form I-140 petition remain with 
the petitioning employer for at least 3 years before the employee is 
able to retain the priority date of that petition. The commenter stated 
that a 3-year ``mandatory stay'' would provide some stability and 
security to petitioning employers.
    Response. DHS declines to adopt the commenter's suggested 
``mandatory stay'' requirement as it is contrary to the principles and 
policy goals of this final rule. Furthermore, DHS notes that Form I-140 
petitions are for prospective employment, and there is no guarantee 
that the beneficiary of an approved Form I-140 petition has or would be 
able to obtain work authorization to commence employment with the 
petitioner prior to obtaining lawful permanent residence. In addition, 
allowing priority date retention furthers the goals of AC21 to grant 
stability, flexibility, and mobility to workers who are facing long 
waits for LPR status.
    Comment. Several commenters requested that the rule's provision 
restricting revocation of a petition's approval based on withdrawal or 
business termination apply retroactively to petitions whose approvals 
were revoked prior to the rule's publication.
    Response. DHS appreciates the commenters' suggestion; however, DHS 
has determined that retroactive application of this provision would be 
problematic. Generally, there is a presumption against retroactive 
application of new regulations. Cf. Bowen v. Georgetown Univ. Hosp., 
488 U.S. 204 (1988). Moreover, in this case, retroactive application of 
the revised automatic revocation provision would impose a 
disproportionate operational burden on USCIS, as it would require 
significant manual work. USCIS systems cannot be queried based on the 
specific reason(s) for revocation, and USCIS would be required to 
manually identify

[[Page 82417]]

and review these cases in order to verify the reason(s) for revocation, 
thus creating a highly labor-intensive process that would significantly 
strain USCIS resources. Therefore, the final 8 CFR 205.1(a)(3)(iii)(C) 
and (D) provisions will apply prospectively from the effective date of 
this final rule.
iii. Priority Date Not Retained if Approval Revoked for Fraud, Willful 
Misrepresentation, DOL Revocation, Invalidation by USCIS or DOS, 
Material Error, or Petition Denial
    Comment. Some commenters supported the rule's requirement that 
priority dates will not be retained in cases of fraud, willful 
misrepresentation, revocation or invalidation of the labor 
certification, a determination that petition approval was the result of 
an error, or the denial of the petition. Other commenters opposed the 
inability to retain priority dates where a Form I-140 petition's 
approval has been revoked based on a determination that USCIS 
erroneously approved the petition. One commenter requested that DHS 
change the standard for revoking petition approval in error to 
``material'' error to remain consistent with other USCIS policies in 
cases where DHS's error in a prior adjudication requires review of that 
adjudicatory outcome.
    Response. DHS agrees that it is important for the integrity of the 
immigration system not to retain a priority date in cases in which the 
approval of a Form I-140 petition is revoked for fraud, willful 
misrepresentation of a material fact, the invalidation or revocation of 
a labor certification, or USCIS error. Based on feedback from 
commenters, however, DHS has determined that the text of the proposed 
rule at Sec.  204.5(e)(2)(iv) that reads, ``[a] determination by USCIS 
that petition approval was in error,'' needs to be clarified. In the 
final rule, that text is amended to read, ``[a] determination by USCIS 
that petition approval was based on a material error'' in order to 
clarify that a priority date will only be lost in those cases in which 
the error leading to revocation involves the misapplication of a 
statutory or regulatory requirement to the facts at hand. See final 8 
CFR 204.5(e)(2)(iv). The change to the ``material error'' standard is 
consistent with other USCIS policy that addresses agency deference to 
prior adjudicatory decisions.\25\ Examples of material errors include 
situations in which an adjudicator relied on an inaccurate employer 
identification number and associated financial information that did not 
pertain to the petitioner for purposes of establishing its continuing 
ability to pay the proffered wage; information later comes to light 
indicating that the petitioner did not establish the ability to pay 
under the applicable regulatory criteria; or an adjudicator finds 
evidence in a subsequent related matter that the beneficiary did not 
have the education or experience required for the position offered. DHS 
declines to accept commenters' recommendations that the final 
regulation remove the error standard in its entirety because of the 
need to take appropriate action in cases in which the petition was not 
approvable in the first instance. Furthermore, it should be noted that 
the scope of the ``material error'' standard pertains only to whether 
the priority date is retained based on a USCIS revocation of the 
petition approval.
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    \25\ See USCIS Memorandum from William Yates, ``The Significance 
of a Prior CIS Approval of a Nonimmigrant Petition in the Context of 
a Subsequent Determination Regarding Eligibility for Extension of 
Petition Validity'' (Apr. 24, 2004).
---------------------------------------------------------------------------

    Comment. One commenter suggested that USCIS allow the retention of 
Form I-140 priority dates even in cases in which it is later discovered 
that the petitioner made material misrepresentations on the original 
petition and the petition's approval is revoked, as well as cases in 
which the petition's approval is revoked based on USCIS error--so long 
as it can be reasonably verified that the beneficiary had no 
involvement in the misrepresentation or the error later discovered by 
USCIS.
    Response. DHS understands that revocation of long approved Form I-
140 petitions due to the later discovery of willful 
misrepresentation(s) committed by the petitioner, but that are 
unbeknownst to the beneficiary, can negatively impact the beneficiary 
by causing the loss of his or her priority date and, therefore, the 
beneficiary's place in line for an immigrant visa. The revocation of 
the approval of a long approved Form I-140 petition due to material 
errors that are not the fault of the beneficiary can also negatively 
impact the beneficiary. DHS, however, believes it would be 
inappropriate to allow a Form I-140 petition that had its approval 
revoked for fraud or willful misrepresentation of a material fact, or 
because the Form I-140 petition was not eligible for approval in the 
first place, to confer a priority date. Allowing the beneficiary of 
such petition to remain in line ahead of other individuals who are the 
beneficiaries of properly approved Form I-140 petitions would be 
contrary to DHS's goal of upholding the integrity of the immigration 
system.
    Comment. Some commenters requested that beneficiaries of approved 
Form I-140 petitions who are not yet eligible for 204(j) portability be 
permitted to change jobs and adjust status to lawful permanent 
residence without the requirement of obtaining a new application for 
labor certification and a new approved Form I-140 petition. Some who 
advocated for this change noted that the ability to reuse or ``port'' 
an approved Form I-140 petition should be available after the initial 
petition has been approved for 180 days or more, and others requested 
that portability be allowed immediately after the petition's approval. 
Similar to job portability under INA 204(j) in certain regards, these 
and other commenters suggested that beneficiaries of approved Form I-
140 petitions should be allowed to change jobs, file a Form I-485 
application and adjust status to lawful permanent residence on the 
basis of the original Form I-140 petition as long as the new job is in 
the same or a similar occupation as the job described in the approved 
Form I-140 petition. Some commenters stated that there is an increase 
in time and monetary costs associated with multiple labor certification 
filings. Most of the commenters agreed that very few benefits were 
provided by requiring a new labor certification. Commenters also 
expressed that ``recertification'' additionally deters employers from 
sponsoring current foreign worker employees who are beneficiaries of 
Form I-140 petitions based on new jobs. One commenter urged DHS to 
allow a withdrawn or revoked Form I-140 petition to remain valid for 
the purposes of obtaining an immigrant visa, in order to fully 
implement Congress's intent in passing AC21.
    Response. A foreign worker may obtain an employment-based immigrant 
visa only if he or she is the beneficiary of an approved employment-
based immigrant visa petition. See INA 204(b), 8 U.S.C. 1154(b). In 
this final rule, DHS is allowing certain approved Form I-140 petitions 
to remain approved for various purposes despite withdrawal or business 
termination. However, such a petition may not be used to obtain lawful 
permanent residence, unless it meets the requirements of INA 204(j).
    With respect to obtaining lawful permanent residence under the EB-2 
and EB-3 classifications, the INA requires that the worker be the 
beneficiary of a valid Form I-140 petition, which generally must be 
supported by a valid labor certification at the time of adjustment of 
status. See INA 203(b)(2), (3); 204(a)(1)(F); and 212(a)(5)(A) and (D), 
8 U.S.C. 1153(b)(2),

[[Page 82418]]

(3); 1154(a)(1)(F); 1182(a)(5)(A) and (D). Outside of the 204(j) 
context, an approved Form I-140 petition filed by an employer that no 
longer intends to employ the worker upon approval of the Form I-485 
application, whether presently or at any time in the future, does not 
represent a bona fide job offer and, therefore, is not sufficient to 
support an application for adjustment of status.
    INA section 212(a)(5)(A) and (D) generally prohibits any foreign 
worker seeking to perform skilled or unskilled labor from being 
admitted to the United States under the EB-2 and EB-3 immigrant visa 
classifications unless the Secretary of Labor has determined and 
certified that there are not sufficient workers who are able, willing, 
qualified, and available to perform that work at the location the 
foreign worker will perform the work and that the employment of that 
foreign worker will not adversely affect the wages and working 
conditions of similarly situated U.S. workers. Under current DOL 
regulations, a permanent labor certification remains valid only for the 
particular job opportunity, for the individual named on the labor 
certification, and for the area of intended employment stated on the 
application for permanent labor certification. See 20 CFR 656.30(c)(2). 
However, section 106(c)(2) of AC21 created an exception to this 
admissibility requirement, by allowing an approved Form I-140 petition 
supported by the associated labor certification to remain valid for 
certain long-delayed adjustment applicants ``with respect to a new job 
accepted by the individual after the individual changes jobs or 
employers if the new job is in the same or a similar occupational 
classification as the job for which the certification was issued.'' INA 
212(a)(5)(A)(iv), 8 U.S.C. 1182(a)(5)(A)(iv). DHS does not have 
authority to regulate the terms and requirements of these labor 
certifications and therefore cannot prescribe what is necessary for the 
labor certification to remain valid even for long-delayed applicants 
for adjustment of status, although DHS does have authority to 
invalidate labor certifications for fraud or willful misrepresentation. 
The INA designates DOL as the federal department responsible for making 
permanent labor certification determinations.
    While DHS cannot expand portability beyond the INA 204(j) context, 
the final rule does provide some additional flexibility and stability 
for individuals who may not be eligible for INA 204(j) portability, by 
allowing beneficiaries of approved Form I-140 petitions to retain their 
priority dates in certain situations and allowing certain Form I-140 
petitions to remain valid, including for purposes of section 204(j) 
portability, notwithstanding withdrawal of the petition or termination 
of the petitioner's business, as described above.\26\
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    \26\ The priority date of the earliest petition will be 
preserved in cases where the Form I-140 petition has been approved, 
no matter the amount of time that has passed since the approval, 
subject to the restrictions in 8 CFR 204.5(e)(2). See final 8 CFR 
204.5(e)(1). The priority date can be retained even if approval is 
subsequently revoked, unless it is revoked for fraud, willful 
misrepresentation of a material fact, the invalidation or revocation 
of a labor certification, or USCIS material error as required by 8 
CFR 204.5(e)(2).
---------------------------------------------------------------------------

iv. Beneficiary Standing To Challenge the Revocation of an Employment-
Based Immigrant Visa Petition's Approval
    Comment. Several commenters expressed concern that individual 
beneficiaries of Form I-140 petitions are not provided notice when 
USCIS seeks to revoke the approval of those petitions. The commenters 
stated that this policy prevented beneficiaries from checking the 
status of their pending Form I-140 petitions and providing the evidence 
needed to avail themselves of AC21 portability. The commenters stated 
that under USCIS's current practice, a beneficiary may be unaware that 
approval of his or her Form I-140 petition has been revoked until his 
or her application for adjustment of status is denied. The commenters 
stated that not providing beneficiaries with notice and an opportunity 
to respond in such cases raises serious issues of fundamental fairness 
that could be remedied by permitting beneficiaries of petitions that 
may afford portability under section 204(j) to participate in visa 
petition proceedings, consistent with Congress's intent when it enacted 
AC21. The commenters urged DHS to undertake rulemaking to bring notice 
regulations in line with the realities of today's AC21 statutory 
scheme. Finally, a commenter stated that beneficiaries of Form I-140 
petitions have interests equal to or greater than those of petitioners, 
including because revocation impacts beneficiaries' ability to retain 
priority dates, their admissibility, their eligibility to have 
immigrant visa petitions approved on their behalf, and their 
eligibility for adjustment of status under section 245(i) of the INA, 8 
U.S.C. 1255(i). The commenter added that the enactment of AC21 had 
altered the analysis of which individuals should be considered 
``interested parties'' before USCIS on various issues, including the 
ability to extend H-1B status beyond the 6-year maximum period and to 
port to a ``same or similar'' occupation under INA section 204(j). 
Commenters also cited to various recent federal cases that have 
supported the commenters' interpretation of AC21.
    Response. DHS appreciates the concerns raised by these comments. 
While DHS is unable to address these concerns in this final rule 
because they are outside the scope of this rulemaking, DHS is 
considering separate administrative action outside of this final rule 
to address these concerns.

E. Continuing and Bona Fide Job Offer and Supplement J Form

1. Description of Final Rule and Changes From NPRM
    The final rule at 8 CFR 245.25 codifies DHS policy and practice 
requiring that a foreign worker seeking to adjust his or her status to 
that of an LPR must have a valid offer of employment at the time the 
Form I-485 application is filed and adjudicated. DHS at final 8 CFR 
245.25(a)(2) codifies the existing policy and practice to determine 
eligibility to adjust status based on a request to port under section 
204(j) of the INA. In the final rule at 8 CFR 245.25(a)(2)(ii)(A) and 
(B), DHS reaffirms that a qualifying immigrant visa petition has to be 
approved before DHS examines a portability request under INA 204(j) and 
determines an individual's eligibility or continued eligibility to 
adjust status based on the underlying visa petition. DHS also codifies 
current practice regarding the adjudication of portability requests 
when the Form I-140 petition is still pending at the time the 
application for adjustment of status has been pending for 180 days or 
more in final 8 CFR 245.25(a)(2)(ii)(B).
    Based on its program experience in adjudicating adjustment of 
status applications, USCIS determined that certain threshold evidence 
regarding the job offer is required in all cases to successfully 
determine eligibility for adjustment of status based on an employment-
based immigrant visa petition and facilitate the administrative 
processing of INA 204(j) porting requests. USCIS has consequently 
developed a new form--Supplement J to Form I-485, Confirmation of Bona 
Fide Job Offer or Request for Job Portability Under INA Section 204(j) 
(``Supplement J'')--to standardize the collection of such information. 
The offer of employment may either be the original job offer or, 
pursuant to INA 204(j), a new offer of employment, including qualifying 
self-employment, that is in the same or similar occupational

[[Page 82419]]

classification as the original job offer.\27\ See final 8 CFR 
245.25(a)(1)-(2). In the final rule at 8 CFR 245.25(a) and (b), DHS 
clarifies that it may require individuals to use Supplement J, or 
successor form, to confirm existing or new job offers prior to 
adjudication of an application to adjust status. DHS also eliminates 
duplicative evidentiary provisions that were proposed in 8 CFR 
245.25(b). As amended, the final 8 CFR 245.25(a) makes clear that any 
supporting material and credible documentary evidence may be submitted 
along with Supplement J, according to the form instructions. The 
definition of ``same or similar occupational classification'' that was 
proposed in 8 CFR 245.25(c) is being retained without change in the 
redesignated final 8 CFR 245.25(b).
---------------------------------------------------------------------------

    \27\ For additional information on USCIS policy regarding the 
parameters of porting to self-employment, please see USCIS 
memorandum, ``Determining Whether a New Job is in ``the Same or a 
Similar Occupational Classification'' for Purposes of Section 204(j) 
Job Portability'' (Mar. 18, 2016) (``Same or Similar Memo March 
2016'').
---------------------------------------------------------------------------

    The use of Supplement J will ensure uniformity in the collection of 
information and submission of initial evidence. Supplement J will be 
used to assist USCIS, as appropriate, in confirming that the job offer 
described in a Form I-140 petition is still available at the time an 
individual files an application for adjustment of status, or a 
qualifying job offer otherwise continues to be available to the 
individual before final processing of his or her application for 
adjustment of status. Supplement J also will be used by applicants for 
adjustment of status to request job portability, and by USCIS to 
determine, 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 Form I-140 petition.
    Supplement J collects necessary information about the job offer and 
includes attestations from the foreign national and employer regarding 
essential elements of the portability request. In a number of ways, 
Supplement J will improve the processing of porting requests submitted 
under INA 204(j). As further described in the responses to comments 
below, DHS is making a revision to the Supplement J instructions to 
clarify that individuals applying for adjustment of status on the basis 
of a national interest waiver (NIW), as well as aliens of extraordinary 
ability, are not required to use Supplement J. Currently, USCIS is not 
adding an extra fee for submission of this new supplement, but may 
consider implementing a fee in the future.
2. Public Comments and Responses
i. Portability Under INA 204(j)
    Comment. One commenter requested that DHS clarify regulatory 
language to reflect current practice that permits a foreign national 
whose application for adjustment of status has been pending for 180 
days or more to request portability under INA 204(j) in cases in which 
the Form I-140 petition underlying the application for adjustment of 
status is not yet approved. The commenter noted that current policy 
allows for such portability requests to be made provided the Form I-140 
petition was approvable based on the facts in existence at the time of 
filing, with the exception of the petitioner's ability to pay the 
offered wage. The commenter stated that this has been USCIS's policy 
since 2005, when DHS confirmed through policy guidance that the 180-day 
portability clock under INA 204(j) begins to run when the Form I-485 
application is filed, not when the Form I-140 petition is approved. 
This commenter cited to the Aytes Memo, ``Interim guidance for 
processing I-140 employment-based immigrant petitions and I-485 and H-
1B petitions affected by the American Competitiveness in the Twenty-
First Century Act (AC21) (Public Law 106-313)'' (May 12, 2005, revised 
Dec. 27, 2005) (Aytes 2005 memo) at 2, 4-5.
    Response. DHS agrees that clarification is needed in the final rule 
regarding DHS's practice for qualifying Form I-140 petitions that 
remain pending when the beneficiary's application for adjustment of 
status has been pending for 180 days or more. As noted by the 
commenter, there may be instances in which an individual can request 
job portability pursuant to INA 204(j) because the worker's Form I-485 
application has been pending for 180 days or more, but the Form I-140 
petition has not yet been adjudicated. In such cases, however, the 
qualifying Form I-140 petition must be approved before a portability 
request under INA 204(j) may be approved.
    In response to this comment, DHS amended proposed 8 CFR 
245.25(a)(2) to reflect DHS's current policy and longstanding practice 
related to such pending Form I-140 petitions.\28\ In final 8 CFR 
245.25(a)(2)(ii)(A) and (B), DHS reaffirms that a qualifying immigrant 
visa petition must be approved before DHS examines a portability 
request under INA 204(j) and determines an individual's eligibility or 
continued eligibility to adjust status on the basis of the underlying 
visa petition. DHS also sets forth in this final rule how USCIS will 
assess specific Form I-140 petition eligibility requirements, including 
the petitioner's ability to pay, when a porting request has been made 
on a pending Form I-140 petition.
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    \28\ As indicated in the proposed rule, regulatory provisions 
would ``largely conform DHS regulations to longstanding agency 
policies and procedures established in response to certain sections 
of [ACWIA] and [AC21].'' See 80 FR 81899, 81901 (Dec. 31, 2015). The 
new regulatory provision under 8 CFR 245.25(a)(2)(ii) is one such 
provision that ``update[s] and conform[s] [DHS's] regulations 
governing adjustment of status consistent with longstanding agency 
policy.'' Id. at 81915.
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    First, in accordance with existing practice, USCIS will only 
adjudicate a qualifying Form I-140 petition in accordance with the 
standards described in final 8 CFR 245.25(a)(2)(ii) when USCIS has been 
notified that the beneficiary intends to port to a new job pursuant to 
INA 204(j). As indicated in the precedent decision, Matter of Al 
Wazzan, 25 I&N Dec. 359, 367 (BIA 2010), the qualifying immigrant visa 
petition--

must have been filed for an alien who is ``entitled'' to the 
requested classification and that petition must have been 
``approved'' by a USCIS officer pursuant to his or her authority 
under the Act . . . [A] petition is not made ``valid'' merely 
through the act of filing the petition with USCIS or through the 
passage of 180 days.

    The burden is on the applicant to demonstrate eligibility or 
otherwise maintain eligibility for adjustment of status to lawful 
permanent residence.\29\ See INA sections 204(e) and 291, 8 U.S.C. 
1154(e) and 1361; see also Tongatapu Woodcraft of Hawaii, Ltd. v.

[[Page 82420]]

Feldman, 736 F.2d 1305, 1308 (9th Cir. 1984) (stating that the 
applicant ``bears the ultimate burden of proving eligibility'' and that 
this burden ``is not discharged until'' lawful permanent residence is 
granted); 8 CFR 103.2(b)(1).
---------------------------------------------------------------------------

    \29\ USCIS may inquire at any time whether an applicant for 
adjustment of status has, or continues to have, a qualifying job 
offer until the applicant ultimately obtains lawful permanent 
residence. See INA sections 204(a)(1)(F), (b), (e), (j) and 
212(a)(5), 8 U.S.C. 1154(a)(1)(F), (b), (e), (j), and 1182(a)(5); 
cf. Yui Sing Tse v. INS, 596 F.2d 831, 835 (9th Cir. 1979) (finding 
that an alien need not intend to remain at the certified job 
forever, but at the time of obtaining lawful permanent resident 
status, both the employer and the alien must intend that the alien 
be employed in the certified job); Matter of Danquah, 16 I&N Dec. 
191 (BIA 1975) (adjustment of status denied based on the ground that 
the labor certification was no longer valid because the foreign 
national was unable to assume the position specified in the labor 
certification prior to obtaining adjustment of status). USCIS may 
become aware of certain information that raises questions about 
whether an applicant for adjustment of status continues to have a 
qualifying job offer (e.g., a letter from the petitioner requesting 
the withdrawal of the petition). In this and similar instances when 
the Form I-140 petition has already been approved, USCIS may issue a 
Notice of Intent to Deny (NOID) or Request for Evidence (RFE) to the 
applicant to make sure that the applicant has a new job offer that 
preserves his or her eligibility to become a lawful permanent 
resident in connection with the same Form I-485 application and 
based on the same qualifying petition pursuant to INA 204(j).
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    Second, in determining whether a Form I-140 petitioner meets the 
``ability to pay'' requirements under 8 CFR 204.5(g)(2) for a pending 
petition that a beneficiary seeks to rely upon for 204(j) portability, 
DHS reviews the facts in existence at the time of filing. See final 8 
CFR 245.25(a)(2)(ii)(B)(1).\30\ Thus, during the adjudication of the 
petition, DHS reviews any initial evidence and responses to requests 
for evidence (RFEs), notices of intent to deny (NOIDs), or any other 
requests for more information that may have been issued, to determine 
whether the petitioner met the ability to pay requirement as of the 
date of the filing of the petition. To effectuate the intent of INA 
204(j) to enable workers to change employment, DHS looks only at the 
facts existing at the time of filing to determine whether the original 
petitioner has the ability to pay, notwithstanding the language in 8 
CFR 204.5(g)(2), which otherwise requires that a petitioner has 
continuing ability to pay after filing the petition and until the 
beneficiary obtains lawful permanent residence. To require that the 
original Form I-140 petitioner demonstrate a continuing ability to pay 
when the beneficiary no longer intends to work for that petitioner is 
illogical and would create an incongruous obstacle for the beneficiary 
to change jobs, thus unnecessarily undermining the purpose of INA 
204(j). USCIS will not review the original petitioner's continuing 
ability to pay after the filing date of the qualifying petition before 
it may approve such petition and then review a portability request. 
Under this final rule, USCIS will continue to determine whether the 
subsequent offer of employment by an employer that is different from, 
or even the same as, the employer in the original Form I-140 petition 
is bona fide.
---------------------------------------------------------------------------

    \30\ See Aytes 2005 Memo, at 2; Donald Neufeld Memorandum 
``Supplemental Guidance Relating to Processing Forms I-140 
Employment-Based Immigrant Petitions and I-129 H-1B Petitions, and 
Form I-485 Adjustment Applications Affected by the American 
Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Pub. 
L. 106-313), as amended, and the American Competitiveness and 
Workforce Improvement Act of 1998 (ACWIA), Title IV of Div. C. of 
Public Law 105-277'' at 9, (May 30, 2008) (``Neufeld May 2008 
Memo'').
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    Third, DHS is clarifying for INA 204(j) portability purposes that a 
qualifying Form I-140 petition will be approved if eligibility 
requirements (separate and apart from the ability to pay requirement) 
have been met at the time of filing and until the foreign national's 
application for adjustment of status has been pending for 180 days. See 
final 8 CFR 245.25(a)(2)(ii)(B)(2). Consistent with current policy and 
practice, DHS will review the pending petition to determine whether the 
preponderance of the evidence establishes that the petition is 
approvable or would have been approvable had it been adjudicated before 
the associated application for adjustment of status has been pending 
for 180 days or more.\31\ For example, if DHS receives a written 
withdrawal request from the petitioner, or the petitioner's business 
terminates, after the associated application for adjustment of status 
has been pending for 180 days or more, DHS will not deny the petition 
based solely on those reasons.\32\ DHS, however, will deny a Form I-140 
petition if DHS receives the written withdrawal request, or a business 
termination occurs, before the associated application for adjustment of 
status has been pending for 180 days, even when DHS adjudicates the 
petition after the associated application for adjustment of status has 
been pending for 180 days or more.
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    \31\ See Aytes 2005 Memo, at 1 (stating in the response to 
Section I, Question 1 that if it is discovered that a beneficiary 
has ported under an unapproved Form I-140 petition and Form I-485 
application that has been pending for 180 days or more, the 
adjudicator should, among other things, ``review the pending I-140 
petition to determine if the preponderance of the evidence 
establishes that the case is approvable or would have been 
approvable had it been adjudicated within 180 days'').
    \32\ Under current INA 204(j) portability practice, DHS 
considers the date it receives a withdrawal request from the 
petitioner as the date of withdrawal regardless of the date on which 
DHS adjudicates the Form I-140 petition.
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    Section 8 CFR 245.25(a)(2), as amended in this final rule, is 
consistent with AC21, existing regulations, USCIS policies implementing 
AC21, and current practice. Specifically, DHS reads 8 CFR 245.25(a)(2), 
as amended in this final rule, in harmony with 8 CFR 103.2(b)(1), which 
requires an applicant or petitioner to ``establish that he or she is 
eligible for the requested benefit at the time of filing the benefit 
request and must continue to be eligible through adjudication.'' In 
cases involving a request for INA 204(j) portability that is filed 
before USCIS adjudicates the Form I-140 petition, DHS will assess a 
petitioner's ability to pay as of the date the Form I-140 petition was 
filed and all other issues as of the date on which the application for 
adjustment of status was pending 180 days, regardless of the date on 
which the petition is actually adjudicated. DHS believes this policy 
meaningfully implements congressional intent in enacting INA 204(j) to 
allow workers who cannot immediately adjust status based on backlogs to 
move to new employment while their applications for adjustment of 
status remain pending.
    Accordingly, for petitioners to satisfy the ability to pay 
requirement in this limited context, eligibility will be deemed 
established through adjudication for purposes of 8 CFR 103.2(b)(1) if 
the ability to pay existed at the time the priority date is established 
through time of the petition's filing. See 8 CFR 204.5(g)(2). 
Similarly, again in this limited INA 204(j) context, DHS is defining 
eligibility for all other Form I-140 eligibility requirements for 
purposes of 8 CFR 103.2(b)(1) (i.e., separate and apart from the 
ability to pay requirement) as being established if such eligibility 
can be demonstrated at time of filing through the date the associated 
application for adjustment of status has been pending for 180 days, 
instead of the date the final decision is issued.
    DHS believes that this specific adjudicatory practice is consistent 
with the requirements in 8 CFR 103.2(b)(1),\33\ accommodates the 
circumstances contemplated in final 8 CFR 245.25(a)(2)(ii), and is 
important to ensure that the goals of AC21 are met. As a practical 
matter, petitioners have diminished incentives to address inquiries 
regarding qualifying Form I-140 petitions once the beneficiaries have a 
new job offer that may qualify for INA 204(j) portability and the 
relevant focus has shifted to whether the new job offer meets the 
requirements of INA 204(j). Accordingly, denying a qualifying Form I-
140 petition for either ability to pay issues that occur after the time 
of filing, or for other petition eligibility issues that transpire 
after the associated application for adjustment of

[[Page 82421]]

status has been pending for 180 days or more, would be contrary to a 
primary goal of AC21. Such a policy would in significant part defeat 
the aim to allow individuals the ability to change jobs and benefit 
from INA 204(j) so long as their associated application for adjustment 
of status has been pending for 180 days or more. DHS notes that this 
does not prevent DHS from requiring a response from the Form I-140 
petitioner and taking appropriate action on a request for evidence or 
notice of intent to deny issued before the associated application for 
adjustment of status has been pending for 180 days or more or, if 
appropriate for reasons described below, after that period.
---------------------------------------------------------------------------

    \33\ The current language in 8 CFR 103.2(b)(1) requires in 
pertinent part that a petitioner ``establish that he or she is 
eligible for the requested benefit at the time of filing the benefit 
request and must continue to be eligible through adjudication.'' 
This policy was codified through a final rule (with request for 
comments) in 2011 in which DHS noted the ``longstanding policy and 
practice, as well as a basic tenet of administrative law, [ ] that 
the decision in a particular case is based on the administrative 
record that exists at the time the decision is rendered.'' 76 FR 
53764, 53770 (Aug. 29, 2011) (citing Citizens to Preserve Overton 
Park v. Volpe, 401 U.S. 402 (1972)). The practice that DHS currently 
outlines in 8 CFR 245.25(a)(2)(ii), in which DHS interprets 
eligibility through ``adjudication'' in 8 CFR 103.2(b)(1) as 
eligibility at the time of filing (for the ability to pay 
requirement) or eligibility at the time of filing and up to the day 
before the associated application for adjustment of status has been 
pending for 180 days (for other requirements separate and apart from 
the ability to pay requirement), were in place since at least 2005, 
are consistent with the AC21 statute, and were not superseded by the 
amendments to 8 CFR 103.2(b)(1) in 2011.
---------------------------------------------------------------------------

    Finally, DHS maintains through this final rule its existing policy 
and practice to deny a pending Form I-140 petition at any time, and 
even after the associated application for adjustment of status has been 
pending for 180 days or more, if the approval of such petition is 
inconsistent with a statutory requirement in the INA or other law. See 
final 8 CFR 245.25(a)(2)(ii)(B)(2). For example, DHS will deny an 
otherwise qualifying Form I-140 petition at any time if the beneficiary 
seeks or has sought LPR status through a marriage that has been 
determined by DHS to have been entered into for the purpose of evading 
the immigration laws. See INA 204(c), 8 U.S.C. 1154(c). DHS also will 
deny, at any time, a pending Form I-140 petition that involves a 
petitioner or an employer that has been debarred, under INA 
212(n)(2)(C)(i) and (ii), 8 U.S.C. 1182(n)(2)(C)(i) and (ii), even when 
the debarment occurs after the filing of the petition. Similarly, DHS 
will deny a Form I-140 petition, at any time, if the beneficiary is 
required by statute to be licensed to perform his or her job and the 
beneficiary loses such licensure before the petition is adjudicated. 
See e.g., INA 212(a)(5)(B) and (C), 8 U.S.C. 1182(a)(5)(B) and (C). DHS 
notes that these examples do not encompass all scenarios when a statute 
requires DHS to deny a pending Form I-140 petition. DHS will review 
such petitions on a case-by-case basis.
    Comment. Some commenters requested that DHS eliminate references to 
the Department of Labor's Standard Occupational Classification (SOC) 
system in the regulatory text governing the adjudication of porting 
requests. One commenter noted that occupations that rely on similar 
skills, experience, and education are often classified in disparate 
major groups within the SOC structure. This commenter was also 
concerned that the SOC system is updated only once every 8 years, a 
schedule that is often outpaced by the speed of innovation, 
particularly with STEM occupations. Another commenter described concern 
that adjudicators will rely exclusively on the SOC codes when 
determining whether two jobs are in the same or similar occupational 
classification(s) (``same or similar determinations'').
    Response. DHS agrees with the commenters and, in this final rule, 
removes the specific reference to SOC codes in the final rule. See 
final 8 CFR 245.25. This change from the proposed rule is consistent 
with DHS policy under which SOC codes are just one factor that may be 
considered, in conjunction with other material evidence, when making 
the portability determination. To demonstrate that two jobs are in the 
same or similar occupational classification(s) for purposes of INA 
204(j) portability, applicants and/or their employers should submit all 
relevant evidence. Such evidence includes, but is not limited to, a 
description of the job duties for the new position; the necessary 
skills, experience, education, training, licenses or certifications 
required for the new job; the wages offered for the new job; and any 
other material and credible evidence submitted by the applicant. 
Applicants or their employers may also reference DOL's labor market 
expertise as reflected in its SOC system, which is used to organize 
occupational data and classify workers into distinct occupational 
categories, as well as other relevant and credible information, when 
making portability determinations.
    DHS recognizes that variations in job duties are natural and may 
occur because they involve employers in different economic sectors. 
This does not necessarily preclude two positions from being in similar 
occupational classifications for purposes of 204(j) portability. SOC 
codes provide a measure of objectivity in such assessments and thus can 
help address uncertainty in the portability determination process.
    Comment. Several commenters stated that the definition of ``same or 
similar'' in proposed 8 CFR 245.25(c) is overly restrictive and will 
particularly cause difficulty for workers seeking promotions because 
the definition may not cover moves to certain higher level positions. 
In contrast, another commenter stated that the proposed definition is 
arbitrary and capricious, and that the definition effectively lowers 
the standard set in prior DHS guidance. That commenter believed the new 
definition would effectively nullify the statutory requirements related 
to labor certification approval.
    Response. DHS disagrees with these comments. Congress did not 
define the term ``same or similar,'' thus delegating that 
responsibility and authority to DHS. Through this final rule, DHS 
adopts a definition that is consistent with the statutory purpose 
underlying INA 204(j), and that reflects both common dictionary 
definitions and longstanding DHS practice and experience in this area. 
As has long been the case, to determine whether two jobs are in the 
same occupational classification, USCIS looks to whether the jobs are 
``identical'' or ``resembling in every relevant respect.'' \34\ To 
determine whether two jobs are in similar occupational classifications, 
USCIS looks to whether the jobs share essential qualities or have a 
``marked resemblance or likeness.'' \35\
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    \34\ For additional information on USCIS policy regarding the 
parameters of porting to ``same'' or ``similar'' employment, please 
see Same or Similar Memo March 2016.
    \35\ Id.
---------------------------------------------------------------------------

    DHS recognizes that individuals earn opportunities for career 
advancement as they gain experience over time. Cases involving career 
progression must be considered under the totality of the circumstances 
to determine whether the applicant has established by a preponderance 
of the evidence that the relevant positions are in similar occupational 
classifications for INA 204(j) portability purposes. For further 
guidance on the DHS analysis of cases involving career progression, 
commenters are encouraged to read the March 16, 2016, USCIS policy 
memorandum, ``Determining Whether a New Job is in `the Same or a 
Similar Occupational Classification' for Purposes of Section 204(j) Job 
Portability.'' \36\
---------------------------------------------------------------------------

    \36\ Id.
---------------------------------------------------------------------------

ii. Concerns Raised Regarding Supplement J
    Comment. DHS received a number of comments on the new Supplement J 
to Form I-485, many of which came from individuals who are currently in 
the process of pursuing lawful permanent residence as beneficiaries of 
Form I-140 petitions. Many commenters stated that the Supplement J 
requirement is an unnecessary burden that will make portability 
requests under INA 204(j) more complex and cumbersome. Commenters also 
stated that the requirement would create uncertainty and confusion 
among employers and applicants. Commenters noted that employers may 
understand the Supplement J requirement as a

[[Page 82422]]

disincentive to retaining or hiring new foreign nationals, as the 
requirement would increase administrative burdens and legal risks for 
employers in an already time-consuming and expensive process. 
Commenters stated that employers unfamiliar with the INA 204(j) process 
may be unwilling to cooperate in the completion of Supplement J. They 
also noted that the Supplement J requirement may require employers to 
draft new company policies concerning the supplement, thus further 
increasing administrative burdens. Some commenters stated that the 
Supplement J requirement would disrupt employers' existing procedures 
covering individuals seeking portability under INA 204(j).
    Response. The majority of commenters that opposed the Supplement J 
requirement argued that it would be burdensome and complex, but they 
did not provide detailed explanations, analysis, or evidence supporting 
these assertions. Individuals requesting job portability under INA 
204(j) have typically complied with that provision by submitting job 
offer letters describing the new job offer and how that new job is in 
the same or a similar occupational classification as the job offer 
listed in the underlying Form I-140 petition. The Supplement J 
requirement is intended to replace the need to submit job offer and 
employment confirmation letters by providing a standardized form, which 
will benefit both individuals and the Department. Under this rule, 
individuals will now have a uniform method of requesting job 
portability and USCIS will have a standardized means for capturing all 
of the relevant information necessary for processing.\37\ DHS believes 
that a single standardized form, with accompanying instructions, 
provides greater clarity to the public regarding the types of 
information and evidence needed to support job portability requests. 
The form also ensures continued compliance with Paperwork Reduction Act 
(PRA) requirements.
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    \37\ Along with Supplement J, individuals will still be able to 
provide additional information and documentary evidence supporting 
any aspect of the porting request. Individuals, if they so choose, 
may also include a letter further explaining how the new job offer 
is in the same or a similar occupational classification as the job 
offer listed in the qualifying Form I-140 petition.
---------------------------------------------------------------------------

    Given the large overall number and variety of benefit requests and 
applications that USCIS adjudicates each year, DHS can more efficiently 
intake and process INA 204(j) portability requests on Supplement J than 
those submitted through letter correspondence. Among other things, 
Supplement J provides a consistent format and uniform content, which 
allows DHS to more easily find and capture necessary information as 
well as match the form with the corresponding Form I-485 application. 
Because there is no standardized form currently associated with porting 
requests, DHS contract and records staff cannot efficiently enter data 
associated with those requests. With the Supplement J, standardized 
data can more readily be entered and tracked in agency electronic 
systems. This, in turn, will greatly enhance USCIS's ability to monitor 
the status of portability requests, track file movement, and otherwise 
improve accountability and transparency regarding USCIS's processing of 
portability requests.
    DHS does not agree with several commenters' statements that the 
Supplement J requirement will increase uncertainty with respect to job 
portability requests. Rather, DHS believes that Supplement J will 
reduce past uncertainties by facilitating (1) the tracking of 
portability requests through the adjudication process, (2) the 
provision of timely acknowledgements and notices, and (3) the ability 
of individuals to know if their new job is in a same or a similar 
occupational classification before the Form I-485 application is 
adjudicated.
    Additionally, an individual who seeks to port in the future may 
affirmatively file Supplement J to seek a determination as to whether a 
new job offer is in the same or a similar occupational classification. 
A DHS decision will inform the individual whether the new job offer can 
support the pending Form I-485 application and continued eligibility to 
obtain lawful permanent residence without the need for a new employer 
to file a new Form I-140 petition. This process will provide 
transparency into USCIS's ``same or similar'' determinations, providing 
individuals with increased certainty and better allowing them to make 
informed career decisions, such as whether to change jobs prior to 
final adjudication of the pending Form I-485 application.
    While an applicant may be required to submit Supplement J when 
requesting job portability, or in response to an RFE or NOID, DHS does 
not believe that this new requirement will create significant new 
burdens or legal risks for employers and employees. As discussed in 
more detail in the Regulatory Impact Analysis (RIA), the submission of 
Supplement J will not impose significant additional burdens of time on 
employers, because employers are already required in such cases to 
submit job offer or employment confirmation letters supporting INA 
204(j) portability. For this same reason, DHS believes the Supplement J 
requirement will also not impose significant new legal costs, including 
by increasing the likelihood that individuals or employers will need to 
consult with lawyers.\38\
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    \38\ DHS notes that the RIA in this rulemaking provides 
potential filing costs of Supplement J as prepared by human 
resources specialists, in-house attorneys, and other attorneys. DHS 
included such legal costs not because it believes that legal 
assistance will be required to fill out Supplement J, but because 
many individuals and employers already use attorneys to submit 
portability requests under INA 204(j).
---------------------------------------------------------------------------

    While DHS presents a sensitivity analysis for the potential annual 
costs of Supplement J in the RIA as ranging from $126,598 to 
$4,636,448, DHS believes that the submission of Supplement J does not 
impose significant additional burdens on USCIS or employers because 
applicants are already required to submit letters from employers when 
requesting INA 204(j) portability. DHS does not have information on how 
long it currently takes to complete employment confirmation or job 
offer letters, so DHS cannot conduct side-by-side comparisons. However, 
anecdotal input suggests that, notwithstanding concern to the contrary, 
the Supplement J requirement in fact is roughly equivalent to the 
letter-writing process, as employment confirmation and job offer 
letters currently provide information similar to that requested in 
Supplement J.
    Additionally, USCIS recognizes in the RIA that the simplified and 
standardized process provided by the Supplement J requirement may 
facilitate the ability of employees to change employers. This process, 
along with the potential for an increased awareness of INA 204(j) 
portability as a result of this regulation, could potentially increase 
the number of Supplement J forms submitted. While beneficial to 
applicants, such an increase has the potential to result in higher 
turnover for some employers, along with additional costs that may be 
incurred due to employee replacement. However, DHS does not currently 
have data on the percentage of employees who port to other employers 
vis-[agrave]-vis those who port to other positions with their same 
employers. In the RIA, DHS qualitatively discusses the potential costs 
to employers resulting from employee turnover.
    DHS reiterates that the Supplement J requirement will streamline 
adjudication by providing clear instructions on the types of 
information

[[Page 82423]]

required to be submitted to USCIS. Additionally, DHS does not believe 
that employers will need to create any new administrative processes for 
filling out Supplement J, as employers are already required to submit 
job offer or employment confirmation letters. DHS believes that 
Supplement J places similar burden on employers from what is required 
through the current process. Similarly, because Supplement J requests 
substantially the same information that is currently provided by 
employers through letter correspondence, DHS does not believe the 
Supplement J creates any new legal risks for those employers. For a 
more detailed analysis of the economic impact of this rule, please 
refer to the full RIA published on regulations.gov.
    Comment. Several commenters expressed concern that Supplement J 
will allow employers to take advantage of and assert more control over 
foreign workers. Some commenters specifically focused on the 
requirement that employers review and sign Supplement J before it is 
submitted to USCIS. Those commenters believed that this requirement 
could create a power dynamic in which employers could further control 
and exploit workers, including by forcing them to accept depressed 
wages.
    Response. DHS does not believe that Supplement J will give 
employers more power over, or the ability to take advantage of, foreign 
workers. When the use of Supplement J becomes effective, an applicant 
for adjustment of status will continue to have the same flexibility to 
accept other job offers, if eligible for INA 204(j) portability, as 
they currently have.
    Applicants requesting portability under INA 204(j) must provide 
evidence that the employer is a viable employer extending a bona fide 
offer of full-time employment to the applicant, and that the employer 
will employ the applicant in the job proffered upon the applicant's 
grant of lawful permanent resident status. The current practice is to 
have applicants submit this evidence in the form of job offer letters 
from employers. These letters must contain the employer's signature, as 
well as a certification that everything in the letter is true and 
correct. Supplement J does not depart from this past practice in any 
meaningful way. Because Supplement J requests the same information as 
is currently provided in letters that are currently provided by 
employers, and that contain the employer's signature, DHS does not see 
how the Supplement J requirement increases the ability to take 
advantage of, or otherwise assert control over, employees.
    Comment. Many commenters also expressed concern that the Supplement 
J requirement will cause additional processing delays or fail to 
alleviate current employment-based immigrant visa wait times. Many 
commenters who were on the path to obtaining lawful permanent residence 
expressed their belief that the Supplement J requirement will 
exacerbate the already backlogged process for adjusting status. 
Commenters also suggested the requirement will lead to even more 
procedural requests for evidence, further delaying completion of 
processing efforts. Another commenter requested elimination of the 
Supplement J requirement from the rule, stating that the requirement 
would deter employers from hiring porting workers and thus set back 
efforts to increase portability among workers.
    Response. DHS does not believe the Supplement J requirement will 
exacerbate or otherwise increase Form I-485 application processing 
times, nor will it deter employers from hiring porting workers, because 
it is simply replacing the existing requirement to provide letters from 
employers. To the contrary, DHS believes Supplement J will streamline 
the processing of Form I-485 applications, minimizing any processing 
delays caused by a potential increase in porting resulting from this 
rule. USCIS currently reviews employment letters, often in response to 
inquiries issued by USCIS, when adjudicating Form I-485 applications. 
Now USCIS will review and process Supplement J submissions instead. 
Supplement J aims to reduce exchanges between applicants and 
adjudicators, including by eliminating the need for USCIS to issue RFEs 
and NOIDs to obtain employment confirmation letters, thereby reducing 
the adjudication time involved in such cases. It allows DHS to 
standardize data entry and tracking pertaining to permanent job offers 
that are required in order for the principal beneficiaries of Form I-
140 petitions to be eligible for adjustment of status. Moreover, the 
electronic capture of data pertaining to job offers will help DHS 
monitor the status of certain Form I-485 applications awaiting visa 
allocation and will enable DHS to better determine which Form I-485 
applications have the required evidence prior to final processing.
    DHS agrees with commenters, however, that Supplement J will not 
alleviate current employment-based immigrant visa wait times. Many Form 
I-485 applications may remain pending for lengthy periods of time due 
to the retrogression of visa numbers for particular employment-based 
immigrant visa preference categories, which may lead to visas becoming 
unavailable after Form I-485 applications are filed. Congress 
established the numerical limitations on employment-based immigrant 
visa numbers. The Department of State allocates employment-based 
immigrant visas based on the applicant's preference category, priority 
date, and country of chargeability. Supplement J does not affect the 
statutory availability of employment-based immigrant visas or the 
allocation of such numbers by DOS. USCIS cannot approve an individual's 
application for adjustment of status until a visa has again become 
available to that individual.
    Supplement J improves administration of the portability provisions 
that Congress created so that individuals experiencing lengthy delays 
in the adjudication of their Form I-485 applications can change jobs 
while retaining their eligibility to adjust status on the basis of an 
approved Form I-140 petition. Supplement J will result in the more 
efficient adjudication of Form I-485 applications once visas become 
available, which DHS believes will encourage, not deter employers from 
hiring workers eligible to port under section 204(j).
    Comment. Several commenters indicated that Supplement J will 
require the use of attorneys, which may diminish employers' desires to 
extend new job offers pursuant to INA 204(j) and therefore limit job 
portability. One commenter expressed the belief that corporate human 
resources representatives will not feel comfortable filling out 
Supplement J and will therefore seek the involvement of immigration 
attorneys.
    Response. An attorney is not required to complete or file 
Supplement J, although individuals and employers may choose to be 
represented by attorneys. As indicated previously, Supplement J will 
standardize information collection for job portability requests under 
INA 204(j) and request information and evidence that many individuals 
and employers already submit to demonstrate eligibility under INA 
204(j). While DHS is aware that many individuals and employers have in 
the past been represented by or received assistance from attorneys in 
relation to portability requests under INA 204(j), DHS disagrees that 
requiring the use of Supplement J will substantially increase the 
likelihood that individuals or employers will need to consult with 
attorneys on future submissions, given that the information collected 
by the form largely overlaps with the information that individuals

[[Page 82424]]

and employers already provide through less formalized channels.\39\ As 
noted above, Supplement J does not impose any new requirements and will 
assist DHS in determining an individual's eligibility to adjust status 
to lawful permanent residence in certain employment-based immigrant 
visa categories, as well as to modernize and improve the process for 
requesting job portability under INA 204(j).
---------------------------------------------------------------------------

    \39\ As noted previously, the RIA in this rulemaking provides 
potential filing costs of Supplement J as prepared by human 
resources specialists, in-house attorneys, and other attorneys. DHS 
recognizes that not all entities have human resources specialists or 
low-cost access to attorneys. DHS reaffirms, however, that aid of an 
attorney or a human resources specialist is not required to fill out 
Supplement J. DHS included these costs because many larger entities 
already rely on such individuals when preparing documents for use in 
portability requests under INA 204(j).
---------------------------------------------------------------------------

iii. Miscellaneous Comments on Supplement J
    Comment. Several commenters asked for clarification on whether 
individuals granted EB-2 national interest waivers would be required to 
file Supplement J.
    Response. Grantees of national interest waivers will not be 
required to file Supplement J. Individuals seeking immigrant visas 
under certain employment-based immigrant visa categories do not require 
job offers from employers, including those filing EB-1 petitions as an 
alien of extraordinary ability and those filing EB-2 petitions based on 
a national interest waiver, which waives the normal EB-2 job offer 
requirement when DHS determines that doing so is in the national 
interest. See 8 CFR 204.5(h)(5) and (k)(4)(ii). An individual 
classified as an alien of extraordinary ability or granted a national 
interest waiver is not required to demonstrate a job offer at the time 
of adjudication of the Form I-485 application and therefore would not 
need to submit Supplement J (although they are not precluded from doing 
so). However, USCIS may inquire whether such applicants are continuing 
to work in the area or field that forms the basis of their immigrant 
visa eligibility. USCIS may also assess inadmissibility by determining 
whether an individual would likely become a public charge under INA 
212(a)(4). USCIS revised the Supplement J instructions to clarify that 
the form need not be filed by aliens of extraordinary ability or 
individuals applying for adjustment of status on the basis of a 
national interest waiver.
    Comment. Several commenters stated that Supplement J requires 
certain information that is not relevant to either a portability 
determination under INA 204(j) or to confirm that a job offer is 
available and bona fide. Specifically, commenters referred to sections 
in Supplement J that require employers to provide information such as 
type of business, gross annual income, net annual income, and number of 
employees. Commenters suggested revising the form to only require that 
kinds of information normally contained in employment confirmation 
letters.
    Response. DHS agrees that certain information requested by 
Supplement J, such as the size of the employer's workforce, by itself, 
may not be determinative in the assessment of whether two jobs are in 
the same or similar occupational classification(s), or whether the job 
offered in the underlying Form I-140 petition is still available. 
However, such information can be relevant in the ``same or similar'' 
determination under the totality of the circumstances, as well as when 
USCIS is assessing whether a job offer is bona fide. DHS believes the 
information requested on Supplement J will assist USCIS in validating 
employers and in assessing whether a prospective employer is viable and 
making a bona fide job offer to the applicant. And in cases involving 
the same employer named in the underlying Form I-140 petition, 
Supplement J will assist USCIS in determining whether the employer is 
still viable and is still extending a bona fide job offer to the 
applicant.
    Comment. Some commenters expressed concern that Supplement J would 
prevent economic growth and reduce labor mobility among workers who 
have various talents, especially in the technology sector. They argued 
that the ability of high-skilled talent to move between various 
organizations, or between different industries of the U.S. economy, 
would spur economic growth.
    Response. DHS disagrees that the Supplement J requirement would 
prevent economic growth and hinder labor mobility. As noted previously, 
Supplement J simply allows DHS to collect and process information that 
employers already provide using a standardized information collection 
instrument, but it does not change the applicable standards of review. 
Contrary to assertions that Supplement J will limit worker mobility, 
DHS believes that Supplement J will facilitate the ability for eligible 
individuals to change between jobs while increasing the awareness of 
the availability of job portability under INA 204(j).

F. Compelling Circumstances Employment Authorization

1. Description of Final Rule and Changes From NPRM
    The final rule provides a stopgap measure, in the form of temporary 
employment authorization, to certain nonimmigrants who are the 
beneficiaries of approved employment-based immigrant visa petitions, 
are caught in the continually expanding backlogs for immigrant visas, 
and face compelling circumstances. This stopgap measure is intended to 
address certain particularly difficult situations, including those that 
previously may have forced individuals on the path to lawful permanent 
residence to abruptly stop working and leave the United States. When 
sponsored workers and their employers are in particularly difficult 
situations due to employment-based immigrant visa backlogs, the 
compelling circumstances employment authorization provision may provide 
a measure of relief, where currently there is none.
    Specifically, the final rule provides that, to obtain a temporary 
grant of compelling circumstances employment authorization, an 
individual must (1) be in the United States in E-3, H-1B, H-1B1, O-1, 
or L-1 nonimmigrant status, including in any applicable grace period, 
on the date the application for employment authorization is filed; (2) 
be the principal beneficiary of an approved Form I-140 petition; (3) 
establish that an immigrant visa is not authorized for issuance based 
on his or her priority date, preference category, and country of 
chargeability according to the Final Action Date in effect on the date 
the application is filed; and (4) demonstrate compelling circumstances 
that justify the exercise of USCIS discretion to issue an independent 
grant of employment authorization. See final 8 CFR 204.5(p)(1). The 
final rule limits the grant of employment authorization in compelling 
circumstances to a period of 1 year. See final 8 CFR 204.5(p)(4). 
Additionally, the principal beneficiary may seek renewals of this 
employment authorization in 1-year increments if: (1) He or she 
continues to face compelling circumstances and establishes that an 
immigrant visa is not authorized for issuance based on his or her 
priority date, preference category, and country of chargeability 
according to the Final Action Date in effect on the date the renewal 
application is filed; or (2) the difference between his or her priority 
date and the relevant Final Action Date is 1 year or less (without 
having to show compelling circumstances). See final 8 CFR 
204.5(p)(3)(i). The final rule allows

[[Page 82425]]

family members of these individuals to also apply for employment 
authorization, and provides that the validity period for their EADs may 
not extend beyond that authorized for the principal beneficiary. See 
final 8 CFR 204.5(p)(2) and (p)(3)(ii). The large majority of these 
individuals, after availing themselves of this temporary relief, are 
likely to continue on their path to permanent residence.
    DHS is finalizing the compelling circumstances employment 
authorization provision with several changes to the proposed regulatory 
text to clarify the eligibility requirements for initial and renewal 
applications filed by principals and dependents. An individual 
requesting an EAD must file an application on Form I-765 with USCIS in 
accordance with the form instructions. Under final 8 CFR 204.5(p)(3), 
some individuals may be eligible for a renewal of their compelling 
circumstances EAD on either or both bases of eligibility, depending on 
their circumstances. DHS also recognizes that an applicant may seek to 
renew his or her compelling circumstances EAD on a different basis than 
that on the initial application. In the responses to comments below, 
DHS further explains the provisions in the final rule, including the 
manner in which DHS determined the specific population of beneficiaries 
who would be eligible for this type of employment authorization and its 
rationale for providing employment authorization only to those 
individuals who are facing compelling circumstances.
2. Public Comments and Responses
i. Support for Compelling Circumstances Employment Authorization
    Comment. Some commenters supported the rule completely as written 
and therefore supported employment authorization based on compelling 
circumstances as proposed. Many of these commenters expressed general 
support and did not provide a detailed explanation for their position. 
Other commenters highlighted the benefits of compelling circumstances 
employment authorization, such as facilitating the ability of certain 
nonimmigrants to work for other employers (i.e., not just the 
sponsoring employer).
    Response. DHS appreciates these comments. The compelling 
circumstances provision fills a gap in the regulations and provides 
short-term relief to high-skilled individuals who are already on the 
path to lawful permanent residence, but who find themselves in 
particularly difficult situations generally outside of their control 
while they wait for their immigrant visas to become available.
    Comment. One commenter supported the provision making individuals 
with a felony conviction ineligible for compelling circumstances 
employment authorization and recommended that such felons be ``deported 
without asking questions.''
    Response. DHS confirms that, consistent with other processes, 
applicants who have been convicted of any felony or two or more 
misdemeanors are ineligible for employment authorization under the 
compelling circumstances provision. See final 8 CFR 204.5(p)(5). DHS, 
however, will not deport individuals without due process or in a manner 
inconsistent with controlling statutory and regulatory authority.
ii. Status of Individuals Who Are Granted a Compelling Circumstances 
EAD
    Comment. A few commenters asked DHS to clarify the ``status'' of an 
individual who receives employment authorization based on compelling 
circumstances. One commenter asked DHS to clarify whether such 
individuals will be given a period of ``deferred action'' so as to 
provide them with a temporary reprieve from removal or other 
enforcement action. Similarly, the commenter asked DHS to confirm that 
individuals who receive employment authorization under compelling 
circumstances will not accrue unlawful presence. Another commenter 
asked DHS to provide an underlying status for beneficiaries of 
compelling circumstances EADs or to consider such beneficiaries to be 
in lawful status for purposes of INA 245(k)(2)(A), 8 U.S.C. 
1255(k)(2)(A), so that these beneficiaries would be eligible to file 
applications for adjustment of status from within the United States, 
rather than having to consular process.
    Response. Congress sets the categories or ``statuses'' under which 
foreign nationals may be admitted to the United States. While 
individuals eligible for compelling circumstances EADs must have lawful 
nonimmigrant status at the time they apply, such individuals will 
generally lose that status once they engage in employment pursuant to 
such an EAD. Such a foreign national will no longer be maintaining his 
or her nonimmigrant status, but he or she will generally not accrue 
unlawful presence during the validity period of the EAD or during the 
pendency of a timely filed and non-frivolous application. This means 
that if an individual who was employed under a compelling circumstances 
EAD leaves the United States to apply for a nonimmigrant or immigrant 
visa at a consular post abroad, the departure will not trigger the 
unlawful presence grounds of inadmissibility, as long as he or she is 
not subject to those grounds by virtue of having otherwise accrued 
periods of unlawful presence. USCIS intends to adjust its policy 
guidance to confirm that holders of compelling circumstances EADs will 
be considered to be in a period of stay authorized by the Secretary for 
that purpose. Because such individuals will be considered as being in a 
period of authorized stay for purposes of calculating unlawful 
presence, DHS does not believe it generally would be necessary to 
provide them with deferred action, which is an act of prosecutorial 
discretion that may be granted to individuals who generally have no 
other legal basis for being in the United States.
    Comment. Commenters suggested that individuals who use compelling 
circumstances EADs should be permitted to adjust their status to lawful 
permanent residence once a visa becomes available, regardless of 
whether they are maintaining nonimmigrant status.
    Response. With limited exception,\40\ the INA does not permit the 
relief these commenters are requesting. Workers who initially apply for 
compelling circumstances EADs must be in a lawful nonimmigrant status. 
When a high-skilled worker engages in employment under a compelling 
circumstances EAD, he or she will no longer be working under the terms 
and conditions contained in the underlying nonimmigrant petition. 
Although the foreign national may remain in the United States and work 
under a compelling circumstances EAD, and generally will not accrue 
unlawful presence while the EAD is valid, he or she may be unable to 
adjust status to lawful permanent residence in the United States when 
his or her priority date becomes current. An individual who is seeking 
lawful permanent residence based on classification as an employment-
based immigrant is generally barred by statute from applying to adjust 
status in the United States if he or she is not in lawful nonimmigrant 
status. See INA 245(c)(2) and (7), 8 U.S.C. 1254(c)(2) and (7). If an 
individual working on a compelling circumstances EAD finds an employer 
who is willing to sponsor him or her for a nonimmigrant classification 
(such as

[[Page 82426]]

the H-1B nonimmigrant classification), he or she would have to leave 
the United States and may need to obtain a nonimmigrant visa from a 
consulate or embassy overseas before being able to return to the United 
States to work in that status. See INA 248, 8 U.S.C. 1258; 8 CFR 
248.1(b). Once the individual has been admitted in nonimmigrant status, 
he or she may be eligible to adjust status to lawful permanent 
residence, if otherwise eligible.
---------------------------------------------------------------------------

    \40\ See, e.g., INA 245(i) and (k), 8 U.S.C. 1255(i) and (k).
---------------------------------------------------------------------------

iii. Changing the Scope of Proposed Employment Authorization
    Comment. A majority of commenters supported the ability of high-
skilled workers to obtain independent employment authorization but 
stated that the proposal in the NPRM was too restrictive, particularly 
because of the inclusion of the compelling circumstances requirement. 
Commenters instead supported employment authorization for foreign 
workers in the United States who are beneficiaries of approved Form I-
140 petitions, who are maintaining nonimmigrant status, and who are 
waiting for their immigrant visa priority dates to become current, 
regardless of whether they face compelling circumstances.
    A common concern expressed by commenters opposing the compelling 
circumstances requirement was that the number of individuals who would 
be eligible for such EADs would be too narrow. Some commenters 
suggested that it would be better to never finalize the rule if the 
compelling circumstance provision were to remain intact. Certain 
commenters opposed DHS's introduction of a compelling circumstances 
requirement because no other employment authorization category is 
conditioned upon a showing of compelling circumstances. One commenter, 
for example, reasoned that the ``compelling circumstances'' requirement 
should be eliminated because applicants for adjustment of status, who 
similarly are on the path to lawful permanent residence, need not 
demonstrate compelling circumstances to obtain an EAD. Other commenters 
noted that recipients of deferred action under the Deferred Action for 
Childhood Arrivals (DACA) policy are not required to establish 
compelling circumstances to qualify for employment authorization and 
stated that it is only fair that nonimmigrants with approved Form I-140 
petitions who are contributing to society by working and paying taxes 
be treated equivalently. Some commenters concluded that the Department 
is ``targeting'' certain foreign workers by imposing the compelling 
circumstances condition.
    Response. The Department believes the compelling circumstances 
employment authorization provision strikes a reasonable balance between 
competing priorities. By providing greater flexibility to certain high-
skilled foreign workers who are on the path to permanent residence but 
are facing particularly difficult situations, the provision 
incentivizes such workers to continue contributing to our economy; 
affords greater fairness to such individuals who have already cleared 
significant legal hurdles to becoming LPRs; and complements the 
flexibilities otherwise introduced by this rulemaking in a way that 
harmonizes with the broader immigration system. DHS therefore declines 
to expand the group of people who may be eligible for employment 
authorization under 8 CFR 204.5(p).
    DHS believes the expansions suggested by commenters have the 
potential to create uncertainty among employers and foreign nationals 
with consequences for predictability and reliability in the employment-
based immigration system. Among other things, the suggestions could 
lead to unlimited numbers of beneficiaries of approved immigrant visa 
petitions choosing to fall out of nonimmigrant status, as described in 
greater detail below. The resulting unpredictability in the employment-
based immigrant visa process must be carefully weighed in light of the 
Secretary's directive to ``provide stability'' to these beneficiaries, 
while modernizing and improving the high-skilled visa system.\41\ DHS 
is cognizant of these consequences for foreign nationals who may apply 
for compelling circumstances EADs, and carefully weighed these 
consequences when assessing the classes of individuals who should be 
eligible for such EADs. Moreover, the INA affords numerous mechanisms 
for high-skilled workers to obtain employment in the United States 
under a variety of applicable nonimmigrant classifications and, as 
necessary, change from one nonimmigrant status to another.\42\ DHS 
regulations accordingly provide the processes and criteria for 
obtaining such statuses on behalf of high-skilled workers.\43\ By 
authorizing grants of employment authorization in 1-year increments to 
certain high-skilled individuals facing difficult situations, DHS 
intends to provide something different--a stopgap relief measure for 
intending immigrants, well on their way to achieving lawful permanent 
resident status, in the event certain circumstances arise outside their 
control, and that the existing framework fails to meaningfully address. 
Where no such circumstances are present, these individuals can avail 
themselves of other opportunities already permitted them under the INA 
and DHS regulations, including the improved flexibilities provided by 
this final rule. Among other things, this final rule provides high-
skilled workers with nonimmigrant grace periods and includes provisions 
that help such workers retain approval of their employment-based 
immigrant visa petitions and related priority dates. These provisions 
enhance flexibility for employers and nonimmigrant workers and will 
decrease instances where the compelling circumstances EAD might 
otherwise be needed. Relatedly, DHS believes that providing compelling 
circumstances EADs only to the subset of the employment-sponsored 
population in need of this relief will limit disincentives for 
employers to sponsor foreign workers for permanent residence. DHS thus 
disagrees that the proposed eligibility factors for employment 
authorization in compelling circumstances are too restrictive and 
negate the value of the entire regulation. Further, DHS disagrees with 
the commenters' characterizations that the limitations on the 
compelling circumstances EAD are unfairly or improperly ``targeting'' 
certain high-skilled workers. DHS believes that the compelling 
circumstances EAD provides a useful benefit for all eligible high-
skilled workers by allowing them to continue to progress in their 
careers and remain in the United States while they await immigrant 
visas, despite compelling circumstances that might otherwise force them 
to leave the United States. Retaining these high-skilled nonimmigrant 
workers who are well on their way to becoming LPRs is important when 
considering the contributions of these individuals to the U.S. economy, 
including through contributions to entrepreneurial endeavors and 
advances in research and development.\44\
---------------------------------------------------------------------------

    \41\ See Memo from Jeh Charles Johnson, Secretary of Homeland 
Security, Policies Supporting U.S. High-Skilled Business and Workers 
2 (Nov. 20, 2014), available at http://www.dhs.gov/sites/default/files/publications/14_1120_memo_business_actions.pdf.
    \42\ See INA 101(a)(15), 214(e), and 248, 8 U.S.C. 1101(a)(15), 
1184(e), and 1258.
    \43\ See 8 CFR parts 214 and 248.
    \44\ See Hart, David, et al., ``High-tech Immigrant 
Entrepreneurship in the United States,'' Small Business 
Administration Office of Advocacy, at 60 (July 2009), available at: 
https://www.sba.gov/sites/default/files/rs349tot_0.pdf (presenting 
the economic contributions of high-skilled immigrants and the need 
to retain them, and concluding that 36 percent of immigrant-founded 
companies conduct R&D and 29 percent of immigrant-founded companies 
held patents, both higher percentages than native-founded 
companies); 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'' (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,'' available at: http://nvca.org/research/stats-studies/.

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[[Page 82427]]

    Comment. Several commenters stated that the Department clearly has 
the legal authority to implement the compelling circumstances EAD, as 
well as the legal authority to significantly broaden eligibility for 
such EADs. Other commenters questioned DHS's legal authority to extend 
employment authorization to certain non-U.S. citizens based on 
compelling circumstances. One such commenter emphasized that employment 
for other categories is expressly authorized by statute.
    Response. DHS agrees with the commenters who recognized that the 
Department has the statutory authority to grant employment 
authorization to these individuals. Such authority stems, in part, from 
the Secretary's broad discretion to administer the Nation's immigration 
laws and broad authority to ``establish such regulations . . . and 
perform such other acts as he deems necessary for carrying out his 
authority under the [INA].'' See INA 103(a)(3), 8 U.S.C. 1103(a)(3). 
Further, section 274A(h)(3)(B) of the INA, 8 U.S.C. 1324a(h)(3)(B) 
recognizes that employment may be authorized by statute or by the 
Secretary. See Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053, 
1062 (9th Cir. 2014) (``Congress has given the Executive Branch broad 
discretion to determine when noncitizens may work in the United 
States.''); Perales v. Casillas, 903 F.2d 1043, 1048, 1050 (5th Cir. 
1990) (describing the authority recognized by INA 274A(h)(3) as 
``permissive'' and largely ``unfettered''). The fact that Congress has 
directed the Secretary to authorize employment to specific classes of 
foreign nationals (such as the spouses of E and L nonimmigrants) does 
not diminish the Secretary's broad authority to administer the INA and 
to exercise discretion in numerous respects, including through granting 
employment authorization as a valid exercise of such discretion. See 
INA sections 103 and 274A(h)(3)(B), 8 U.S.C. 1103, and 1324a(h)(3)(B). 
The Secretary's exercise of discretion to grant employment 
authorization is narrowly tailored in this final rule to address the 
needs of a group of individuals who face compelling circumstances. The 
employment authorization is valid for 1 year, with limited 
opportunities for renewal, and is only available to discrete categories 
of nonimmigrant workers.
    Comment. Several commenters opposed to the compelling circumstances 
limitation noted that such limitation was not referenced in the 
Secretary's November 20, 2014 Memorandum, ``Policies Supporting U.S. 
High-Skilled Businesses and Workers.'' \45\ Similarly, many commenters 
stated that the proposed rule did not deliver portable work 
authorization for high-skilled workers and their spouses, as described 
in the White House Fact Sheet on Immigration Accountability Executive 
Action.\46\
---------------------------------------------------------------------------

    \45\ See Memo from Jeh Charles Johnson, Secretary of Homeland 
Security, Policies Supporting U.S. High-Skilled Business and Workers 
2 (Nov. 20, 2014), available at http://www.dhs.gov/sites/default/files/publications/14_1120_memo_business_actions.pdf.
    \46\ See FACT SHEET: Immigration Accountability Executive 
Action, White House (Nov. 20, 2014), https://www.whitehouse.gov/the-press-office/2014/11/20/fact-sheet-immigration-accountability-executive-action.
---------------------------------------------------------------------------

    Response. In the November 20, 2014 Memorandum, the Secretary 
directed USCIS to take several steps to modernize and improve the 
immigrant visa process for high-skilled workers. In relevant part, the 
Secretary instructed USCIS to carefully consider regulatory or policy 
changes to better assist and provide stability to the high-skilled 
beneficiaries of approved Form I-140 petitions. DHS believes this rule 
meets the Secretary's objectives. Although the compelling circumstances 
provision was not specifically referenced in the November 20, 2014 
Memorandum, it was proposed by the Department in response to the 
Secretary's directive to ``carefully consider other regulatory or 
policy changes to better assist and provide stability to the 
beneficiaries of approved Form I-140 petitions.'' \47\ The compelling 
circumstances provision specifically enables the beneficiaries of such 
petitions to remain and work in the United States if they face 
compelling circumstances while they wait for an immigrant visa to 
become available, and therefore directly responds to the Secretary's 
directive.
---------------------------------------------------------------------------

    \47\ See id. at 2.
---------------------------------------------------------------------------

    The White House Fact Sheet on Immigration Accountability Executive 
Action referenced by the commenters concerning portability of high-
skilled workers and their spouses is addressed in several elements of 
this rulemaking, including through the new H-1B portability provisions, 
the section 204(j) portability provisions, and provisions revising the 
circumstances under which Form I-140 petitions are automatically 
revoked. To the degree these comments specifically relate to provisions 
authorizing employment of H-4 nonimmigrant spouses of H-1B nonimmigrant 
workers who have been sponsored for permanent resident status, that 
provision was subject to separate notice-and-comment rulemaking and is 
now codified at 8 CFR 214.2(h)(9)(iv).
    Comment. Several commenters claimed that the compelling 
circumstances EAD provision has limited value because it introduces 
additional hurdles for individuals who wish to ultimately adjust their 
status domestically. Some commenters asserted that the provision would 
provide employers with increased avenues to exploit workers.
    Response. DHS appreciates that workers who are eligible for the 
compelling circumstances EAD may nevertheless choose to not to apply 
for this option after weighing all immigration options relevant to 
their specific situations. DHS is providing this new option in addition 
to others already available to foreign workers, such as changing status 
to another nonimmigrant category or applying for an extension of stay 
with a new employer in the same nonimmigrant category. DHS anticipates 
that an individual evaluating whether to apply for a compelling 
circumstances EAD will consider the benefits and drawbacks of using 
such an EAD. DHS expects that such individuals will specifically 
consider the effects of losing nonimmigrant status by working under a 
compelling circumstances EAD, which may require consular processing to 
reenter the United States on a nonimmigrant or immigrant visa. DHS 
believes that the rule provides a meaningful benefit to high-skilled 
individuals who otherwise may face particularly difficult situations.
    Finally, commenters did not suggest how the compelling 
circumstances EAD would facilitate the ability of employers to exploit 
their employees. DHS disagrees that the availability of such EADs, 
which are available to high-skilled nonimmigrant workers on a voluntary 
basis, would result in

[[Page 82428]]

increased exploitation of such workers.\48\
---------------------------------------------------------------------------

    \48\ DHS takes worker exploitation seriously. The Department has 
created the Blue Campaign to combat human trafficking and aid 
victims. More information about the Blue Campaign can be found at 
www.dhs.gov/blue-campaign. Other U.S. Government resources include 
the Department of Justice's Office of Special Counsel for 
Immigration-Related Unfair Employment Practices, which enforces the 
anti-discrimination provision of the INA. See INA section 274B; 8 
U.S.C. 1324b. More information about reporting an immigration-
related unfair employment practice may be found at http://www.justice.gov/crt/about/osc. In addition, the U.S. Equal 
Employment Opportunity Commission (EEOC) enforces Title VII of the 
Civil Rights Act of 1964 (Title VII), as amended, and other federal 
laws that prohibit employment discrimination based on race, color, 
national origin, religion, sex, age, disability and genetic 
information. More information about Title VII and the EEOC may be 
found at www.eeoc.gov. DHS also notes that DOL's Wage and Hour 
Division investigates allegations of employee abuse. Information 
about reporting a potential wage and hour violation can be found at 
www.dol.gov or by calling 1-866-4USWAGE (1-866-487-9243).
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iv. Illustrations of Compelling Circumstances
    In the NPRM, DHS provided four examples of situations that, 
depending on the totality of the circumstances, may be considered 
compelling and justify the need for employment authorization: (1) 
Serious illness or disability faced by the nonimmigrant worker or his 
or her dependent; (2) employer retaliation against the nonimmigrant 
worker; (3) other substantial harm to the applicant; and (4) 
significant disruption to the employer. These situations are meant to 
be illustrative, as compelling circumstances will be decided on a case-
by-case basis and may involve facts that vary from those provided 
above. For that reason, DHS invited the public to suggest other types 
of compelling circumstances that may warrant a discretionary grant of 
separate employment authorization. DHS also requested comments on the 
manner in which applicants should be expected to document such 
compelling circumstances. In response, DHS received numerous comments 
providing examples and suggestions, which are discussed below.
    Comment. Several commenters requested that DHS clearly define the 
term ``compelling circumstances.'' Some of these commenters stated that 
the subjectivity of the compelling circumstances provision would lead 
to unfair and inconsistent results. Other commenters stated that the 
lack of a definition would lead to confusion.
    Another commenter requested that DHS expand on the phrase ``other 
substantial harm to the applicant,'' believing that this provision may 
be the most common basis for demonstrating compelling circumstances. 
Another commenter suggested that DHS broaden the circumstances in which 
employer retaliation would be considered to be compelling, so as to 
benefit employees involved in labor disputes. The commenter noted that, 
as discussed in the preamble of the NPRM, the category titled 
``Employer Retaliation'' would require an employee to document that an 
employer had taken retaliatory action before the employee could become 
eligible to apply for employment authorization based on compelling 
circumstances. To alleviate undue risk, the commenter recommended 
revising the category so that it would cover individuals involved in 
labor disputes. The commenter believed this change would reduce the 
harm that retaliation can cause to employees and prevent the chilling 
effect such retaliation can have on the exercise of labor rights.
    A commenter also requested that, as related to DHS's proposal to 
consider significant disruption to employers, compelling circumstances 
apply when an employer attests that departure of the employee will: (1) 
Delay a project; (2) require the company to expend time or resources to 
train another employee to fill the role; (3) result in additional costs 
to recruit and hire a new employee; or (4) harm the company's 
professional reputation in the marketplace.
    Response. DHS understands that establishing a bright-line 
definition may be easier to apply in the view of some stakeholders; 
however, it may also have the effect of limiting DHS's flexibility to 
recognize the various circumstances that could be considered 
compelling. Such flexibility is better afforded through a mechanism 
that permits DHS to determine which situations involve compelling 
circumstances on a case-by-case basis. Therefore, in the preamble to 
the NPRM, DHS identified four illustrative (i.e., non-exhaustive) types 
of circumstances in which the Department may consider granting 
employment authorization. The possible types of circumstances that DHS 
may consider compelling are not restricted to these examples. In 
finalizing this rule, DHS considered comments requesting additional 
scenarios for DHS to add to the illustrative list of potential 
compelling circumstances in the NPRM. The broad range of additional 
scenarios suggested underscores the importance for retaining 
flexibility in making these discretionary determinations. Therefore, 
DHS declines to define the term ``compelling circumstances'' in more 
concrete and limiting terms in this rulemaking. In response to the 
public comments, however, the agency provides this updated list of 
illustrative circumstances that USCIS, in its discretion, might find 
compelling. USCIS emphasizes that this list is not exhaustive of the 
types of situations that might involve compelling circumstances.
     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. A move to another part of 
the country to ensure proper medical care is just one example of 
compelling circumstances resulting from a serious illness or disability 
of the principal beneficiary or his or her family member.
     Employer Dispute or Retaliation. The nonimmigrant worker 
can demonstrate that he or she is involved in a dispute regarding the 
employer's alleged illegal or dishonest conduct as evidenced by, for 
example, a complaint filed with a relevant government agency \49\ or 
court, and that the employer has taken retaliatory action that 
justifies granting separate employment authorization to the worker on a 
discretionary basis or that the dispute otherwise is shown to have 
created compelling circumstances. DHS recognizes that employer 
retaliation in response to a dispute is not limited to termination of 
employment and could include any number of actions taken by an 
employer, including harassment. Depending on the unique circumstances 
of a situation, an employer dispute could rise to the level of 
compelling circumstances even absent employer retaliation, but DHS 
declines to adopt the suggestion to grant a compelling circumstances 
EAD on the sole basis that the applicant is involved in a labor 
dispute. DHS is allowing sufficient flexibility under this ground, 
including by not defining ``retaliation'' or ``labor dispute'' in this 
rule or confining the ground to LCA violations alone. DHS further notes 
that the employer retaliation example does not identify the universe of 
fact patterns that might involve improper behavior by employers. DHS 
believes that the approach outlined in this final rule will make 
appropriate relief available for certain employees who can demonstrate

[[Page 82429]]

that they do not have the option of remaining with their current 
employer or that they face retaliatory actions if they do remain with 
their current employer.
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    \49\ Relevant government agencies include, but are not limited 
to, the Department of Labor, the Equal Employment Opportunity 
Commission, the National Labor Relations Board, and state or local 
counterparts to these federal agencies (e.g., the Massachusetts 
Labor and Workforce Development Office, the New Hampshire Public 
Employee Labor Relations Board, and the Oregon Employment Relations 
Board).
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     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. In some situations, this showing might 
be tied to financial hardship facing the principal and his or her 
spouse and children. An example of such substantial harm 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 that the same or a similar industry (e.g., nuclear energy, 
aeronautics, or artificial intelligence) does not materially exist in 
the home country. Another example might include a nonimmigrant worker 
whose return to his or her home country would cause significant 
hardship to the worker and his or her family by resulting in a series 
of circumstances regarding the family being uprooted that in their 
totality, rise to the level of compelling circumstances. In this 
circumstance, 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.
    Although approaching or reaching the statutory temporal limit on an 
individual's nonimmigrant status will not, standing alone, amount to 
compelling circumstances, this could be a factor considered by DHS in 
weighing the totality of the circumstances on a case-by-case basis. 
Likewise, job loss alone will not be considered substantial harm to the 
applicant, unless an individual can show additional circumstances that 
compound the hardship associated with job loss.
     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. DHS does not believe that, standing 
alone, a time delay in project completion would likely rise to a 
compelling circumstance, as a commenter suggested; however, such delays 
when combined with other factors, such as the cost to train or recruit 
a replacement or harm to an employer's reputation in the marketplace, 
might rise to a compelling circumstance. Additional examples of 
significant disruption may include the following:
    [cir] An L-1B nonimmigrant worker sponsored for permanent residence 
by an employer that subsequently undergoes corporate restructuring 
(e.g., a sale, merger, 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 who provides critical work on 
biomedical research for a non-profit entity, affiliated with an 
institution of higher education, that subsequently reorganizes and 
becomes a for-profit entity, causing the worker to no longer be exempt 
from the H-1B cap. In cases where the worker may be unable to obtain 
employment authorization based on his or her H-1B status, and the 
employer is unable to file a new H-1B petition based on numerical 
limitations or to obtain another work-authorized nonimmigrant status, 
the employment authorization available under 8 CFR 204.5(p) could 
provide a temporary bridge for continued employment of the worker as 
his or her departure would create substantial disruption to the 
employer's biomedical research.
    Comment. The NPRM requested that commenters submit examples of 
additional scenarios that could be considered for compelling 
circumstances EADs. Many commenters suggested fact patterns that they 
believed should rise to the level of a compelling circumstance. DHS 
received the following specific suggestions:
     Extraordinary Wait. Many commenters asked DHS to consider 
a lengthy wait for an immigrant visa to be a compelling circumstance. A 
number of commenters noted that having to continuously extend 
nonimmigrant status was in itself a compelling circumstance and that 
employment authorization should be granted on that basis alone. 
Commenters suggested various timeframes for when the wait for an 
immigrant visa would be lengthy enough to qualify as a compelling 
circumstance, including situations involving beneficiaries: Who are 
facing waits of over 5 years before they are eligible to file their 
applications for adjustment of status; who have completed 6 years in H-
1B nonimmigrant status and have an approved Form I-140 petition; who 
have an approved Form I-140 petition and are facing at least a three 
month wait before they may be eligible to file their applications for 
adjustment of status; or who have reached the limit of their 
nonimmigrant status solely because of the backlog on immigrant visas.
     Academic Qualifications. Several commenters suggested that 
DHS should grant compelling circumstances EADs to individuals seeking 
to gain advanced academic experience, such as those obtaining a U.S. 
graduate degree based on specialized research or entering a fellowship 
program. One commenter requested that U.S. educated advanced-degree 
holders in the fields of science, technology, engineering, and 
mathematics (STEM) be granted compelling circumstances employment 
authorization. Another commenter requested employment authorization 
under compelling circumstances for workers who are pursuing part-time 
education and would like to switch to a different type of job.
     Dissatisfaction with Current Position or Salary. Some 
commenters indicated that job dissatisfaction should be a compelling 
circumstance, because remaining in such employment can cause emotional 
harm and other problems.
     Home Ownership. One commenter recommended that home 
ownership be considered a compelling circumstance.
     Unemployment. One commenter recommended that unemployment 
be considered a compelling circumstance.
     Effects on Derivatives. One commenter suggested that 
certain family situations should be considered compelling 
circumstances. Specifically, the commenter stated that employment 
authorization should be approved where the employee submits evidence 
that his or her departure will: (1) Negatively affect the employee's, 
or a derivative family member's, professional career; or (2) disrupt 
the ongoing education of the employee's child. Many commenters 
requested that DHS amend the proposed

[[Page 82430]]

regulation to protect derivatives who may be ``aging out.'' The 
majority of these commenters believed that ``aging out'' itself 
constituted a compelling circumstance.
     Entrepreneurship. Some commenters advocated for granting 
employment authorization to individuals who would like to start a 
business. These commenters suggested that such entrepreneurship should 
always be a compelling circumstance.
     National Interest Waivers. Several commenters urged DHS to 
include approval of a national interest waiver as a stand-alone 
compelling circumstance. One commenter requested that DHS grant 
employment authorization to beneficiaries who have pending petitions 
for national interest waivers, and that DHS eliminate the requirement 
that individuals be maintaining lawful nonimmigrant status to adjust 
status pursuant to an employment-based immigrant visa petition. Another 
commenter requested that employment authorization be granted to 
physicians with national interest waivers who have worked for at least 
3 years in federally designated underserved areas.
    Response. Compelling circumstances are generally situations outside 
a worker's control that warrant the Secretary's exercise of discretion 
in granting employment authorization, on a case-by-case basis, given 
the totality of the circumstances. Adjudicators will look at various 
factors, including all factors identified by the applicant, and may 
consider whether the evidence supports providing compelling 
circumstances employment authorization, such as where the high-skilled 
nonimmigrant worker is facing retaliation from the employer for 
engaging in protected conduct, where loss of work authorization would 
result in significant disruption to the employer or cause significant 
harm to the worker, or other circumstances of similar magnitude.
    DHS acknowledges that many beneficiaries eagerly await the 
opportunity to become lawful permanent residents. The Department works 
closely with DOS to improve the immigrant visa processing system, but 
notes that it is inevitable that beneficiaries may experience long 
waits and that processing times will vary. As indicated in the NPRM, 
DHS does not believe that a long wait for an immigrant visa constitutes 
a compelling circumstance on its own. Many workers who face a lengthy 
wait for an immigrant visa, including those who have reached their 
statutory maximum time period in nonimmigrant status, often face 
difficult choices. DHS does not consider that these common 
consequences, on their own, would amount to compelling circumstances. 
Nor does DHS believe that many of the other scenarios suggested by 
commenters involve compelling circumstances on their own. Home 
ownership, notable academic qualifications, or dissatisfaction with a 
position or salary, standing alone, do not rise to the level of a 
compelling circumstance. However, any one of these situations could 
rise to the level of compelling circumstances in combination with other 
circumstances.
    Likewise, unemployment, in and of itself, will generally not be 
considered a compelling circumstance. However, unemployment could rise 
to the level of a compelling circumstance if, for example, the 
applicant demonstrates that the unemployment was a result of serious 
illness, employer retaliation, or would result in substantial harm or 
significant employer disruption, as described above and in the NPRM. 
See 80 FR 81899, at 81925. The compelling circumstances requirement is 
a higher standard than mere inconvenience, and the applicant would need 
to establish the harm resulting from the loss of employment and the 
benefits to be gained by being able to continue employment in the 
United States.
    DHS closely considered comments advocating for protection of 
derivatives. DHS has determined it is appropriate to extend the 
benefits provided by the compelling circumstances provision to spouses 
and children of principal beneficiaries whose employment authorization 
has not been terminated or revoked. See final 8 CFR 204.5(p)(2). DHS, 
however, purposefully made the determinative factor the principal's 
status, because it is the principal's status that forms the basis for 
the family's presence in the United States. A principal beneficiary, 
however, would be able to present evidence that, for example, his or 
her departure will negatively impact the derivative family member's 
professional career or disrupt the ongoing education of the employee's 
child, and DHS will consider these factors together with all supporting 
factors as part of the overall analysis.
    DHS also specifically considered comments expressing concern for 
children who may ``age out'' or have recently ``aged out'' of 
immigration benefit eligibility. DHS notes that, by statute, once a 
person turns 21, he or she is no longer a ``child'' for purposes of the 
INA, subject to certain statutory exceptions by which individuals who 
surpass that age are or may be considered to remain a ``child'' by 
operation of law.\50\ See INA 101(b)(1) and 203(d), 8 U.S.C. 1101(b)(1) 
and 1153(d). Such an individual would no longer qualify as an eligible 
dependent beneficiary of the principal's Form I-140 petition and would 
not be able to immigrate to the United States on that basis. As such, 
DHS will not extend the benefits of a compelling circumstances 
employment authorization to children who have aged out and will not 
consider the potential for aging-out as a per se compelling 
circumstance standing alone.
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    \50\ The Child Status Protection Act (CSPA) was enacted on 
August 6, 2002, and provides continuing eligibility for certain 
immigration benefits to the principal or derivative beneficiaries of 
certain benefit requests after such beneficiaries reach 21 years of 
age. See Public Law 107-208; INA sections 201(f), 203(h), 204(k) 
207(c)(2), and 208(b)(3), 8 U.S.C. 1151(f), 1153(h), 1154(k), 
1157(c)(2), and 1158(b)(3). Specifically, the CSPA addresses certain 
situations involving delays in the adjudication of petitions or 
applications. The CSPA has wide applicability, covering family-
sponsored and employment-based beneficiaries, Diversity Visa 
immigrants, refugees, and asylees.
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    While circumstances relating to a business start-up could be 
relevant to a presentation of compelling circumstances, an interest in 
entrepreneurship standing alone cannot support an employment 
authorization request based on a compelling circumstance. With regard 
to Form I-140 petitions approved in the EB-2 category based on a 
national interest waiver, in this final rule DHS is confirming that 
beneficiaries of approved Form I-140 petitions under the EB-2 category, 
which include national interest waiver beneficiaries and physicians 
working in medically underserved areas, are eligible to apply for 
employment authorization based on compelling circumstances, as long as 
they meet all other applicable requirements.\51\
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    \51\ DHS observes that physicians receiving employment 
authorization based on compelling circumstances who have sought a 
national interest waiver based on an immigrant visa petition under 
section 203(b)(2)(B)(ii) of the Act remain subject to all 
requirements relating to the national interest waiver. Similarly, a 
physician who may be eligible for a compelling circumstance EAD may 
still be subject to, and limited by, any applicable obligations 
under sections 212(e) and 214(l) of the Act.
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v. Nonimmigrant and Immigrant Classifications of Individuals Eligible 
To Request Employment Authorization Based on Compelling Circumstances
    In the NPRM, DHS proposed to limit the discretionary grant of 
employment authorization based on compelling circumstances only to 
certain workers who are in the United States in E-3, H-1B, H-1B1, O-1, 
or L-1 nonimmigrant status and who are the beneficiaries of approved 
employment-based immigrant

[[Page 82431]]

visa petitions. See proposed 8 CFR 204.5(p)(1)(i). DHS invited public 
comment on the proposed nonimmigrant classifications, including whether 
other nonimmigrant classifications should be considered. DHS also 
invited public comment on the requirement that applicants be the 
beneficiaries of approved EB-1, EB-2, or EB-3 immigrant visa petitions. 
These comments are addressed below.
    Comment. Commenters specifically asked DHS to expand eligibility 
for the compelling circumstances provision to other nonimmigrant 
classifications, including to the E-1, E-2, and J-1 nonimmigrant 
classifications. Some of these commenters noted that nonimmigrants in 
these classifications could experience the same types of hardship as 
nonimmigrants covered by the proposed rule.
    Response. In developing the proposed rule, DHS carefully considered 
the classes of nonimmigrant workers who should be eligible to apply for 
compelling circumstances EADs. Providing additional benefits to E-1 and 
E-2 nonimmigrants would impact international treaties and foreign 
policy considerations and DHS therefore believes it is inappropriate to 
include them in this rulemaking. Likewise, changes related to J-1 
nonimmigrants could not be made solely by DHS, as the program is 
administered predominantly by DOS. Moreover, many J-1 nonimmigrants are 
statutorily required to complete a 2-year foreign residence requirement 
before they can remain in the United States, and providing them with 
employment authorization in many circumstances could be contrary to 
these statutory restrictions. See INA 101(j), 212(e), 214(l), and 248, 
8 U.S.C. 1101(j), 1182(e), 1184(l) and 1258. Therefore, DHS declines to 
include these classifications as eligible for employment authorization 
for compelling circumstances.
    Comment. One commenter focused on DHS's inclusion of E-3 and H-1B1 
nonimmigrants in the compelling circumstances provision, and asked 
whether DHS intended to include E-3 and H-1B1 nonimmigrants among the 
categories of nonimmigrants that are afforded ``dual intent.''
    Response. DHS notes that the doctrine of ``dual intent'' is beyond 
the scope of this regulation. DHS notes, however, that individuals in 
these categories can be the beneficiaries of approved Form I-140 
petitions while continuing to maintain nonimmigrant status.
    Comment. One commenter requested that DHS grant compelling 
circumstances EADs to individuals in the employment-based fourth 
preference (EB-4) category, including certain religious workers; Iraqis 
who have assisted the United States; Iraqi and Afghan translators; 
employees of international organizations; and others. The commenter 
further noted that some Iraqi translators have been neglected by the 
U.S. immigration system, and that DHS, through the NPRM, was continuing 
this asserted neglect.
    Response. DHS aligned this rulemaking with the principles 
underlying AC21 and ACWIA, codifying longstanding policies and 
practices implementing those statutes, and building upon those 
provisions to provide stability and flexibility to certain foreign 
workers who are successfully sponsored for LPR status by their 
employers. DHS has carefully tailored the compelling circumstances EAD 
provision as a stopgap measure for certain high-skilled individuals 
facing particularly difficult situations who are on the path to lawful 
permanent residence under the EB-1, EB-2 and EB-3 immigrant visa 
classifications.
    DHS declines the commenter's request to include EB-4 beneficiaries 
as eligible to apply for employment authorization based on compelling 
circumstances because Congress, with very limited exception,\52\ did 
not prioritize the EB-4 visa category in AC21, which this rule was 
broadly intended to complement. Moreover, DHS did not propose to expand 
the scope of the rulemaking to address issues related to EB-4 
beneficiaries, and therefore cannot adopt the commenter's suggestion.
---------------------------------------------------------------------------

    \52\ See AC21 104(a).
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vi. Application Timeframes for Compelling Circumstances EADs
    Comment. One commenter suggested that individuals should be 
permitted to apply for an initial compelling circumstances EADs well in 
advance (a minimum of 180 days) of the expiration of their current 
nonimmigrant status. Other commenters sought clarification on the 
timing requirements for renewal applications.
    Response. DHS believes that establishing a timeframe for 
individuals to request initial employment authorization based on 
compelling circumstances is not necessary. Under this rule, an 
applicant can file a Form I-765 application to request an initial EAD 
based on compelling circumstances at any time before the expiration of 
his or her nonimmigrant status. For approval, the applicant must be 
able to demonstrate that he or she meets the criteria in 8 CFR 
204.5(p)(1) or (2) on the date of filing, including that compelling 
circumstances exist. DHS notes that a Form I-765 application filed far 
in advance of the expiration of the foreign national's nonimmigrant 
status may be adjudicated before such status expires; however, DHS's 
approval of the employment authorization based on compelling 
circumstances would still be limited to an initial grant of 1 year 
beginning on the date of approval.
    With respect to the timing of the renewal application, DHS has 
reviewed the renewal provision as proposed and agrees with commenters 
that the proposed regulatory text was ambiguous regarding the timing of 
renewal applications. Therefore, DHS clarifies in the final rule at 
Sec.  204.5(p)(3) that applications for renewal of employment 
authorization based on compelling circumstances must be filed by the 
applicant prior to the expiration of his or her current employment 
authorization. Requiring renewal applications to be properly filed 
prior to the expiration of the current employment authorization is 
consistent with DHS's goal of promoting ongoing employment and also 
encourages such applicants to avoid accruing unlawful presence, which 
could affect their eligibility to obtain LPR status. Like other Form I-
765 applicants, individuals applying for employment authorization based 
on compelling circumstances, at either the initial or renewal stage, 
must be in the United States when applying for the benefit.
    Comment. One commenter asked DHS to clarify whether a beneficiary 
in a grace period may submit an initial request for employment 
authorization pursuant to compelling circumstances.
    Response. DHS affirms that beneficiaries may file an initial 
application for a compelling circumstances EAD if, on the date of 
filing, they are in a period authorized by Sec.  214.1(l)(l) or (2), as 
well as any other grace period authorized by this chapter. See final 8 
CFR 204.5(p)(1)(i).
vii. EAD Validity Period
    Comment. Some commenters opposed granting extensions in 1-year 
increments and requested that extensions instead be granted in longer 
increments. Several commenters noted that providing employment 
authorization in 1-year increments would cause certain beneficiaries to 
incur filing fees and other expenses on an annual basis. Another 
commenter requested that certain individuals be granted ``indefinite 
renewals for 3 years'' if they have been in H-1B status for 10 years 
and have had their Form I-140 petitions approved for 5 years. 
Similarly, one

[[Page 82432]]

commenter requested employment authorization under compelling 
circumstances for up to 3 years so that the validity period would be in 
line with the initial periods of petition approval for individuals in 
the H-1B and L-1 classifications and consistent with section 104 of 
AC21. Commenters contended that such proposals would provide increased 
certainty and the ability to plan, while minimizing the possibility of 
employment disruptions.
    Response. DHS disagrees that a single grant of employment 
authorization under compelling circumstances should last longer than 1 
year. The compelling circumstances provision is meant to be a stopgap 
measure for nonimmigrant workers facing particularly difficult 
circumstances outside of their control, such as a serious illness, 
employer retaliation, significant disruption to the employer, or other 
substantial harm. The compelling circumstances EAD is not a substitute 
for completing the employment-based immigrant visa process or for 
obtaining nonimmigrant classifications authorizing foreign nationals to 
work or live in the United States. While some nonimmigrants may 
experience compelling circumstances that last beyond one year, DHS 
anticipates many of the compelling circumstances presented will be 
resolved within that timeframe. DHS thus intends to require 
confirmation that a foreign national's circumstances justify an 
extension of employment authorization each year to ensure that such 
employment authorization continues to be merited. DHS confirms that 
employment authorization for compelling circumstances will be granted 
only in 1-year increments.
viii. Visa Bulletin Dates
    Comment. Several commenters generally objected to conditioning 
compelling circumstances EADs on the unavailability of immigrant visas, 
and they requested that DHS remove all references to the State 
Department Visa Bulletin in the compelling circumstances provision. 
Commenters asserted that this restriction weakens the compelling 
circumstances provision because a beneficiary with an available 
immigrant visa may still have a lengthy wait before receiving 
independent employment authorization. Other commenters objected to the 
references to priority dates in the regulatory text because of the 
unpredictability of the Visa Bulletin's priority date movement.
    Response. DHS disagrees with commenters who requested eliminating 
the requirement that an immigrant visa must not be immediately 
available and authorized for issuance to an individual at the time the 
application is filed. DHS designed this provision specifically to 
assist those individuals who otherwise may apply for and be granted an 
immigrant visa or adjustment of status but for the unavailability of an 
immigrant visa. The Department determined that linking eligibility for 
an EAD based on compelling circumstances to the authorization to issue 
an immigrant visa will provide stability to individuals already on the 
path to lawful permanent residence. The Visa Bulletin notifies 
individuals whether visas are authorized for issuance.
    At the same time, DHS also wants to ensure that foreign workers 
whose priority dates have already been reached take appropriate 
measures to apply for permanent residence, as the compelling 
circumstances EAD is not a substitute for lawful permanent residence. 
DHS, therefore, believes it is reasonable to condition compelling 
circumstances EADs to the unavailability of immigrant visas, thereby 
ensuring that foreign workers avail themselves of the opportunity to 
apply for and obtain lawful permanent residence when able to do so.
    Comment. A few commenters requested that DHS clarify which chart in 
the newly reformatted Visa Bulletin would govern the eligibility for 
individuals seeking employment authorization based on compelling 
circumstances (i.e., the ``Application Final Action Date'' chart or the 
``Dates for Filing Employment-Based Visa Applications'' chart).
    Response. All references in 8 CFR 204.5(p) to the Visa Bulletin 
dates are to the ``Final Action Date'' chart. DHS intends that this 
date will be used to determine eligibility for both the initial and 
renewal applications for employment authorization. To provide 
clarification in this regard, DHS modified 8 CFR 204.5(p)(1)(ii) by 
replacing the phrase ``immediately available'' with ``authorized for 
issuance'' to signal that the relevant date for eligibility for an 
initial grant of employment authorization would be the Final Action 
Date for the principal beneficiary's preference category and country of 
chargeability that was effective on the date the application for 
employment authorization, or successor form, is filed.
ix. Renewals of Employment Authorization Granted Pursuant to Compelling 
Circumstances
    Comment. Several commenters expressed confusion about the 
regulatory provisions governing renewals of compelling circumstances 
EADs and were concerned that, as proposed, the provisions were 
internally inconsistent and even in conflict with one another. In 
particular, commenters stated that interactions between the priority 
date limitations proposed for initial applicants (proposed 8 CFR 
204.5(p)(1)(ii)), eligibility for renewals without demonstrating 
compelling circumstances (proposed 8 CFR 204.5(p)(3)(i)(B)), and 
ineligibility grounds (proposed 8 CFR 204.5(p)(5)(ii)) may prevent some 
eligible individuals from renewing their compelling circumstances EADs.
    Response. DHS agrees with commenters that the final rule needs to 
clarify when an applicant can qualify for a renewal by demonstrating 
compelling circumstances or based solely on his or her priority date. 
Moreover, DHS recognizes that the proposed regulatory language at Sec.  
204.5(p) could have led commenters to conclude that the provision was 
internally inconsistent or contradictory. In the NPRM, DHS proposed to 
require initial applicants to show that an immigrant visa was not 
immediately available to the principal beneficiary. See proposed 8 CFR 
204.5(p)(1)(ii). For renewals, DHS proposed that principal 
beneficiaries would need to demonstrate either that they continue to 
face compelling circumstances or that their priority dates are ``1 year 
or less'' (either before or after) from the date visas are authorized 
for issuance according to the current Visa Bulletin. See proposed 8 CFR 
204.5(p)(3)(i)(A) and (B). In addition, DHS proposed at Sec.  
204.5(p)(5)(ii) that an individual would be ineligible to apply for or 
renew a compelling circumstances EAD if ``[t]he principal beneficiary's 
priority date is more than 1 year beyond the date immigrant visas were 
authorized for issuance'' according to the Visa Bulletin in effect at 
the time of filing.
    As noted by commenters, the proposed ineligibility ground based on 
a priority date being current for more than one year was superfluous 
with respect to initial applicants (who were required to show that a 
visa was not immediately available), as their eligibility would have 
already ended at the time their immigrant visa was authorized for 
issuance. The proposed ineligibility ground was also superfluous with 
respect to the second renewal criterion (i.e., that the difference 
between the beneficiary's priority date and the date visas are 
authorized for issuance must be ``1 year or less''), because that 
ineligibility ground was already embedded within that renewal ground. 
In addition, there was significant confusion as to the

[[Page 82433]]

interaction between the proposed ineligibility ground and the first 
ground for renewal (i.e., that the beneficiary continues to demonstrate 
compelling circumstances). DHS acknowledges that the proposed 
ineligibility ground was superfluous to the initial eligibility ground 
and the second renewal criterion, and that the provisions were 
confusing as written. Therefore, without changing the eligible 
population as identified in the NPRM for the compelling circumstances 
EAD, DHS has streamlined the ineligibility and renewal grounds to 
eliminate any superfluous overlap and to clarify eligibility for 
renewal under the Final Rule.
    In response to public comment, DHS is simplifying the renewal 
criteria for compelling circumstances EADs. As modified, the final rule 
makes clear that a principal beneficiary seeking to renew an EAD based 
on compelling circumstances remains eligible if his or her priority 
date is not authorized for immigrant visa issuance with respect to his 
or her preference category and country of chargeability based on the 
Final Action Date in the Visa Bulletin in effect on the date the 
renewal application is filed. This modification tracks the eligibility 
criteria for the initial application for the EAD, and therefore should 
be readily understood by all parties, making it easier for both the 
public and USCIS to determine whether someone is eligible for renewal 
under that basis. DHS retains the second renewal criterion where a 
principal beneficiary will be eligible to renew the EAD if his or her 
priority date is one year or less (either before or after) of the Final 
Action Date in the Visa Bulletin in effect on the date the renewal 
application is filed. For purposes of greater clarity, in this final 
rule DHS has included an illustrative example in the regulatory text 
applicable to renewal applications by principal beneficiaries based on 
the Visa Bulletin in effect on the date the renewal application is 
filed. In addition to these changes, DHS made additional edits in this 
provision to clarify the Visa Bulletin in effect on the date the 
application for employment authorization is filed establishes the Final 
Action date for purposes of a renewal application.
    Together, the renewal criteria operate to preclude eligibility to 
individuals for whom a visa has been authorized for issuance for over 
one year. Therefore, DHS removed the separate ineligibility criteria 
from Sec.  204.5(p)(5) as unnecessary. DHS believes that these changes 
should eliminate the confusion or inconsistency in the regulatory 
provisions.
    Comment. Several commenters suggested that individuals with 
compelling circumstances EADs be able to renew such EADs without 
restriction (i.e., without needing to meet the proposed eligibility 
criteria for renewal). Commenters submitted a variety of reasons for 
requesting this revision, including that such a change would: Be 
``truly useful for the immigrant community;'' help stop employer 
exploitation of workers; provide greater certainty to immigrants 
waiting to become LPRs; and help address the lack of available 
immigrant visas. In addition, several commenters questioned the 
usefulness of allowing for renewal where the applicant's priority date 
is less than 1 year from the current cut-off date for the relevant 
employment-based category and country of nationality in the most 
recently published Visa Bulletin. Some commenters sought clarification 
about the situations in which an applicant may seek renewal of 
compelling circumstances EADs.
    Response. DHS agrees that the renewal of the employment 
authorization under this provision could be based on the same 
compelling circumstances that supported the initial grant of a 
compelling circumstances EAD. Moreover, DHS clarifies that individuals 
may also base their renewal applications on new compelling 
circumstances that may exist on the date of filing the renewal 
application.
    DHS disagrees with the suggestion that no additional restrictions 
tied to authorization for immigrant visa issuance should apply to 
renewal eligibility. DHS intends this provision to provide short-term 
relief to certain high-skilled workers who are well on their way to LPR 
status to help them when they are facing compelling circumstances while 
they wait for their immigrant visas to become available. Consistent 
with that intent, applicants seeking to benefit from employment 
authorization based on compelling circumstances must also continue to 
pursue lawful permanent residence. Therefore, DHS believes it 
appropriate to deny a renewal application, even when compelling 
circumstances continue to be shown, in cases where the applicant should 
already have had ample time to obtain an immigrant visa and become a 
lawful permanent resident. Thus, renewal will not be granted under any 
circumstances if the applicant's priority date is more than one year 
earlier than the applicable Final Action date on the Visa Bulletin in 
effect at the time of filing the renewal application. In cases in which 
the Visa Bulletin at the time of a renewal application is filed 
indicates that the beneficiary's priority date is not authorized for 
immigrant visa issuance, applicants can seek renewal of their 
employment authorization based on a showing of new or continuing 
compelling circumstances.
    In addition, DHS believes that important additional flexibility for 
principal beneficiaries of Form I-140 petitions results from retaining 
the second ground for renewal, which allows applicants to renew 
employment authorization without a showing of compelling circumstances 
if the applicant's priority date is close to becoming or recently 
became eligible for immigrant visa issuance (i.e., is one year or less 
either before or after the date on which immigrant visas are authorized 
for issuance). This provision recognizes that applicants, most of whom 
are high-skilled workers who have invested a substantial amount of time 
in the United States, are at advanced stages in the immigration process 
and, after waiting many years, may be able to obtain lawful permanent 
residence in the near future. If the immigrant visa has recently been 
authorized for issuance or may be authorized for issuance in the near 
future, it is consistent with the purpose for this provision to 
continue the employment authorization, even if the compelling 
circumstances that justified the initial employment authorization no 
longer exist, to avoid the possibility that there will be a significant 
break in employment authorization late in an individual's lawful 
permanent residence process that would jeopardize his or her ultimate 
eligibility to obtain lawful permanent resident status or unnecessarily 
disrupt the business of his or her employer.
    Because there was confusion reflected in many comments with regard 
to eligibility to make a renewal request and the relevance of the Visa 
Bulletin, DHS has revised the regulatory text to foster a better 
understanding and simplify the use and implementation of the compelling 
circumstances EAD renewal process by both applicants and USCIS 
adjudicators. DHS has edited the text at 8 CFR 204.5(p)(3)(i)(A) to 
mirror the requirements for initial eligibility, as well as to 
eliminate a separate ineligibility ground (see proposed 8 CFR 
204.5(p)(5)(ii)) that caused great confusion among commenters. In 
summary, in the final rule at 8 CFR 204.5(p)(3)(i), the principal 
beneficiary may apply for a renewal of his or her employment 
authorization in one of two ways.
    First, Sec.  204.5(p)(3)(i)(A) allows the principal beneficiary to 
apply for renewal of employment authorization if

[[Page 82434]]

he or she continues to face compelling circumstances and an immigrant 
visa is not authorized for issuance to the principal beneficiary based 
on his or her priority date listed in the Visa Bulletin for the 
applicable preference category and country of chargeability in effect 
on the date of filing. This first renewal ground mirrors the initial 
eligibility requirements set forth at final Sec.  204.5(p)(1)(ii) and 
(iii).
    Consequently, under this final rule, a principal beneficiary who 
continues to experience compelling circumstances, and whose immigrant 
visa is not authorized for issuance, may be able to renew the 
compelling circumstances EAD if DHS determines that the issuance of 
employment authorization is justified.
    Second, final 8 CFR 204.5(p)(3)(i)(B) allows the principal 
beneficiary to apply for a renewal of his or her employment 
authorization without having to show compelling circumstances if, based 
on his or her priority date, he or she is near the date that an 
immigrant visa could be issued under the applicable preference category 
and country of chargeability. Specifically, the difference between the 
principal beneficiary's priority date and the Final Action Date must be 
1 year or less according to the Visa Bulletin in effect on the date the 
renewal application is filed. This 1-year limitation extends both 
before and after the specified Final Action Date, thereby allowing 
beneficiaries whose priority dates are 1 year or less before the 
relative current priority date, as well as those beneficiaries whose 
priority dates are 1 year or less after the relative current priority 
date, to request renewal of their EADs. Allowing for renewals of 
employment authorization without a demonstration of continuing 
compelling circumstances provides a bridge for those individuals who 
may be issued an immigrant visa in the near future. As enumerated in 
the proposed rule at 8 CFR 204.5(p)(5), this renewal ground 
incorporates an important DHS policy goal of encouraging individuals to 
become lawful permanent residents by limiting eligibility for a 
compelling circumstances EAD to only those whose priority dates have 
been current for one year or less according to the Visa Bulletin in 
effect on the date the renewal is filed. DHS believes this provides a 
reasonable window during which an individual may either apply for 
adjustment of status, and thereby be issued employment authorization 
pursuant to that filing, or complete the immigrant visa process abroad. 
Additionally, DHS has revised this provision to clarify which Visa 
Bulletin governs for purposes of calculating the difference between the 
beneficiary's priority date and the Final Action Date.
    To avoid further confusion, DHS provides the following examples to 
facilitate a better understanding of the eligibility requirement for 
renewal with respect to the Visa Bulletin, and DHS has incorporated one 
of these examples in the regulatory text:
     The first example involves a Visa Bulletin Final Action 
cut-off date of November 1, 2000 for the beneficiary's preference 
category and country of chargeability. If the beneficiary is basing the 
renewal application on compelling circumstances, his or her priority 
date must be on or after November 1, 2000 to apply for a renewal under 
Sec.  204.5(p)(3)(i)(A), as immigrant visas will not be authorized for 
issuance to beneficiaries with priority dates on or after November 1, 
2000.
     The second example again involves a Visa Bulletin Final 
Action cut-off date of November 1, 2000, but the beneficiary is seeking 
a renewal under 8 CFR 204.5(p)(3)(i)(B), which provides that ``[t]he 
difference between the principal beneficiary's priority date and the 
date upon which 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 Visa Bulletin on the date the 
application for employment authorization is filed.'' Because this 1-
year window extends both ways--before and after the specified Final 
Action Date--the beneficiary's priority date can be as early as October 
31, 1999 or as late as October 31, 2001. Beneficiaries qualifying for 
renewal under this alternative need not show compelling circumstances 
to meet the eligibility criteria. See final 8 CFR 204.5(p)(3)(i)(B). 
If, however, the beneficiary's priority date is on or before October 
30, 1999, he or she would be ineligible to renew the compelling 
circumstances EAD under the final rule. If the priority date is on or 
after November 1, 2001, the beneficiary could not seek a renewal under 
the priority date range described in final 8 CFR 204.5(p)(3)(i)(B), but 
may be eligible to renew if he or she is able to demonstrate continuing 
compelling circumstance described in final 8 CFR 204.5(p)(3)(i)(A).
    Finally, to implement this provision, DHS is revising Form I-765 
and accompanying form instructions with this final rule and will 
conduct public outreach and publish guidance explaining the filing 
requirements and eligibility criteria for this new employment 
authorization category. Information about renewing applications for 
employment authorization granted pursuant to compelling circumstances 
will be included.
x. Automatically Granting Advance Parole to Individuals Who Have 
Compelling Circumstances EADs
    Comment. Some commenters requested that DHS automatically provide 
advance parole \53\ in conjunction with compelling circumstances EADs. 
Some of these commenters indicated that the President had promised to 
grant advance parole to certain individuals, and they urged DHS to 
provide such an immigrant benefit here. The commenters also requested 
that DHS allow such individuals to adjust their status to lawful 
permanent residence after being paroled into the United States once an 
immigrant visa became available to them.
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    \53\ As explained on the Form I-131, Application for Travel 
Document, and the form instructions, advance parole documents allow 
individuals to return to a United States port of entry after 
temporary foreign travel. See USCIS Web site, Form I-131, 
Application for Travel Document, available at https://www.uscis.gov/i-131; see also 212(d)(5) of the INA, 8 U.S.C. 1182(d)(5).
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    Response. Section 212(d)(5)(A) of the INA, 8 U.S.C. 1182(d)(5)(A), 
provides the Secretary with discretionary authority to parole an 
individual into the United States temporarily ``only on a case-by-case 
basis for urgent humanitarian reasons or significant public benefit.'' 
See also 8 CFR 212.5. Neither the President nor the Secretary, in his 
November 20, 2014 memorandum, specified that parole may be extended to 
foreign workers who are the beneficiaries of either a pending or an 
approved Form I-140 petition.\54\ A DHS officer may, however, grant 
parole to individuals who are beneficiaries of approved Form I-140 
petitions if, in the officer's discretion, the parole either would be 
for ``urgent humanitarian reasons'' or provide a ``significant public 
benefit.''
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    \54\ See Memo from Jeh Charles Johnson, Secretary of Homeland 
Security, ``Policies Supporting U.S. High-Skilled Business and 
Workers'' (Nov. 20, 2014), available at http://www.dhs.gov/sites/default/files/publications/14_1120_memo_business_actions.pdf.
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    Importantly, as already noted, individuals who are seeking lawful 
permanent residence based on classification as an employment-based 
immigrant are generally barred by statute from applying to adjust their 
status in the United States if they are not in lawful nonimmigrant 
status. See INA 245(c)(2) and (7), 8 U.S.C. 1255(c)(2) and (7). 
Although INA 245(k), 8 U.S.C. 1255(k), enables certain individuals who 
failed to continuously maintain a lawful status for up to 180

[[Page 82435]]

days to apply for adjustment of status, these individuals must be 
present in the United States pursuant to a lawful admission. 
Individuals who are paroled into the United States, however, are not 
considered to be ``admitted'' into the United States. See INA 
101(a)(13)(B) and 212(d)(5)(A), 8 U.S.C. 1101(a)(13)(B) and 
1182(d)(5)(A). Therefore, an individual who is granted advance parole, 
leaves the United States, and reenters on parole is not eligible for 
adjustment of status pursuant to section 245(k).
    As such, granting advance parole to individuals who receive 
compelling circumstances EADs would not, as a rule, make them eligible 
for employment-based adjustment of status or otherwise enhance 
stability or certainty in the efforts of these individuals to become 
lawful permanent residents. DHS thus will not automatically grant 
advance parole in conjunction with all compelling circumstances EADs. 
However, to better assist individuals with compelling circumstances 
EADs who need to travel, DHS will consider granting advance parole, as 
appropriate for urgent humanitarian reasons or significant public 
benefit, to such individuals on a case-by-case basis.
xi. Employment Authorization Parity for Legal and Undocumented Workers, 
Including Individuals Granted Deferred Action for Childhood Arrivals 
(DACA)
    Comment. Commenters asked why Deferred Action for Childhood 
Arrivals (DACA) recipients are not required to demonstrate compelling 
circumstances in order to obtain employment authorization and 
questioned whether being undocumented in the United States is 
sufficient to demonstrate compelling circumstances. These commenters 
noted that applying compelling circumstances only to nonimmigrants 
seeking an independent basis of employment authorization and not to 
DACA recipients sets an unfair higher bar for nonimmigrants and rewards 
individuals who came to the United States unlawfully relative to those 
who have abided by U.S immigration laws.
    Many commenters stated that granting employment authorization to 
DACA recipients, while declining to do so for nonimmigrants, provides a 
significant advantage to undocumented individuals and encourages 
unauthorized immigration. Other commenters stated that it is unfair to 
provide employment authorization to undocumented individuals through 
DACA and not to nonimmigrants abiding by complex U.S. immigration laws 
and currently suffering from a lack of job mobility while awaiting 
available immigrant visas. These commenters highlighted the benefits of 
independent employment authorization, including freedom from what they 
perceive as restrictive and immobile H-1B employment, increased 
opportunity for upward mobility with their current employer, and 
greater mobility within the U.S. job market in general. One commenter 
stated that denying independent employment authorization for 
nonimmigrants with approved Form I-140 petitions creates the equivalent 
to modern day slavery for nonimmigrant employees, while DACA recipients 
are allowed to work for whatever employer they choose. A number of 
commenters stated that their dependent children, who came to the United 
States legally, should be granted the same benefits as DACA recipients. 
Several commenters expressed the opinion that being in the United 
States in a legal status is more difficult than being in the United 
States under a grant of DACA.
    Response. As an initial matter, although DACA requestors do not 
have to demonstrate compelling circumstances, DACA recipients, like 
other deferred action recipients, must show ``economic necessity'' for 
employment.\55\ Further, DACA is strictly limited to individuals who 
are removable from the United States, meet other certain guidelines 
(e.g., that they came to the United States under the age of sixteen; 
continuously resided in the United States since June 15, 2007; were 
under the age of 31 as of June 15, 2012; and have not been convicted of 
certain crimes or otherwise pose a threat to national security or 
public safety), and merit a favorable exercise of discretion.\56\ As a 
result, the DACA process does not provide incentives for individuals to 
unlawfully migrate to the United States. DACA does not apply to all 
undocumented individuals who entered the United States as children. 
Even for those individuals who do satisfy the DACA guidelines, not all 
individuals receive DACA because of the discretionary nature of the 
process.
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    \55\ 8 CFR 274a.12(c)(14).
    \56\ See DACA Frequently Asked Questions at https://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/frequently-asked-questions.
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    DHS disagrees with commenters who contend that the limitations 
placed on the compelling circumstances EAD give DACA recipients an 
advantage over nonimmigrant workers. DACA recipients are individuals 
who are removable from the United States but whose removal is deferred. 
They do not have a lawful immigration status either before or after 
receiving DACA and instead are simply provided with relief from removal 
for periods of two years at a time, if they remain eligible. DACA is a 
discretionary policy related to enforcement and removal and is not 
comparable to individuals with nonimmigrant status. DHS considers DACA 
requests pursuant to an exercise of discretion on a case-by-case basis. 
Nonimmigrant workers are in a more advantageous position than DACA 
recipients with respect to the immigration laws by virtue of being in 
the United States in a lawful immigration status. Among other things, 
presence in nonimmigrant status is not a basis for removability, family 
members of nonimmigrants are typically able to obtain benefits through 
the nonimmigrant, and nonimmigrants are better situated with respect to 
eligibility to pursue lawful permanent residence and, thereafter, U.S. 
citizenship.

G. Nonimmigrant Grace Periods

1. Description of Final Rule and Changes From NPRM
    Under the final rule, DHS may provide grace periods of up to 10 
days before the petition validity period (or other authorized validity 
period) begins, and of up to 10 days after the validity period ends to 
individuals in certain employment-authorized nonimmigrant visa 
classifications that previously have not been afforded these periods, 
namely the E-1, E-2, E-3, L-1 and TN classifications. See final 8 CFR 
214.1(l)(1). Similar grace periods are currently available to 
nonimmigrants with H-1B, O, and P classification. Extending such grace 
periods in these other classifications--which, like in the H-1B, O, and 
P classifications, are generally available to high-skilled individuals 
with authorized stays of multiple years--promotes stability and 
flexibility for such workers, thereby furthering goals consistent with 
those underlying AC21.
    In response to public comment, DHS is striking a phrase from the 
proposed regulation that was unnecessarily limiting and not fully 
consistent with how existing 10-day grace periods may be used by H, O 
and P nonimmigrants. Specifically, DHS is deleting from proposed 8 CFR 
214.1(l)(1) the phrase that could have been read to limit use of a 10-
day grace period only ``to prepare for departure from the United States 
or to seek an extension or change of status based on a subsequent offer 
of employment.'' As noted, this deletion will further the purpose of 
the NPRM proposal to extend to the E-1, E-2, E-

[[Page 82436]]

3, L-1 and TN nonimmigrant classifications a benefit similar to the one 
already available to the H, O, and P nonimmigrant classifications. DHS 
is also making minor technical edits to this provision.
    Under the final rule, DHS may also authorize a grace period of up 
to 60 days in the E-1, E-2, E-3, H-1B, H-1B1, L-1, and TN 
classifications during the period of petition validity (or other 
authorized validity period). See final 8 CFR 214.1(l)(2). In response 
to public comments, DHS is retaining this provision while adding the O-
1 visa classification to the list of nonimmigrant classifications 
eligible for the 60-day grace period. To enhance job portability for 
these high-skilled nonimmigrants, this rule establishes a grace period 
for up to 60 consecutive days, or until the existing validity period 
ends, whichever is shorter, whenever employment ends for these 
individuals. The individual may not work during the grace period. An 
individual may benefit from the 60-day grace period multiple times 
during his or her total time in the United States; however, this grace 
period may only apply one time per authorized nonimmigrant validity 
period. DHS believes that limiting this grace period to one instance 
during each authorized validity period balances the interests of 
nonimmigrant flexibility with the need to prevent abuse of this 
provision.
    This 60-day grace period further supports AC21's goals of providing 
improved certainty and stability to nonimmigrants who need to change 
jobs or employers. The 60-day grace period would provide needed 
flexibility to qualifying nonimmigrants who face termination of 
employment prior to the end of their petition validity periods. The 
grace period, for example, allows such nonimmigrants to remain in the 
United States without violating their status and potentially obtain new 
job offers from employers that seek to file new nonimmigrant petitions, 
and requests for an extension of stay, on their behalf. In such cases, 
even though prior employment may have terminated several weeks prior to 
the filing of the new petition, DHS may consider such an individual to 
have not violated his or her nonimmigrant status and allow that 
individual to extend his or her stay with a new petitioner, if 
otherwise eligible. If the new petition is granted, the individual may 
be eligible for an additional grace period of up to 60 days in 
connection with the new authorized validity period.
    Finally, the final rule at 8 CFR 214.1(l)(3) makes clear that the 
nonimmigrant worker, during either a 10-day or 60-day grace period, may 
apply for and, if otherwise eligible, be granted an extension of stay 
or change of status. The beneficiary may also commence employment under 
H-1B portability per Sec.  214.2(h)(2)(i)(H), discussed in some detail 
below, if otherwise eligible. To further effectuate the intended 
purpose of these provisions, DHS is also making clarifying edits to the 
regulatory text at Sec.  214.1(l)(2), and (l)(3).
2. Public Comments and Responses
i. Length of the 10-Day Grace Periods
    Comment. While numerous commenters supported the proposal to make 
10-day grace periods available to additional high-skilled nonimmigrant 
workers, one commenter suggested that the 10-day grace periods be 
lengthened to 15 or 30 days to provide nonimmigrant workers additional 
time to wrap up affairs after extended periods of stay in the United 
States.
    Response. DHS is not adopting the commenter's suggestion to provide 
longer grace periods of up to 15 or 30 days. DHS has long provided 10-
day grace periods in the H-1B, O, and P nonimmigrant classifications, 
and DHS has determined that such grace periods are sufficient to 
provide individuals in these classifications the time they need to 
initiate or conclude their affairs in the United States. Because 
individuals who obtain E-1, E-2, E-3, L-1 or TN classification are 
similarly situated to those who obtain H-1B, O, or P classification, 
DHS believes 10-day grace periods would also be sufficient for 
nonimmigrants in the former classifications.
ii. Eligibility for 10-Day Grace Periods
    Comment. Many commenters encouraged USCIS to broaden the classes of 
individuals eligible for the 10-day grace periods to include other 
nonimmigrant worker visa classifications. Commenters specifically 
requested that DHS add the following visa classifications to proposed 8 
CFR 214.1(l)(1): A, H-1B1, H-2B, H-3, G, I, O, P, and Q.
    Response. DHS declines to adopt these suggestions. First, DHS 
already provides a grace period of up to 10 days to some of these 
classifications, including the H-2B, H-3 O and P categories. See 8 CFR 
214.2(h)(13)(i)(A), 8 CFR 214.2 (o)(10) and 8 CFR 214.2 (p)(12). 
Second, DHS is unable to extend authorized periods of admission to H-
1B1 nonimmigrants through the use of such grace periods. The INA 
specifies that the admission for H-1B1 nonimmigrants ``shall be 1 
year,'' with extensions in 1 year increments. See INA 214(g)(8), 8 
U.S.C. 1184(g)(8). Third, this rulemaking is intended to benefit high-
skilled workers and their employers by streamlining the processes for 
employer sponsorship of such workers for immigrant visas, increasing 
job portability and otherwise providing stability and flexibility for 
such workers, and providing additional transparency and consistency in 
the application of DHS policies and practices related to high-skilled 
worker programs. Because several of the additional nonimmigrant 
classifications proposed by commenters are not focused on facilitating 
the employment of high-skilled workers by employers in the United 
States, DHS believes providing grace periods in these classifications 
would not align with the purpose of this rule. For these reasons, DHS 
believes that the eligible classifications added to the final rule 
should be limited to individuals admissible in E-1, E-2, E-3, L-1 or TN 
classification, as well as their dependents.
iii. Miscellaneous Comments on 10-Day Grace Periods
    Comment. A few commenters suggested that DHS clarify whether the 
10-day grace periods will be reflected on the approved petition or 
whether those periods may be automatically assumed by nonimmigrant 
workers. Another commenter noted that CBP usually annotates the Form I-
94 when admitting an individual in H-1B classification to reflect the 
grace period of up to 10 days at the end of the H-1B authorized period 
of stay, but that the USCIS-issued Form I-797 Notice of Action for an 
approval of an extension of stay or change of status, which includes a 
Form I-94, does not reflect that grace period. This commenter further 
explained that, accordingly, if an individual is granted H-1B status 
pursuant to an extension of stay or change of status and remains in the 
United States in H-1B status for the petition's authorized validity 
period (i.e., without leaving and seeking readmission into the United 
States as an H-1B nonimmigrant), he or she will not have any evidence 
of having been granted the grace period. Finally, one commenter 
requested that USCIS add the following language to its Form I-797 
approval notices: ``Beneficiary may be admitted up to 10-days prior to 
the validity period of the petition and will have a 10-day grace period 
at the end of nonimmigrant status to depart the United States or apply 
for another nonimmigrant or immigrant status.''
    Response. The commenters correctly point out that USCIS does not 
presently provide grace periods of up to 10 days

[[Page 82437]]

before or after petition validity approval when issuing Form I-797 or 
Form I-94, whether such issuance relates to an initial request for 
nonimmigrant status, a change of nonimmigrant status, or an extension 
of such status. Under existing regulations, DHS does not consider the 
10-day grace periods to be automatically provided; rather, they are 
provided through an exercise of discretion on a case-by-case basis. 
USCIS is revising Form I-797 to facilitate consistent application of 
the discretionary 10-day grace periods and will continue to explore 
ways of notifying petitioners and beneficiaries when grace periods are 
provided. Specifically, DHS is revising 8 CFR 214.1(l)(1) to clarify 
that 10-day grace periods may be authorized as a matter of discretion, 
on a case-by-case basis, to nonimmigrants seeking changes of status or 
extensions of stay. See revised 8 CFR 214.1(l)(1). DHS further notes 
that if such individuals travel abroad and seek admission at a port of 
entry upon return, they may show the Form I-797 to a CBP officer who 
has the discretion to grant 10-day grace periods to eligible H-1B, E-1, 
E-2, E-3, L-1 and TN nonimmigrant workers. See INA 214(a)(1), 8 U.S.C. 
1184(a)(1); final 8 CFR 214.2(l)(1).
    Comment. A few commenters requested that USCIS revise the proposed 
rule at 8 CFR 214.1(l)(1), which states that eligible nonimmigrants 
``may be admitted . . . for the validity period of the petition . . . 
plus an additional period of up to 10 days.'' Because of the use of the 
word ``may,'' commenters believed the proposed provision was more 
limiting than the existing regulatory language at 8 CFR 
214.2(h)(13)(i)(A), which states that an H beneficiary ``shall be 
admitted . . . for the validity period of the petition, plus a period 
of up to 10 days.'' The commenters requested that DHS harmonize these 
provisions and clarify whether, under the final rule, H-1B 
nonimmigrants would be eligible for a discretionary (``may'') grace 
period of up to 10 days, whereas other H nonimmigrant classifications 
would be eligible for a mandatory (``shall'') grace period of up to 10 
days.
    Response. DHS declines to revise the language in 8 CFR 214.1(l)(1) 
in response to commenters' suggestions. DHS chose to use the word 
``may,'' as opposed to the word ``shall,'' in accordance with Federal 
regulatory drafting guidelines, to clarify that USCIS and CBP have the 
discretionary authority to limit periods of stay for all nonimmigrant 
classifications, including H nonimmigrants, consistent with current 
practice. Use of ``may'' rather than ``shall'' is also consistent with 
the regulatory provision allowing 10-day grace periods for O and P 
nonimmigrants. See 8 CFR 214.2(o)(10) and (p)(12). DHS maintains broad 
discretion when admitting individuals in nonimmigrant classifications, 
including when determining whether to grant grace periods to such 
individuals. By statute, DHS has the authority and responsibility to 
decide which foreign nationals enter the country and under what terms 
and conditions.\57\ See INA 214(a)(1), 8 U.S.C. 1184(a)(1) (providing 
that ``the admission to the United States of any alien as a 
nonimmigrant shall be for such time and under such conditions as the 
[Secretary] may by regulations prescribe''); INA 215(a)(1), 8 U.S.C. 
1185(a)(1) (authority to establish reasonable regulations governing 
aliens' entry or admission to and departure from the United 
States).\58\ DHS has drafted the grace period provision to clarify that 
it maintains discretion to admit an individual with a full 10-day grace 
period, some part of that period, or no grace period at all, and to 
assure consistent administration of the grace period provision.
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    \57\ Id.
    \58\ The President assigned to the Secretary of Homeland 
Security (acting with the concurrence of the Secretary of State) the 
functions under INA 215(a) with respect to noncitizens. Exec. Order 
No. 13323, 69 FR 241 (Dec. 30, 2003).
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    Additionally, in response to public comment, DHS is removing from 
the 10-day grace period provision in 8 CFR 214.1(l)(1) the clause that 
reads, ``to prepare for departure from the United States or to seek an 
extension or change of status based on a subsequent offer of 
employment.'' DHS is removing this clause to avoid an unintended 
limitation on the use of such grace periods and to maintain consistency 
with grace periods already enjoyed by H, O and P nonimmigrants. While 
DHS maintains that the 10-day grace period commencing when the relevant 
validity period expires is typically used by individuals to prepare for 
departure from the United States or to extend or change status, DHS 
determined upon further examination that the clause is unnecessarily 
limiting and does not fully comport with how the existing 10-day grace 
period may be used by H, O and P nonimmigrants. Such grace periods are 
also used for other permissible non-employment activities such as 
changing one's status to that of a dependent of a nonimmigrant spouse 
or vacationing prior to departure. DHS clarifies that, under this final 
rule, nonimmigrants in E-1, E-2, E-3, L-1, or TN status may engage in 
the same types of activities during the 10-day grace period that H, O, 
and P nonimmigrants currently engage in under the existing 10-day grace 
period.
    Comment. One commenter requested that DHS add a regulatory 
provision that would deem nonimmigrants in a 10-day grace period as 
being in a period of stay authorized by the Secretary.
    Response. Under 8 CFR 214.1(l)(1), the 10-day grace period is 
considered to be a period of nonimmigrant stay. Consistent with 
existing policy guidance, this is a period of stay authorized by the 
Secretary. Therefore, DHS does not believe additional revision to the 
regulatory text is necessary.\59\
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    \59\ For further guidance on periods of authorized stay, please 
see Neufeld May 2009 Memo (describing various ``periods of 
authorized stay''), available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF.
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    Comment. One commenter suggested that USCIS allow eligible 
nonimmigrant workers who have experienced a cessation of employment and 
were unable to find work during the 60-day grace period, to use the 
additional 10-day grace period so that they can prepare to depart the 
United States.
    Response. DHS declines to adopt the commenter's suggestion to allow 
eligible nonimmigrant workers the ability to add a 10-day grace period 
to the end of any 60-day grace period. DHS intends the 60-day grace 
period in 8 CFR 214.1(l)(2) to afford eligible high-skilled workers 
sufficient time following a cessation of employment to pursue other 
employment opportunities, seek a change or extension of status, or make 
the preparations necessary to depart the country. As the 10-day grace 
period at the end of a period of nonimmigrant validity is intended to 
serve the same purposes, providing both would be unnecessary and 
duplicative. DHS notes, however, that in limited instances it may be 
possible for a nonimmigrant worker to qualify for both grace periods. 
Use of both grace periods may occur, for instance, when a nonimmigrant 
worker, upon his or her last admission, was provided with a grace 
period of up to 10 days at the expiration of the validity period, and 
then experiences a cessation of employment in the last 60 days of the 
validity period. In these limited cases, DHS may consider the 
nonimmigrant to have maintained his or her status for up to 60 days 
immediately preceding the expiration of the validity period, and the 
nonimmigrant may also use the 10-day grace period after the validity 
period ends.
iv. Length of the 60-Day Grace Period
    Comment. Numerous commenters expressed support for the proposal

[[Page 82438]]

establishing a 60-day grace period for certain nonimmigrant 
classifications, including support for 60 days as sufficient time to 
find a new job. However, a significant number of other commenters 
believed that the 60-day grace period did not provide sufficient time 
for such purposes. These commenters suggested the grace period be 
lengthened to 90 or 120 days. One commenter suggested that USCIS extend 
the 60-day grace period to 90 days if a new petitioning employer 
submits evidence to USCIS indicating that it provided a written job 
offer to the nonimmigrant employee. Other commenters suggested giving 
USCIS the authority to extend the grace periods on a case-by-case 
basis. Commenters cited the difficulties of finding new jobs in the 
current economy, relocation and state-specific professional licensing 
requirements, personal responsibilities that complicate decision making 
when conducting job searches, and the fact that employer recruitment 
often takes 8-12 weeks.
    Response. DHS appreciates the many comments suggesting alternate 
periods of time for the grace period, and the reasons offered in 
support of a longer grace period. However, DHS will retain the 60-day 
grace period, rather than provide additional time, to encourage 
affected high-skilled workers to pursue other options in the United 
States in an expedient manner. Adding a grace period of up to 60 
consecutive days upon cessation of employment allows the affected high-
skilled workers sufficient time to respond to sudden or unexpected 
changes related to their employment. DHS believes that such time may be 
used to seek new employment, seek a change of status to a different 
nonimmigrant classification, including B-1/B-2 classification, or make 
preparations for departure from the United States.
v. Frequency of the 60-Day Grace Period
    Comment. Some commenters stated that 60-day grace periods should be 
available multiple times during any authorized validity period, rather 
than ``one time'' as described in the NPRM. The majority of these 
commenters stated that 60-day grace periods should be made available to 
foreign workers at least once per year. Other commenters suggested 
making 60-day grace periods available once every 3 years, once per visa 
extension or change of status, or each time a foreign worker loses his 
or her job. Commenters stated that lengthy delays in obtaining lawful 
permanent residence can leave foreign workers waiting for adjustment of 
status for 10 years or more, and it is likely that they could lose 
their jobs more than once during this time.
    Many commenters stated that the term ``one-time'' in the proposed 
regulatory text was unclear, and they did not understand whether the 
rule allowed for one grace period per lifetime, per employer, per 
petition validity period, or per total period of stay in any given 
status. Some commenters proposed alternative approaches to measuring 
the one-time 60-day grace period, including allowing the 60-day grace 
period to be divisible so that the unused portion of a 60-day grace 
period could be used toward a subsequent cessation of employment within 
the same period of valid nonimmigrant status, or carried forward into a 
new validity period and aggregated with a subsequent 60-day grace 
period.
    Response. Given the number and diversity of comments received, DHS 
recognizes that the proposal did not clearly convey the intended 
operation of the 60-day grace period. Accordingly, in the final rule, 
DHS clarifies that, while the grace period may only be used by an 
individual once during any single authorized validity period, it may 
apply to each authorized validity period the individual receives. DHS 
also clarifies that the grace period can last up to 60 consecutive days 
or until the existing validity period ends, whichever is shorter. As 
modified, the final rule provides that while the nonimmigrant worker 
may only receive one grace period in an authorized validity period, he 
or she would be eligible for a new grace period of up to 60 days in 
connection with any subsequently authorized validity period. Any days 
available in such a grace period must be used consecutively, and unused 
days may not be used later in the same authorized validity period or 
carried over into a subsequent validity period. DHS believes that 
limiting the grace period to up to 60 days once during each authorized 
nonimmigrant validity period, and not allowing for aggregation or 
carryover of time, is most consistent with the intent of the grace 
period: to provide a single limited, but reasonable, period of time 
during which DHS may, when adjudicating an extension of stay or change 
of status petition, consider the nonimmigrant to have maintained valid 
nonimmigrant status following cessation of employment.\60\ While DHS 
appreciates the alternative approaches suggested by commenters, DHS 
believes that most of the underlying concerns are addressed by these 
clarifications made to this provision in the final rule.
---------------------------------------------------------------------------

    \60\ The 60-day grace period provision does not limit the scope 
of employer violations under section 212(n)(2)(c)(vii) of the Act, 
or the remedies available to correct such violations. See 8 U.S.C. 
1182(n)(2)(c)(vii)(concerning employer failure to pay wages during 
``nonproductive time'', commonly referred to as ``benching'').
---------------------------------------------------------------------------

vi. Classifications Eligible for the 60-Day Grace Period
    Comment. Several commenters suggested that DHS broaden the classes 
eligible for the 60-day grace period to include other nonimmigrant 
worker visa classifications, namely those working in A, H-3, G, I, O, 
P, or Q nonimmigrant status.
    Response. In response to these comments, DHS is adding O-1 
nonimmigrants to the classes of individuals eligible for the 60-day 
grace period. DHS has decided not to add the other nonimmigrant 
classifications requested by commenters because the fundamental 
purposes of those classifications do not align with the fundamental 
purpose of this rule. As discussed previously, this rulemaking is 
intended to benefit high-skilled workers and their employers by 
streamlining the processes for employer sponsorship of such workers for 
immigrant visas, increasing job portability and otherwise providing 
stability and flexibility for such workers, and providing additional 
transparency and consistency in the application of DHS policies and 
practices related to high-skilled worker programs. The additional 
nonimmigrant classifications proposed by commenters, however, are not 
focused on facilitating the employment of high-skilled workers by 
employers in the United States. Authorizing grace periods for these 
nonimmigrant classifications would thus not align with the purpose of 
this rule.
    Comment. One commenter suggested broadening the classes of 
individuals who might benefit from a 60-day grace period to include 
those nonimmigrant workers whose petitions to extend stay or change 
employers within an eligible visa classification are denied. This 
commenter opined that the inclusion of petition denials is consistent 
with the grace period's purpose of facilitating stability and job 
flexibility.
    Response. DHS declines to adopt the commenter's suggestion to 
provide grace periods after an approved validity period in cases in 
which petitions requesting an extension of stay or a change of 
employers are denied. The 60-day grace period is intended to apply to 
individuals whose employment ends prior to the end of their approved 
validity period. It is not intended to apply after that period based on 
a denial of a benefit request. DHS notes that individuals may be 
eligible for the 60-day grace period if they port to new H-

[[Page 82439]]

1B employers under INA 214(n) and the petition for new employment 
(i.e., the H-1B petition used to port) is denied prior to the 
expiration of the validity period of the previously approved petition 
on which the individual's status had been based. However, the 60-day 
grace period would not apply where a petition for new employment under 
section 214(n), or an extension of stay petition with the same 
employer, is denied after expiration of the validity period.
vii. Clarifying the Meaning of ``Up To'' in the 60-Day Grace Period
    Comment. A few commenters asked DHS to clarify how it would 
exercise its discretion to eliminate or shorten the 60-day period on a 
case-by-case basis. These commenters wanted to know the circumstances 
in which DHS might deem it appropriate to eliminate or shorten the 
grace period, and the manner in which the beneficiary would be 
notified.
    Response. At the time a petitioner files a nonimmigrant visa 
petition requesting an extension of stay or change of status, DHS will 
determine whether facts and circumstances may warrant shortening or 
refusing the 60-day period on a case-by-case basis. If DHS determines 
credible evidence supports authorizing the grace period, DHS may 
consider the individual to have maintained valid nonimmigrant status 
for up to 60 days following cessation of employment and grant a 
discretionary extension of stay or a change of status to another 
nonimmigrant classification. See 8 CFR 214.1(c)(4) and 248.1(b). Such 
adjudications require individualized assessments that consider the 
totality of the circumstances surrounding the cessation of employment 
and the beneficiary's activities after such cessation. While many cases 
might result in grants of 60-day grace periods, some cases may present 
factors that do not support the favorable exercise of this discretion. 
Circumstances that may lead DHS to make a discretionary determination 
to shorten or entirely refuse the 60-day grace period may include 
violations of status, unauthorized employment during the grace period, 
fraud or national security concerns, or criminal convictions, among 
other reasons.
viii. Employment Authorization During the Grace Periods
    Comment. Several commenters requested that employment authorization 
be granted during grace periods so that foreign workers can begin their 
new jobs while awaiting approval of a petition filed by a new employer.
    Response. DHS declines to provide employment authorization during 
the grace periods. Consistent with the intent of the grace periods as 
proposed, as well as similar grace periods already provided in DHS 
regulations, the final rule does not allow eligible nonimmigrants to be 
employed during either the 10- or 60-day grace periods unless otherwise 
authorized under 8 CFR 274a.12. DHS authorizes these grace periods 
simply to facilitate the ability of qualified nonimmigrants to 
transition to new employment in the United States, seek a change of 
status, or prepare to depart the United States. Consistent with 
longstanding policy, DHS declines to authorize individuals to work 
during these grace periods.
    Comment. Several commenters requested that USCIS allow nonimmigrant 
workers to pursue their own businesses during grace periods.
    Response. DHS declines to allow nonimmigrant workers to use the 
grace periods provided by this rule to work to start their own 
businesses. The grace periods allow qualified nonimmigrants to 
transition to new employment while maintaining nonimmigrant status, or 
seek a change of status, or prepare to depart the United States. These 
grace periods are not intended to provide a separate basis for 
employment authorization. Therefore, the final rule at 8 CFR 
214.1(l)(3) provides that an individual may not work during the grace 
period unless otherwise authorized under 8 CFR 274a.12.

H. Job Portability for H-1B Nonimmigrant Workers

1. Description of Final Rule and Changes from NPRM
    The final rule at 8 CFR 214.2(h)(2)(i)(H) codifies longstanding DHS 
policies implementing H-1B job portability under INA 214(n). This 
section of the final rule 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 nonfrivolous H-1B 
petition (``H-1B portability petition''). See INA section 214(n), 8 
U.S.C. 1184(n); 8 CFR 214.2(h)(2)(i)(H). Under section 214(n), the H-1B 
nonimmigrant worker must have been lawfully admitted into the United 
States, must not have worked without authorization after such lawful 
admission, and must be in a period of stay authorized by the 
Secretary.\61\ See 8 CFR 214.2(h)(2)(i)(H)(1). Although DHS is not 
making any changes to the H-1B portability provisions proposed in the 
NPRM, the Department confirms that to be eligible for H-1B portability 
the new H-1B petition must have been filed while the foreign worker is 
in H-1B status or is in a period of authorized stay based on a timely 
filed H-1B extension petition. Employment authorization under the 
pending H-1B portability petition continues until adjudication. See 8 
CFR 214.2(h)(2)(i)(H)(2).
---------------------------------------------------------------------------

    \61\ Neufeld May 2009 Memo (describing various ``periods of 
authorized stay'').
---------------------------------------------------------------------------

    The final rule allows H-1B employers to file successive H-1B 
portability petitions (often referred to as ``bridge petitions'') on 
behalf of H-1B nonimmigrant workers. 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. Eligibility for employment pursuant to a 
second or subsequent H-1B portability petition, however, would 
effectively depend on (1) whether any prior H-1B portability petitions 
have been approved or remain pending, and (2) whether the individual's 
Form I-94, issued upon admission or extended pursuant to an approved H-
1B petition, has expired. If the request for an extension of stay was 
denied in a preceding H-1B portability petition and the individual's 
Form I-94 authorizing admission in or extension of H-1B status has 
expired, a request for an extension of stay in any successive H-1B 
portability petition(s) must also be denied. See 8 CFR 
214.2(h)(2)(i)(H)(3). Successive H-1B portability petitions thus may 
provide employment authorization as long as each such H-1B portability 
petition separately meets the requirements for H-1B classification and 
for an extension of stay.
2. Public Comments and Responses
i. H-1B Status Requirement
    Comment. Several commenters objected to limiting H-1B portability 
to workers who are in H-1B nonimmigrant status or in an authorized 
period of stay based on a timely filed H-1B extension petition. These 
commenters requested that the regulation permit any worker who was 
previously issued an H-1B visa or otherwise provided H-1B nonimmigrant 
status to port to H-1B employment through a request for a change of 
status from another nonimmigrant category. Commenters stated that the 
current limitation was contrary to the plain language of the INA and 
congressional intent, outside

[[Page 82440]]

the Department's authority, and inconsistent with DHS's stated goal of 
maximizing job flexibility for skilled foreign workers. One commenter 
stated that such a policy would impose further restrictions and fees on 
employers in the medical field, deterring them from recruiting 
physicians to work in medically underserved areas.
    Response. DHS disagrees with these commenters. USCIS has long 
interpreted INA 214(n) as allowing only those nonimmigrants who are 
currently in H-1B status, or in a period of authorized stay as a result 
of a timely filed H-1B extension petition, to begin employment upon the 
filing by prospective employers of new H-1B portability petitions on 
the nonimmigrants' behalf. H-1B portability does not apply to a 
nonimmigrant who is in a valid status other than H-1B.\62\ This 
interpretation is consistent with the text of INA 214(n)(1), which 
refers specifically to foreign workers admitted in or otherwise 
provided H-1B status. See INA 214(n)(1), 8 U.S.C. 1184(n)(1). 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 at INA 214(n), titled 
``increased portability of H-1B status,'' was intended to 
``respond[[thinsp]] 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. The Senate Report also noted that: ``[t]he bill allows an H-1B visa 
holder to change employers at the time a new employer files the initial 
paperwork, rather than requiring the visa holder to wait for the new H-
1B application to be approved.'' Id. at 10, 22. For these reasons, DHS 
believes this limitation is consistent with Congress's intent.
---------------------------------------------------------------------------

    \62\ See Aytes 2005 Memo, at 7.
---------------------------------------------------------------------------

    Additionally, DHS does not agree that these clarifications would 
impose new restrictions on employers. As noted above, USCIS has long 
interpreted INA 214(n) as requiring an individual to maintain lawful H-
1B status, or be in an authorized period of stay based on a timely 
filed extension of H-1B status, in order to ``port'' to a new employer. 
As this is longstanding policy and practice, DHS disagrees that the 
codification of such provision would present a new deterrent to 
employers recruiting certain H-1B nonimmigrants, such as physicians.
    Comment. One commenter expressed qualified support for the proposed 
H-1B portability provision at 8 CFR 214.2(h)(2)(i)(H). The commenter 
expressed appreciation for the provision under the assumption that it 
rendered the so-called ``240-day rule'' at 8 CFR 274a.12(b)(20), which 
applies to timely filed H-1B extensions with the same employer, moot. 
This assumption was based on the fact that the proposed regulation 
provided H-1B portability to the beneficiary of the H-1B extension 
petition until such petition was adjudicated by USCIS. The commenter 
stated, however, that there was apparent discrepancy between the text 
of the proposed H-1B portability provision and the regulatory text at 8 
CFR 274a.12(b)(20), and the commenter requested that DHS address such 
discrepancy.
    Response. DHS appreciates the commenter's observations regarding 
the perceived implications of the portability provision at 8 CFR 
214.2(h)(2)(i)(H) on the 240-day rule under 8 CFR 274a.12(b)(20). DHS 
notes that there is a difference in how these rules are applied, 
however, and that the portability provision does not in fact render the 
240-day rule moot for H-1B nonimmigrants. Under the H-1B portability 
provision, if an H-1B employer is filing a petition for a change in 
employment (or an amended petition) for the same employee, then the H-
1B nonimmigrant is authorized to work for that same employer in the new 
employment until the petition is adjudicated. See 8 CFR 
214.2(h)(2)(i)(H)(2). However, if an H-1B employer files a timely 
petition for an employee seeking continuation of the same employment 
with the same employer without change, DHS does not consider that to be 
new employment, and thus is ineligible for H-1B portability. The 
statutory provision at INA 214(n)(1) plainly refers to new employment 
in describing what type of employment is authorized, and therefore 
limits the applicability of that provision. Thus, while a petition 
seeking extension of the same employment for the same employer is 
pending, employment authorization is not provided by 8 CFR 
214.2(h)(2)(i)(H) and 8 CFR 274a.12(b)(9), but would be provided by 8 
CFR 274a.12(b)(20), which authorizes employment for an additional 240 
days beginning on the date of the expiration of the previously 
authorized period of stay.
    Thus, an eligible nonimmigrant may be granted employment 
authorization until the adjudication of the H-1B petition if he or she 
chooses to engage in concurrent or new employment (including new 
employment with the same employer) or may be granted employment 
authorization for a period not to exceed 240 days if he or she chooses 
to continue the current employment with the same employer. For these 
reasons, DHS disagrees with the commenter's assessment that this 
provision renders 8 CFR 274a.12(b)(20) moot.
ii. International Travel and Successive Portability Petitions (``Bridge 
Petitions'')
    Comment. A few commenters requested that DHS further clarify the 
effect of travel outside of the United States on the status of 
beneficiaries of pending bridge petitions. See 8 CFR 
214.2(h)(2)(i)(H)(3). Many of these commenters expressed the view that 
DHS prohibited beneficiaries with pending successive portability 
petitions from traveling outside the United States. Other commenters 
objected to the potential consequences that beneficiaries of pending 
bridge petitions face if they travel internationally, including having 
DHS consider their petitions abandoned. One commenter asked DHS to 
extend portability to H-1B nonimmigrants who are employed, but are 
travelling for business or vacation purposes, asserting that true 
portability should allow job changes for H-1B nonimmigrants who are 
employed by their sponsors, whether the nonimmigrants are physically in 
the United States or not.
    Response. DHS is aware that H-1B nonimmigrants (and their 
employers) have expressed concern about their eligibility for admission 
to the United States during the pendency of a new employer's petition 
on their behalf. DHS has long acknowledged that otherwise admissible H-
1B nonimmigrants may travel and be admitted in H-1B status while H-1B 
portability petitions on their behalf are pending. However, individuals 
requesting admission as H-1B nonimmigrants must prove at the port of 
entry that they are eligible for admission in that status.\63\
---------------------------------------------------------------------------

    \63\ See USCIS Memorandum from Michael A. Pearson, ``Initial 
Guidance for Processing H-1B Petitions as Affected by the `American 
Competitiveness in the Twenty-First Century Act' (Public Law 106-
313) and Related Legislation (Public Law 106-311) and (Public Law 
106-396)'' (June 19. 2001).
---------------------------------------------------------------------------

    Generally, if an individual's original H-1B petition has expired 
prior to the time that the beneficiary seeks admission to the United 
States, or if such petition is otherwise no longer valid, the 
beneficiary must present evidence that USCIS has approved a new H-1B 
petition to be admitted to the United States. If the original H-1B 
petition has not yet expired, however, the beneficiary of an H-1B 
portability petition who travels abroad may be admissible if, in 
addition to presenting

[[Page 82441]]

a valid passport and visa (unless visa-exempt), he or she provides a 
copy of the previously issued Form I-94 or Form I-797 approval notice 
for the original H-1B petition (evidencing the petition's validity 
dates), and a Form I-797 receipt notice demonstrating that the new H-1B 
petition requesting an amendment or extension of stay was timely filed 
on the individual's behalf. The inspecting officer at the port of entry 
will make the ultimate determination as to whether the applicant is 
admissible to the United States as an H-1B nonimmigrant.
    Comment. One commenter opposed conditioning H-1B portability on the 
approval of the H-1B portability petition. The commenter noted that if 
an employer delays the filing, and chooses not to pay for premium 
processing, the employee will not be able to port for (potentially) 
several months. The commenter asked DHS to instead require that 
portability be conditioned on the portability petition being non-
frivolous. Another commenter requested that where the H-1B 
nonimmigrant's Form I-94 remains valid and unexpired, the regulation 
should confirm that the denial or withdrawal of a portability petition 
in the ``chain'' will not result in the denial of successive 
portability petitions. The commenter advocated that in such situations, 
pending petitions should remain viable unless denied.
    Response. DHS disagrees that an employee who is the beneficiary of 
a pending portability petition, whether or not premium processing has 
been requested, would be unable to change jobs for several months. As 
noted above, as long as a worker is in H-1B nonimmigrant status, or is 
in a period of authorized stay as a result of a timely filed H-1B 
petition, that worker may begin new employment upon the filing by the 
prospective employer of an H-1B portability petition on the foreign 
worker's behalf. There is no requirement that the portability petition 
be approved at the time the worker begins the new employment.
    DHS notes that an H-1B beneficiary who has a valid and unexpired 
Form I-94 remains in a period of authorized stay. As long as the 
petitioner can demonstrate that the beneficiary remained in valid H-1B 
nonimmigrant status when a successive portability petition was filed, 
the timely filed petition and associated extension of stay request 
should not be denied simply because of a denial or withdrawal of the 
preceding portability petition. DHS does not consider an H-1B 
portability petition that is filed before the validity period expires 
to constitute a ``bridge petition''; rather, a bridge petition is one 
filed after expiration of the Form I-94, but during the time in which 
the individual was in a period of authorized stay based on a preceding 
timely filed extension petition.
    DHS believes that this rule achieves the ameliorative purpose of 
section 214(n) to enhance the job flexibility of H-1B nonimmigrant 
workers and minimize the potential exploitation of such workers by 
employers. DHS thus adopts the proposed provision without change.
iii. Portability to New Employment Subject to the Cap
    Comment. One commenter asked DHS to clarify H-1B portability in the 
context of a change from cap-exempt to cap-subject employment. The 
commenter asked DHS to explicitly allow cap-subject employment to begin 
prior to the beginning of the fiscal year (October 1), noting that H-1B 
portability provides ``employment authorization'' but not status.
    Response. An H-1B nonimmigrant worker's cap-subject employment may 
not begin prior to October 1 of the fiscal year for which his or her 
cap-subject petition is approved. See INA section 214(g)(1), 8 U.S.C. 
1184(g)(1). Therefore, in the circumstances described by the commenter, 
the H-1B nonimmigrant worker would not be eligible to begin working 
upon the timely filing of a nonfrivolous petition under 8 CFR 
214.2(h)(2)(i)(H).

I. H-1B Licensing Requirements

1. Description of Final Rule and Changes From NPRM
    The final rule amends existing DHS regulations to incorporate the 
Department's current policy \64\ for determining when H-1B status may 
be granted notwithstanding the H-1B beneficiary's inability to obtain a 
required professional license. In response to public comment, the final 
rule also expands upon the bases for granting H-1B status in such 
cases. See final 8 CFR 214.2(h)(4)(v)(C).
---------------------------------------------------------------------------

    \64\ See 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'' (Mar. 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'').
---------------------------------------------------------------------------

    First, in this final rule, DHS is making clarifications to the 
proposal in the NPRM covering unlicensed beneficiaries who will work, 
under the supervision of licensed senior or supervisory personnel, in 
an occupation that typically requires licensure. See proposed 8 CFR 
214.2(h)(4)(v)(C)(1). The proposed rule required petitioners to provide 
evidence concerning the duties to be performed by the prospective 
beneficiary, as well as the identity, physical location, and 
credentials of the individual(s) who will supervise the foreign worker. 
In the final rule, DHS is retaining these requirements with an 
amendment clarifying that petitioners must also submit evidence of 
compliance with applicable state requirements. DHS is adding this 
requirement, consistent with existing policy and practice, to clarify 
that the performance of such work by an unlicensed beneficiary, in an 
occupation that typically requires a license, would only be permissible 
if it is otherwise consistent with applicable state licensure 
requirements and exceptions to such requirements. In such cases, if the 
evidence demonstrates that the unlicensed H-1B nonimmigrant may fully 
perform the duties of the occupation under the supervision of licensed 
senior or supervisory personnel, H-1B classification may be granted. 
See final 8 CFR 214.2(h)(4)(v)(C)(1).
    Second, DHS is expanding the bases under which an individual may be 
granted H-1B nonimmigrant status despite the individual's inability to 
obtain a required license in the United States. The proposed rule 
expressly allowed for a temporary exception to the licensure 
requirement for individuals who were substantively qualified for 
licensure but who could not obtain such licensure due only to the need 
to have a Social Security number or employment authorization. In 
response to public comment, DHS is clarifying that a temporary 
exception to the licensure requirement may also be available in cases 
in which the inability to obtain the license is due to a ``similar 
technical requirement.'' Final 8 CFR 214.2(h)(4)(v)(C)(2)(i). DHS is 
expanding this provision in recognition that other technical obstacles 
may exist that would similarly prevent beneficiaries from obtaining 
licenses required for employment in certain occupations. Under the 
final rule, petitioners filing H-1B petitions on behalf of such 
beneficiaries are required to submit evidence from the relevant 
licensing authority indicating that the only obstacle to the 
beneficiary's licensure is the lack of a Social Security number, the 
lack of employment authorization, or the inability to meet a similar 
technical

[[Page 82442]]

requirement. See final 8 CFR 214.2(h)(4)(v)(C)(2)(ii).
    Petitions for such unlicensed H-1B beneficiaries may be approved 
for up to 1 year. See final 8 CFR 214.2(h)(4)(v)(C)(2). Thereafter, an 
H-1B petition filed on such a beneficiary's behalf may not be approved 
unless the required license has been obtained, the beneficiary is 
employed in a different position that requires another type of license, 
or the beneficiary is employed in the same occupation but in a 
different location that does not require a license. See final 8 CFR 
214.2(h)(4)(v)(C)(3).
2. Public Comments and Responses
i. Duties Without Licensure--Expand Circumstances
    Comment. Most of the commenters who addressed the proposed changes 
supported DHS's proposals and thanked DHS for clarifying exceptions to 
the general requirement making approval of H-1B petitions contingent on 
licensure when licensure is required for the relevant occupation. Two 
commenters asked DHS to include additional bases for excusing the 
general licensure requirement, such as by adding the phrase ``or other 
requirement'' to 8 CFR 214.2(h)(4)(v)(C)(2)(ii).
    Response. DHS regulations provide that if an occupation, including 
a health care occupation, requires a state or local license to fully 
perform the duties of the occupation, the H-1B beneficiary must have 
the license prior to the approval of the petition. See 8 CFR 
214.2(h)(4)(v). However, some states will not issue a foreign national 
a state license without evidence of an approved H-1B petition or other 
employment authorization. DHS has long acknowledged these beneficiaries 
sometimes face situations where the beneficiary is qualified for 
licensure but may not obtain the licensure because of a technical 
requirement, and the Department responded over 8 years ago by allowing 
for the temporary approval of H-1B petitions in such cases, provided 
all other requirements are met.\65\ By incorporating this policy into 
the final regulations, DHS intends to provide clear guidance to help 
certain beneficiaries who cannot obtain the necessary license because 
they are unable to satisfy a technical prerequisite, including because 
they do not yet possess a Social Security number or are not yet legally 
authorized to work in the United States.
---------------------------------------------------------------------------

    \65\ See Neufeld Memo March 2008.
---------------------------------------------------------------------------

    In addition, DHS agrees with commenters and recognizes that there 
may be other analogous technical requirements not specifically 
identified in the proposed rule that similarly prevent a beneficiary 
from obtaining a license. DHS is therefore providing additional 
flexibility in the final rule by allowing beneficiaries to demonstrate 
that a ``similar technical requirement'' bars the issuance of a license 
to an individual who is not yet in H-1B status. In such situations, the 
petitioner must still demonstrate that the beneficiary is otherwise 
qualified to receive the state or local license, meaning that all 
educational, training, experience, and other substantive requirements 
have been met. The petitioner must also still demonstrate that the 
beneficiary has applied for such license in accordance with state or 
local rules and procedures, unless such rules and procedures prohibit 
the beneficiary from applying for the license without first meeting the 
technical requirement.
    Comment. One commenter requested the same accommodation (i.e., a 1-
year approval) for physicians who complete their graduate medical 
education in H-1B nonimmigrant status using a limited or restricted 
license but who require an unrestricted license to begin post-training 
work in H-1B status. This commenter noted that these physicians 
sometimes face circumstances in which they have not yet completed their 
post-graduate training (i.e., medical residency), which is a 
prerequisite to obtaining an unrestricted state license in many states, 
but must have an H-1B petition filed on their behalf to avoid a lapse 
in status. This commenter requested that USCIS consider the completion 
of the requisite post-graduate training as another technical impediment 
to obtaining a license.
    Response. DHS declines to adopt the commenter's suggestion. As with 
other occupations, DHS will require physicians who complete their 
graduate medical education in H-1B status using a restricted license to 
demonstrate that the only obstacle to the issuance of an unrestricted 
license is the lack of a Social Security number, a lack of employment 
authorization, or the inability to meet a similar technical requirement 
that precludes the issuance of the license. DHS does not view the 
absence of completed post-graduate training as analogous to the purely 
technical prerequisites discussed above. The Department did not propose 
to excuse substantive prerequisites for obtaining licensure and 
disagrees that exceptions should extend to such prerequisites.
ii. Unlicensed Employment Under Supervision
    Comment. Several commenters were concerned about petitioners being 
required to provide evidence ``as to the identity, physical location, 
and credentials of the individual(s) who will supervise the alien.'' 
See 8 CFR 214.2(h)(4)(v)(C)(1). One commenter indicated that the quoted 
text could be interpreted in different ways. According to the 
commenter, although the text may have been intended to require 
petitioners to provide broad details about the supervisor(s) who will 
oversee the work of the nonimmigrant worker, adjudicators may interpret 
this provision as requiring petitioners to provide the actual 
identities and qualifications of those supervisors. The commenter 
believed such an interpretation would pose a major logistical challenge 
for many petitioners. As an example, the commenter referred to medical 
residents who often rotate through numerous assignments and different 
supervisors, sometimes on a monthly basis, during their training. The 
commenter believed that in such cases it would be overly burdensome for 
petitioners to provide the actual identities of the supervisors, and 
the commenter urged DHS to eliminate this requirement. Some commenters 
recommended that DHS strike the provision requiring petitioners to 
provide specific information about supervisors and replace it with a 
provision requiring petitioners to proffer evidence from the 
appropriate licensing authority supporting the employment.
    Additionally, commenters were concerned that the proposed rule gave 
USCIS too much authority to ``second-guess'' established practices 
followed by state licensing authorities. One commenter was of the view 
that if the relevant state licensing authority deems the proposed 
supervision to be adequate, USCIS should not evaluate the level at 
which duties are performed or the degree of supervision received. 
Another commenter stated that refining the regulatory text would help 
to avoid denials of H-1B petitions filed for unlicensed workers whose 
supervision is deemed adequate by the state but determined to be 
inadequate by USCIS.
    Response. In this final rule, DHS is clarifying that, consistent 
with current policy, the petitioner is required to provide details 
about the supervisor(s) overseeing the work of the nonimmigrant worker, 
including physical location, credentials and identity of such 
supervisor(s). Petitioners are encouraged to fully document each case, 
as this helps DHS

[[Page 82443]]

ensure that while the beneficiary may as yet be unlicensed, he or she 
will be supervised by one or more individuals with the proper license. 
Finally, as the burden of proof is on the petitioner to establish 
eligibility for the benefit requested, the petitioner must also submit 
evidence that it is complying with state requirements. DHS is modifying 
the regulatory text at 8 CFR 214.2(h)(4)(v)(C)(1) to clarify the 
petitioner's burden of proof with respect to compliance with state 
requirements. As the final rule simply codifies current policy, DHS 
does not anticipate that petitioners would have to change the way they 
currently satisfy these requirements.\66\
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    \66\ See the Adjudicator's Field Manual at Chapter 31.3(d)(2).
---------------------------------------------------------------------------

iii. Duration of H-1B Petition Approval
    Comment. A few commenters suggested a longer duration of approval 
for H-1B petitions involving unlicensed H-1B beneficiaries, noting that 
limiting the duration of H-1B nonimmigrant status to 1 year seemed both 
``arbitrary'' and ``unnecessary.'' The commenters urged DHS to allow 
petitions to be approved for the full H-1B period requested--up to 3 
years--regardless of whether the occupational license is subject to 
renewal before the requested petition expiration date. Alternatively, 
another commenter suggested an option whereby USCIS would approve H-1B 
status for the period requested on the petition and then send a request 
for proof of licensure 1 year after approval (rather than require a new 
petition). According to the commenter, if proof is not provided at that 
point, the grant of H-1B status could be revoked. One commenter 
proposed that DHS extend the 1-year exception to any foreign 
beneficiary who presents a health care worker certificate \67\ at the 
time of the filing of the H-1B petition. The commenter noted that this 
proposal would relieve the need for DHS to parse through a myriad of 
state licensing prerequisites, while still guaranteeing that only 
qualified workers are granted H-1B status. The commenter noted that the 
proposal would provide additional certainty to petitioners and allow 
for more consistent DHS decision-making.
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    \67\ A foreign national seeking admission to perform labor as a 
health care worker, other than a physician, is only admissible to 
the United States if he or she presents a certification from a 
USCIS-approved credentialing organization verifying that the worker 
has met the minimum requirements for education, training, licensure, 
and English proficiency in his or her field. See INA section 
212(a)(5), 8 U.S.C. 1182(a)(5); 8 CFR 212.15.
---------------------------------------------------------------------------

    Response. USCIS has long used a 1-year period as the duration for 
approval for beneficiaries that cannot obtain licensure due to 
technical requirements. Petitioners wishing to extend H-1B status for 
such beneficiaries beyond one year are required to file new petitions 
with requests for extensions and evidence that the necessary licensure 
has in fact been obtained.\68\ While DHS recognizes that short approval 
periods impose a burden on employers, DHS must balance employer burden 
against the need to affirmatively confirm that the beneficiary 
ultimately received the requisite licensing. Extending the period of H-
1B petition validity beyond 1 year in cases in which the beneficiary 
does not have a license needlessly weakens DHS's oversight of 
beneficiaries' eligibility for H-1B status.
---------------------------------------------------------------------------

    \68\ The 1-year time period dates back to 2001, when the former 
INS issued guidance to adjudicators to approve H-1B petitions for 1-
year periods for teachers who could not obtain state licensure 
unless they obtained Social Security numbers, which in turn could 
not be obtained unless they were already authorized to work in the 
United States. See Cook Memo Nov. 2001. See also USCIS Memorandum 
from Barbara Q. Velarde, ``Requirements for H-1B Beneficiaries 
Seeking to Practice in a Health Care Occupation'' (May 20, 2009), 
available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/health_care_occupations_20may09.pdf.
---------------------------------------------------------------------------

    DHS also declines to implement the commenter's proposal to approve 
petitions for beneficiaries lacking necessary licensure for the period 
requested on the petition and then issue an RFE to request proof of 
licensure 1 year after approval. Such a proposal would be operationally 
and administratively burdensome, both because it would require USCIS to 
track petitions and because it would require USCIS to incur the costs 
of re-determining eligibility without collecting an appropriate fee. 
The proposal could add also uncertainty for petitioners and H-1B 
nonimmigrant workers while their petitions are under re-review. For 
these reasons, DHS retains in the final rule the current 1-year 
limitation on the duration of approval of H-1B petitions filed on 
behalf of unlicensed workers under 8 CFR 214.2(h)(4)(v)(C)(2).
    DHS also declines to adopt the commenter's request to provide an 
exception to the 1-year limit for a foreign beneficiary who submits a 
health care worker certificate with the H-1B petition. State laws 
govern licensure requirements for individuals to fully practice their 
profession, and DHS regulations accordingly require the petitioner to 
submit a copy of the beneficiary's license to establish that the 
beneficiary is fully qualified to practice in his or her specialty 
occupation. See 8 CFR 214.2(h)(4)(iii)(C)(3). The licensure exception 
only applies where the individual is fully qualified for the state 
license, but is unable to acquire the license due to a technical, non-
substantive reason. While a health care worker certification may help 
prove such qualification, such certificates, which are issued by 
private organizations, do not confer authorization to engage in the 
specialty occupation and are not sufficient evidence of a beneficiary's 
qualifications for the specialty occupation. Accordingly, such health 
care certificates are not acceptable substitutes for evidence 
establishing that the foreign national is licensed to practice his or 
her occupation. For these reasons, DHS declines to make changes to 
those requirements in the final rule.
iv. Unrestricted Extendable Licenses
    Comment. One commenter stated that the proposed rule did not 
reference the most recent USCIS guidance regarding unrestricted 
extendable licenses in health care occupations. The commenter cited a 
May 20, 2009 USCIS memorandum from Barbara Q. Velarde titled, 
``Requirements for H-1B Beneficiaries Seeking to Practice in a Health 
Care Occupation'' (``2009 Velarde Memorandum''), that states, in part, 
that H-1B approvals in such instances should be for the full duration 
of time requested on the petition (i.e., up to 3 years) notwithstanding 
the renewal date on the license, if the petition is otherwise 
approvable. The commenter asked that the applicability of the policy be 
expanded to include additional occupations beyond those in health care, 
and proposed that 8 CFR 214.2(h)(4)(v)(A) be amended accordingly.
    Response. DHS did not propose to codify or change USCIS policy 
addressing the approval of petitions for individuals in health care 
occupations who are issued unrestricted extendable licenses, as 
articulated in the 2009 Velarde Memorandum, and therefore declines to 
address this comment in this rulemaking. USCIS will continue to 
adjudicate these petitions consistent with the policy guidance 
articulated in the 2009 Velarde Memorandum, and the agency declines to 
make any changes to this policy or the memorandum at this time.

J. Employers Exempt From H-1B Numerical Limitations and Qualifying for 
Fee Exemptions

1. Description of the Final Rule and Changes From the NPRM
    In this final rule, DHS codifies its longstanding policy 
interpretations identifying which employers are exempt

[[Page 82444]]

from the H-1B numerical limitations (i.e., which employers are ``cap-
exempt'') and makes conforming changes to the provisions that establish 
which employers are exempt under ACWIA from paying certain H-1B fees. 
DHS also modifies those policies in response to public comment as they 
relate to (1) nonprofit entities related to or affiliated with 
institutions of higher education, and (2) governmental research 
organizations. DHS is making revisions to the H-1B cap- and fee-
exemption provisions where needed to reflect these modifications.
    In the final rule, DHS is improving upon and codifying current 
policy interpreting the statutory cap and fee exemptions for a 
nonprofit entity that is related to or affiliated with an institution 
of higher education. See INA 214(c)(9) and (g)(5), 8 U.S.C. 1184(c)(9) 
and (g)(5); see also final 8 CFR 214.2(h)(8)(ii)(F)(2)(iv) and 
(h)(19)(iii)(B). Under current policy, DHS allows nonprofit entities to 
qualify for the cap and fee exemptions if such nonprofit entities 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. In addition to proposing to retain this policy (see 
proposed 8 CFR 214.2(h)(8)(ii)(F)(2); 8 CFR 214.2(h)(19)(iii)(B)(4)), 
the NPRM proposed to also allow nonprofit entities to qualify for the 
cap and fee exemptions on the basis of having a written affiliation 
agreement with an institution of higher education. As proposed, the 
regulatory text would have allowed such an agreement to serve as the 
basis for the cap and fee exemptions if the agreement established an 
active working relationship between the nonprofit entity and the 
institution of higher education for the purposes of research or 
education and so long as one of the nonprofit entity's primary purposes 
was to directly contribute to the research or education mission of the 
institution of higher education.
    In the final rule, DHS is replacing the phrase ``primary purpose'' 
with ``fundamental activity'' to avoid potential confusion. This change 
makes it clearer that nonprofit entities may qualify for the cap and 
fee exemptions even if they are engaged in more than one fundamental 
activity, any one of which may directly contribute to the research or 
education mission of a qualifying college or university. Further, the 
term ``related or affiliated nonprofit entity'' is defined consistently 
for both cap-exemption and ACWIA fee-exemption purposes. This change 
results in a standard that better reflects current operational 
realities for institutions of higher education and how they interact 
with, and sometimes rely on, nonprofit entities.
    Second, the final rule revises the definition of ``governmental 
research organization,'' in response to public comment, so that the 
phrase includes state and local government research entities in 
addition to federal government research entities. See 8 CFR 
214.2(h)(8)(ii)(F)(3) and (h)(19)(iii)(C). Both the ACWIA fee and H-1B 
cap statutes provide exemptions for ``governmental research 
organizations,'' without specifying whether such organizations must be 
federal government entities. See INA 214(c)(9)(A) and (g)(5)(B), 8 
U.S.C. 1184(c)(9)(A) and (g)(5)(B). DHS believes it is reasonable to 
interpret this language to include state and local government entities 
and that doing so is consistent with the goals of this rulemaking to 
improve access to and retention of high-skilled workers in the United 
States. DHS further believes that this interpretation will promote and 
encourage the significant and important research and development 
endeavors happening through state and local governments.
    Third, the final rule codifies other existing policies and 
practices in this area. Specifically, the final rule codifies: (1) The 
requirements for exempting H-1B nonimmigrant workers from the cap in 
cases in which they are not directly employed by a cap-exempt employer 
(final 8 CFR 214.2(h)(8)(ii)(F)(4)); (2) the application of cap 
limitations to H-1B nonimmigrant workers in cases in which cap-exempt 
employment ceases (final 8 CFR 214.2(h)(8)(ii)(F)(5)); and (3) the 
procedures for concurrent cap-exempt and cap-subject employment (final 
8 CFR 214.2(h)(8)(ii)(F)(6)). As discussed below, DHS did not make any 
changes to these provisions in response to public comment.
2. Public Comments and Responses
i. Include Government Entities in the Definition of ``Related or 
Affiliated''
    Comment. One commenter stated that DHS's failure to specifically 
reference government entities as a type of entity that could have a 
qualifying relationship or affiliation with an institution of higher 
education meant that government entities would be unable to request 
exemptions from the H-1B numerical limitations and ACWIA fees. The 
commenter argued that by only referring to nonprofit entities, the rule 
excluded government entities, notably Department of Veterans Affairs 
(VA) hospitals, from these exemptions. The commenter suggested revising 
the text of the proposed regulation at 8 CFR 214.2(h)(8)(ii)(F)(2) and 
(h)(19)(iii)(B) to specifically include governmental entities related 
to or affiliated with institutions of higher education in the 
provisions providing for exemption from the H-1B numerical limitations 
and ACWIA fees.
    Response. DHS thanks the commenter for the suggestion. In enacting 
sections 214(c)(9) and 214(g)(5) of the INA, Congress specifically 
identified the types of entities that are eligible for the cap and fee 
exemptions. DHS will not introduce additional entity types by 
regulation, but the agency will continue to consider exemption requests 
from government entities that are also organized as nonprofit entities. 
DHS notes that it did not propose a change to the definition of a 
``nonprofit organization'' in 8 CFR 214.2(h)(19)(iv) for purposes of 
the cap or fee exemptions. Consistent with the current practice, DHS 
will assess on a case-by-case basis whether a governmental organization 
has established that it is a nonprofit entity related to or affiliated 
with an institution of higher education for purpose of the ACWIA fee 
and H-1B numerical limitations.
ii. Clarify That a Nonprofit Entity Only Needs To Meet One of the 
Criteria in 8 CFR 214.2(h)(8)(ii)(F)(2) and 8 CFR 214.2(h)(19)(iii)(B)
    Comment. One commenter requested that DHS clarify in the final rule 
that a nonprofit entity, in order to qualify for exemption from the H-
1B numerical limitation, need only meet one of the criteria set forth 
in 8 CFR 214.2(h)(8)(ii)(F)(2). The commenter recommended specific 
edits to the regulatory text to clarify this point and to avoid 
potential confusion over the disjunctive nature of the criteria in the 
definition. The commenter also requested that DHS make corresponding 
revisions to the fee-exemption provision at proposed 8 CFR 
214.2(h)(19)(iii)(B).
    Response. DHS believes that the regulatory text at proposed 8 CFR 
214.2(h)(8)(ii)(F)(2) clearly provides that a nonprofit entity may 
qualify as ``related to or affiliated with'' an institution of higher 
education if it meets any one of the listed criteria. However, in 
response to the comment, DHS is revising the final rule by adding the 
phrase ``if it satisfies any one of the following conditions'' to the 
proposed text. DHS is also making conforming changes to 8 CFR 
214.2(h)(19)(iii)(B).

[[Page 82445]]

iii. The ``Primary Purpose'' Requirement for Nonprofit Entities Seeking 
Exemptions Based on Formal Written Affiliation Agreements
    Comment. As noted above, the NPRM would have allowed nonprofit 
entities to qualify for cap and fee exemptions based on formal written 
affiliation agreements with institutions of higher education so long as 
such agreements establish an active working relationship with the 
institution of higher education for the purposes of research or 
education, and the nonprofit entity establishes that one of its primary 
purposes is to directly contribute to the educational or research 
mission of the institution of higher education. See proposed 8 CFR 
214.2(h)(8)(ii)(F)(2)(iv) and 8 CFR 214.2(h)(19)(iii)(B)(4). This 
proposed path to eligibility for the cap and fee exemptions, which is 
not available under current policy, was intended to expand eligibility 
to nonprofit entities that maintain common, bona fide affiliations with 
institutions of higher education. Commenters were of the view that the 
term ``a primary purpose'' would make the provision overly restrictive 
and inconsistent with both the INA and the purpose of the proposed 
rule. Some commenters suggested eliminating any reference to the 
``purpose'' of the nonprofit, while one commenter suggested simply 
deleting the word ``primary'' while maintaining reference to the 
``purpose'' of the nonprofit entity. Another commenter claimed that the 
proposed regulatory definition was beyond DHS's statutory authority.
    Response. In response to public comment, DHS is revising 8 CFR 
214.2(h)(8)(ii)(F)(2)(iv) and (h)(19)(iii)(B)(4) to clarify the 
definition. Specifically, instead of referring to ``a primary purpose'' 
of the nonprofit entity, the final rule will require the nonprofit 
entity to show that ``a fundamental activity of the nonprofit entity is 
to directly contribute to the research or education mission of the 
institution of higher education'' (emphasis added). DHS emphasizes that 
a nonprofit entity may meet this definition even if it is engaged in 
more than one fundamental activity, so long as at least one of those 
fundamental activities is to directly contribute to the research or 
education mission of a qualifying college or university. This modified 
definition should capture those nonprofit entities that have bona fide 
affiliations with institutions of higher education and is consistent 
with the intent underlying the statute.
    While some commenters suggested deleting the requirement 
altogether, such that any entity could qualify merely by entering into 
any kind of affiliation agreement with a qualifying institution of 
higher education, DHS believes that Congress did not intend such a 
broad exemption from the cap and fee provisions. With respect to 
institutions of higher education, Congress intended to exempt those 
foreign national workers who would directly contribute to the research 
or education missions of those institutions; there is no evidence that 
Congress intended to allow exemptions based on agreements unrelated to 
those missions.\69\ Finally, DHS disagrees with the suggestion that the 
proposed definition is beyond DHS's statutory authority. Congress chose 
not to define the term ``related or affiliated,'' thus delegating the 
authority and responsibility to interpret that term to DHS. In this 
rule, DHS acts within its statutory authority by codifying a definition 
that is consistent with the statutory intent to provide exemptions for 
certain nonprofit entities that directly contribute to the higher 
education of Americans.\70\
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    \69\ See S. Rep. No. 106-260 (Apr. 11, 2000) (providing that 
individuals should be considered cap exempt because ``by virtue of 
what they are doing, people working in universities are necessarily 
immediately contributing to educating Americans'' and not simply 
referencing the identity of the petitioning employer).
    \70\ Id.
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iv. Formal Written Affiliation Agreement
    Comment. Similarly, several commenters objected to the requirement 
in proposed 8 CFR 214.2(h)(8)(ii)(F)(2)(iv) and 8 CFR 
214.2(h)(19)(iii)(B)(4) that the qualifying affiliation agreement be 
formal and in writing. These commenters proposed deleting this 
requirement and simply revising the rule to only require that the 
nonprofit entity have ``an affiliation'' with an institution of higher 
education in order to qualify for the cap and fee exemptions.
    In addition, these commenters offered suggested edits to the 
regulatory text to ensure that a nonprofit entity that submits a formal 
written affiliation agreement is also not required to affirmatively 
prove that the entity is not owned or controlled by the institution of 
higher education. These commenters requested that proposed 8 CFR 
214.2(h)(8)(ii)(F)(2)(iv) be revised to remove the phrase ``absent 
shared ownership and control'' to describe the nonprofit entity's 
affiliation with an institution of higher education. Some of these 
commenters also asked DHS to make conforming edits to 8 CFR 
214.2(h)(19)(iii)(B)(4), so the cap and fee exemption provisions remain 
identical. These commenters also suggested that DHS include deference 
to other agency determinations of affiliation as an alternative to 
requiring a formal written affiliation agreement.
    Response. DHS appreciates the concerns expressed by the commenters 
but believes that it is reasonable to require nonprofit entities to 
submit formal written affiliation agreements with institutions of 
higher education as evidence that they are adequately affiliated with 
such institutions and thus exempt from the cap and fee exemptions. DHS 
believes that submission of such affiliation agreements is important to 
ensure that the nonprofit entities will directly further the 
educational or research missions of the affiliated institutions of 
higher education.\71\ A petitioner may wish to submit, or DHS may 
require the submission of, additional evidence to corroborate the 
nature of the affiliation and the nonprofit entity's activities.
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    \71\ See Aytes Memo June 2006, at 3 (citing S. Rep. No. 106-260, 
which stated that individuals should be considered cap exempt ``by 
virtue of what they are doing'' and not simply by reference to the 
identity of the petitioning employer).
---------------------------------------------------------------------------

    Based on the comments received, DHS is removing the phrase ``absent 
a demonstration of shared ownership or control'' from 8 CFR 
214.2(h)(8)(F)(2)(iv) and 8 CFR 214.2(h)(19)(iii)(B)(4) to clarify that 
a nonprofit entity need not prove the absence of shared ownership or 
control when relying on the existence of a formal affiliation agreement 
to establish that the entity is related to or affiliated with an 
institution of higher education. As proposed, the language was intended 
merely to signify that an affiliation agreement was one option for 
establishing that the requisite affiliation or relationship exists 
between the entities; DHS did not intend the phrase to require evidence 
of the absence of ownership or control.
    DHS is not adopting the commenters' recommendation to allow for 
deference to another agency's determination that a nonprofit entity is 
related to or affiliated with an institution of higher education. Such 
determinations, including those made by state or local agencies, could 
be based on a different substantive standard than the INA requires and 
could result in inconsistent treatment of similar relationships and 
affiliations. Therefore, in the final rule, DHS adopts a standard that 
it will apply consistently across all H-1B petitions claiming cap and 
fee exemptions.

[[Page 82446]]

v. Impose Additional Requirements To Qualify as an Institution of 
Higher Education
    Comment. One commenter suggested DHS limit the cap exemption for 
educational institutions to those institutions that are accredited by 
an accrediting agency recognized by the Department of Education and 
that meet federal and state standards for quality educational 
institutions.
    Response. DHS is not adopting the commenter's suggestion because 
the term ``institution of higher education'' is specifically defined in 
the INA by reference to 20 U.S.C. 1001(a). See INA 214(g)(5)(A), 8 
U.S.C. 1184(g)(5)(A). The definition in 20 U.S.C. 1001(a) includes 
specific reference to accreditation and other standards. As such, DHS 
will not impose additional requirements or modify the definition of the 
term ``institution of higher education'' in this final rule.
vi. Impose Additional Requirements on the Nature of Employment at a 
Qualifying Nonprofit Entity and Nonprofit Research Organization
    Comment. One commenter suggested that DHS limit the availability of 
cap and fee exemptions, for nonprofit entities and nonprofit research 
organizations, only to those entities and organizations that can 
document that the employment of H-1B nonimmigrant workers is for the 
purpose of educating Americans to work in specialty occupation fields. 
To accomplish this change, the commenter recommended that DHS revise 
the definition of the terms ``nonprofit entity'' and ``nonprofit 
research organization'' at proposed 8 CFR 214.2(h)(8)(ii)(F)(3). 
Specifically, the commenter recommended incorporating into the 
definition the condition that the entity or organization is primarily 
employing cap-exempt H-1B nonimmigrant workers to educate Americans so 
that they may immediately qualify for employment in a specialty 
occupation upon graduation.
    Response. DHS declines to adopt the commenter's suggestion. DHS 
does not believe it would be consistent with congressional intent to 
impose such a highly limiting restriction on the otherwise broad array 
of nonprofit entities and nonprofit research organizations that may be 
eligible for a cap exemption under INA 214(g)(5). As previously 
discussed, legislative history indicates that Congress intended to 
include those entities and organizations that are directly contributing 
to the education and research missions of institutions of higher 
education. DHS believes the regulatory text in this final rule 
appropriately reflects this intent.
vii. Expand Interpretation of Research Organization
    Comment. Several commenters stated that the current definition of 
the terms ``nonprofit research organization'' and ``governmental 
research organization'' in the ACWIA fee-exemption regulation at 8 CFR 
214.2(h)(19)(iii)(C), which the proposed rule adopted for purposes of 
the AC21 H-1B cap exemption at 8 CFR 214.2(h)(8)(ii)(F)(3), is 
inappropriately limited. These commenters questioned the basis for the 
requirement that qualifying nonprofit research and governmental 
research organizations be ``primarily'' engaged in or promoting 
research. The commenters therefore recommended deleting the words 
``primarily'' and ``primary'' in 8 CFR 214.2(h)(19)(iii)(C).
    Response. DHS does not agree with the commenters' suggestions to 
remove the requirement that research organizations be either (1) 
nonprofit entities ``primarily'' engaged in basic or applied research 
or (2) governmental entities whose ``primary'' mission is the 
performance or promotion of basic or applied research. These 
limitations have been in place since 1998 with regard to fee exemptions 
\72\ and have been in effect for more than a decade for purposes of the 
cap exemptions.\73\ The ``primarily'' and ``primary'' requirements were 
not the subject of any comments when the ACWIA fee regulation was 
promulgated,\74\ and the commenters who raised concerns with these 
limitations in this rulemaking provided no legal or policy 
justification for eliminating those requirements. DHS believes that 
maintaining these longstanding interpretations, which include the 
``primarily'' and ``primary'' requirements, will serve to protect the 
integrity of the cap and fee exemptions as well as clarify for 
stakeholders and adjudicators what must be proven to successfully 
receive such exemptions. The requirements thus will be retained for 
purposes of the ACWIA fee exemption under final 8 CFR 
214.2(h)(19)(iii)(C), and also will continue to apply to the cap 
exemption. See final 8 CFR 214.2(h)(8)(ii)(F)(3) (adopting the ACWIA 
fee exemption definition for purposes of the cap exemption).
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    \72\ See Petitioning Requirements for the H-1B Nonimmigrant 
Classification Under Public Law 105-277, 63 FR 65657 (Nov. 30, 1998) 
(interim rule) (promulgating the ACWIA fee regulation at 8 CFR 
214.2(h)(19)(iii)(C)). This rule was finalized with unrelated 
amendments in 2000. See Petitioning Requirements for the H-1B 
Nonimmigrant Classification Under Public Law 105-277, 65 FR 10678 
(Feb. 29, 2000).
    \73\ See Aytes Memo June 2006, at 4-5.
    \74\ See 65 FR 10678.
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    Comment. A commenter expressed the view that proposed 8 CFR 
214.2(h)(19)(iii)(C), as adopted for purposes of the AC21 H-1B cap 
exemption at 8 CFR 214.2(h)(8)(ii)(F)(3), would incorrectly limit 
``governmental research organizations'' to federal government research 
organizations. The commenter stated that DOL reviewed the same issue 
when it published its final ACWIA prevailing wage rules and concluded 
that the words ``Governmental'' (capitalized) and ``governmental'' 
(lower case) convey different meanings, the former referring only to 
federal governmental entities and the latter referring to federal, 
state, and local governmental entities. The commenters therefore 
recommended deleting references in 8 CFR 214.2(h)(19)(iii)(C) to the 
``United States Government.''
    Response. DHS agrees with the suggestion that the term 
``governmental'' should be interpreted to include state and local 
governmental research organizations in addition to U.S. (i.e., federal) 
governmental research organizations. Whether governmental research 
organizations should include state and local government research 
entities was a straightforward determination when ACWIA was first 
enacted in 1998. In its original form, the ACWIA statute provided a fee 
exemption to employers described in INA section 212(p)(1), 8 U.S.C. 
1182(p)(1), which in turn referenced ``Governmental'' (capitalized) 
research organizations. See ACWIA sections 414(a), 415(a). Thereafter, 
DOL and the legacy Immigration and Naturalization Service (INS) 
promulgated prevailing wage and ACWIA fee-exemption regulations, 
respectively.\75\ In these rulemakings, DOL and INS specifically 
discussed suggestions from commenters that the term ``Governmental 
research organization'' should include state and local governmental 
organizations. DOL concluded that because the ``G'' in the word 
``Governmental'' was capitalized, the provision was limited to U.S. 
(federal) governmental research organizations.\76\ For its part, INS 
explained that it did not exempt state and local governmental 
organizations from the fee because Congress did not specifically 
reference them.\77\
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    \75\ 65 FR 80109 (Dec. 20, 2000) (DOL rule); 65 FR 10678 (Feb. 
29, 2000) (INS rule).
    \76\ See 65 FR 80109, 80183.
    \77\ See 65 FR 10678, 10680.
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    In evaluating the commenter's analysis supporting its request that 
the phrase ``governmental research

[[Page 82447]]

organization'' no longer be limited to federal governmental 
organizations in this final rule, DHS takes into account Congress's 
actions following enactment of ACWIA and the current ambiguous 
statutory language. In 2000, two years after ACWIA was signed into law, 
Congress enacted the cap exemption provision in AC21, which exempted 
``governmental research organizations'' (lowercase) from the H-1B cap. 
See AC21 103. Congress also passed legislation that amended the ACWIA 
fee statute by removing the cross-reference to section 212(p) (which 
used the capitalized ``Governmental'') from the section 214(c)(9) text 
and replacing it with language indicating that certain ``governmental'' 
(lowercase) research entities are exempt. See Public Law 106-311, 
section 1. Legacy INS and later USCIS have not since revised the 
regulation limiting the fee exemption to federal governmental research 
organizations.
    DHS believes that these intervening statutory changes support the 
commenter's requested change. In addition, the commenter's requested 
change would ensure that the DHS and DOL interpretations remain 
consistent in this context and reflect a recognition that the federal 
government does not have a monopoly on consequential government-led 
research and development efforts.\78\ Accordingly, DHS is accepting the 
commenter's suggestion to define ``governmental research 
organizations'' to include state and local government research 
organizations for purposes of the cap exemption and fee exemption. DHS 
is therefore adopting a definition of ``governmental research 
organization'' for both cap and fee exemptions that covers federal, 
state, and local governmental research organizations.\79\ See final 8 
CFR 214.2(h)(19)(iii)(C).
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    \78\ See National Science Foundation, Survey of State Government 
Research and Development: FYs 2012 and 2013 (June 2015), available 
at https://www.nsf.gov/statistics/2015/nsf15323/pdf/nsf15323.pdf.
    \79\ As noted, it has long been USCIS policy to apply the same 
definition of ``governmental research organization'' for both cap 
and fee exemptions. See Aytes Memo June 2006, at 4-5. In the NPRM 
for this rulemaking, DHS made clear its intent to continue aligning 
definitions for both exemptions by explicitly linking the AC21 cap 
exemption to the ACWIA fee-exemption definitions. See 80 FR at 81910 
(explaining that DHS is adopting the ACWIA fee definition of 
``governmental research organization'' for purposes of the cap 
exemption); see also id. at 81919 (explaining that ``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''). Multiple commenters supported this approach.
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viii. Requirement That the H-1B Worker Perform a Majority of Duties 
``at'' the Cap Exempt Entity
    Comment. One commenter objected to extending the cap exemption to 
individuals who are employed ``at'' a qualifying institution, 
organization or entity rather than limiting the cap exemption to those 
employed ``by'' such an institution, organization or entity. Other 
commenters supported the extension of the cap exemption but objected to 
the ``majority of work time'' requirement, which was proposed as a 
condition for the cap exemption when an H-1B beneficiary is not a 
direct employee of a qualifying institution, organization or entity. 
These commenters contested the proposed rule's requirements that an H-
1B beneficiary who is not directly employed by a qualifying 
institution, organization or entity can only be eligible for a cap 
exemption if such beneficiary will spend a majority of his or her work 
time performing job duties at a qualifying institution, organization or 
entity and if those job duties directly and predominately further the 
essential purpose, mission, objectives or functions of the qualifying 
institution, organization or entity. See proposed 8 CFR 
214.2(h)(8)(ii)(F)(4). These commenters requested that DHS eliminate 
the proposed requirement that such an H-1B beneficiary show that the 
majority of his or her work time will be spent performing job duties at 
a qualifying institution, organization or entity. These commenters also 
objected to the requirement that the H-1B petitioner 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.
    Response. DHS believes that its policy extending the cap exemption 
to individuals employed ``at'' and not simply employed ``by'' a 
qualifying institution, organization or entity is consistent with the 
language of the statute and furthers the goals of AC21 to improve 
economic growth and job creation by immediately increasing U.S. access 
to high-skilled workers, and particularly at these institutions, 
organizations, and entities.\80\ DHS, moreover, believes that the 
``majority of work time'' requirement is a reasonable means to ensure 
that Congress' aims in exempting workers from the H-1B cap based on 
their contributions at qualifying institutions, organizations or 
entities are not undercut by employment that is peripheral to those 
contributions. DHS is not adopting the changes suggested by the 
commenters as these provisions in the final rule simply codify policy 
and practice designed to protect the integrity of the cap exemption. 
See final 8 CFR 214.2(h)(8)(ii)(F)(4).
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    \80\ See S. Rep. No. 260, at 10.
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ix. Codify Existing USCIS Deference Policy
    Comment. Some commenters stated that the final rule should codify 
the current deference policy from the 2011 Interim Policy Memo under 
which USCIS generally defers to a prior agency determination that a 
nonprofit entity is exempt from the H-1B numerical limitations based on 
its relation to or affiliation with an institution of higher 
education.\81\ These commenters stated that the lack of a deference 
regulation has led to uncertainty and unpredictability for employers 
and prospective H-1B nonimmigrant workers because adjudicators 
reviewing the same facts can reach opposite conclusions.
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    \81\ See USCIS Interim Policy Memorandum, ``Additional Guidance 
to the Field on Giving Deference to Prior Determinations of H-1B Cap 
Exemption Based on Affiliation'' (Apr. 28, 2011) (2011 Interim 
Policy Memo).
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    Response. DHS is not adopting this suggestion. The deference policy 
was expressly instituted as interim guidance to promote consistency in 
adjudications while USCIS reviewed its overall policy on H-1B cap 
exemptions for nonprofit entities that are related to or affiliated 
with an institution of higher education. This final rule represents the 
culmination of USCIS's review of past policy and public input on this 
issue. In this final rule, DHS specifies the means by which a nonprofit 
entity may establish that it is related to or affiliated with an 
institution of higher education. The final rule better reflects current 
operational realities for institutions of higher education and how they 
interact with, and sometimes rely on, nonprofit entities, and account 
for the nature and scope of common, bona fide affiliations between 
nonprofit entities and institutions of higher education. Rather than 
continuing to provide deference to past determinations of cap exemption 
under the 2011 Interim Policy Memo, the final rule includes the final 
evidentiary criteria that USCIS will now use to determine whether 
individuals employed at a nonprofit entity will be exempt from H-1B 
numerical limitations, and, as such, supersedes past guidance in this 
area.

[[Page 82448]]

x. Create a Mechanism To Obtain a Pre-Determination of Cap Exemption
    Comment. One commenter suggested that DHS create a mechanism for an 
H-1B petitioner to obtain a pre-determination of whether it qualifies 
for an exemption from the H-1B numerical limitations.
    Response. DHS appreciates the commenter's suggestion and is in the 
process of evaluating how to address the administration of these cap 
and fee exemption provisions procedurally.
xi. Allot H-1B Visas Subject to the Cap on a Quarterly Basis
    Comment. One commenter suggested that DHS allot H-1B visas subject 
to the H-1B numerical limitations on a quarterly basis.
    Response. DHS is unable to address this suggestion as it is outside 
the scope of this rulemaking.
xii. Request for Continuation of Cap-Subject Employment When Concurrent 
Cap-Exempt H-1B Employment Ends
    Comment. A few commenters suggested that when cap-exempt employment 
ceases, any concurrent H-1B employment with a cap-subject employer 
should be authorized to continue until the end of the existing H-1B 
validity period. One commenter stated that tying the validity period of 
an unrelated cap-exempt petition to the validity of a concurrent cap-
subject petition is overly burdensome, as there is no requirement that 
employment for the cap-exempt petitioner and the cap-subject petitioner 
be related, and they may be on different hiring cycles. Another 
commenter stated that cap-exempt H-1B visa holders may have difficulty 
changing jobs as their only logical option is to move to another cap-
exempt employer or, in the alternative, to attempt to obtain a cap-
subject H-1B visa, which has frequently required going through the H-1B 
lottery in April of each year.
    Response. DHS appreciates the challenges that cap-subject employers 
and H-1B visa holders may face when previously approved cap-exempt 
concurrent employment ceases, and that transitioning from cap-exempt 
employment to cap-subject employment may be challenging. However, as 
soon as an H-1B nonimmigrant worker ceases employment with a cap-exempt 
employer, that worker becomes subject to the H-1B numerical 
limitations. Section 103 of AC21 specifically provides that if an H-1B 
nonimmigrant worker was not previously counted against the cap, and if 
no other exemption from the cap applies, then the H-1B nonimmigrant 
worker will be subject to the cap once employment with a cap-exempt 
entity ceases. See INA 214(g)(6), 8 U.S.C. 1184(g)(6).
    In the scenario contemplated by the commenter, the basis for the H-
1B nonimmigrant worker's employment with an employer that normally 
would be cap-subject is an exemption from the otherwise controlling H-
1B numerical limits based on concurrent employment at a cap-exempt 
institution, entity or organization as described in section 
214(g)(5)(A) and (B) of the INA, 8 U.S.C. 1184(g)(5)(A) and (B). If the 
concurrent cap-exempt employment ceases before the end of the petition 
validity period of the cap-subject employment, and the H-1B 
nonimmigrant worker is not otherwise exempt from the numerical 
limitations, USCIS may revoke the approval of the cap-subject 
concurrent employment petition. Because the concurrent employment at a 
cap-subject employer is considered cap-exempt solely because the H-1B 
nonimmigrant worker's concurrent cap-exempt employment is continuing, 
DHS believes it is reasonable to limit the cap-subject concurrent 
employment approval period to the approved concurrent cap-exempt 
employment. Although concurrent employers may be on different hiring 
cycles, this does not change the fact that the concurrent cap-subject 
employment is contingent upon the continuation of the cap-exempt 
employment. As such, DHS is not adopting the commenter's suggestion to 
allow for approval validity periods of cap-subject concurrent 
employment to exceed the validity period of the concurrent cap-exempt 
employment.
xiii. Prohibit Cap-Exempt H-1B Worker From Concurrent Employment
    Comment. One commenter stated that a cap-exempt H-1B worker should 
be unable to obtain approval for concurrent employment except under 
another cap-exempt H-1B petition. This commenter disagreed with the 
codification in proposed 8 CFR 214.2(h)(8)(ii)(F)(5) of the existing 
policy allowing a cap-exempt H-1B nonimmigrant worker, based on 
continued employment at an institution, organization or entity under 
INA 214(g)(5)(A) and (B), to be concurrently employed by a cap-subject 
employer. The commenter suggested revising the rule to prohibit 
concurrent employment by a cap-exempt H-1B nonimmigrant worker unless 
the concurrent employment is independently exempt from the H-1B 
numerical limitations.
    Response. DHS is not adopting this suggestion because it is 
inconsistent with our longstanding policy and practice to allow a cap-
exempt H-1B nonimmigrant worker, who is cap-exempt based on continued 
employment at an institution, organization or entity under INA 
214(g)(5)(A) and (B), to be concurrently employed by a cap-subject 
employer. Consistent with INA 214(g)(6), if the H-1B nonimmigrant 
worker ``ceases'' his or her cap-exempt employment, the H-1B 
nonimmigrant worker would become subject to the numerical cap, unless 
otherwise exempt.

K. Exemptions to the Maximum Admission Period of H-1B Nonimmigrants

1. Description of the Final Rule and Changes From the NPRM
    In this final rule, DHS is consolidating and codifying longstanding 
DHS policy implementing sections of AC21 related to the method for 
calculating time counted toward the maximum period of H-1B admission, 
as well as determining exemptions from such limits. Specifically, the 
final rule addresses: (1) When an H-1B nonimmigrant worker can 
recapture time spent physically outside of the United States (see final 
8 CFR 214.2(h)(13)(iii)(C)); (2) whether the beneficiary of an H-1B 
petition should be counted against the H-1B numerical cap (see final 8 
CFR 214.2(h)(13)(iii)(C)(2)); (3) when an individual qualifies for an 
H-1B extension beyond the general 6-year limit due to lengthy 
adjudications delays (see final 8 CFR 214.2(h)(13)(iii)(D)); and (4) 
when an individual qualifies for an H-1B extension beyond the general 
6-year limit due to the per-country limitations on immigrant visas (see 
final 8 CFR 214.2(h)(13)(iii)(E)). Together, these provisions in the 
final rule will enhance consistency among DHS adjudicators and provide 
a primary repository of governing rules for the regulated community.
    In response to public comment, DHS is also providing several 
clarifications in the final rule. First, DHS has amended the regulatory 
text at 8 CFR 214.2(h)(13)(iii)(C) to more clearly provide that 
remaining H-1B time may be recaptured at any time before the foreign 
worker uses the full period of H-1B admission described in section 
214(g)(4) of the INA. Second, DHS has made several edits to simplify 
and streamline the regulatory text at 8 CFR 214.2(h)(13)(iii)(D), which 
describes eligibility for the ``lengthy adjudication delay'' exemption 
afforded by section 106(a) and (b) of AC21 to the general 6-year 
maximum period of H-1B admission. In particular, the final rule

[[Page 82449]]

makes clear that to be eligible for this exemption, the individual must 
have had an application for labor certification or a Form I-140 
petition filed on his or her behalf at least 365 days before the date 
the exemption would take effect. See final 8 CFR 
214.2(h)(13)(iii)(D)(1), (5), and (7). The final rule further clarifies 
that an individual becomes ineligible for the lengthy adjudication 
delay exemption if he or she fails to apply for adjustment of status or 
an immigrant visa within 1 year of the date an immigrant visa is 
authorized for issuance. See final 8 CFR 214.2(h)(13)(iii)(D)(10). The 
final rule also clarifies that exemptions pursuant to section 106(a) of 
AC21 may only be made in 1-year increments. See final 8 CFR 
214.2(h)(13)(iii)(D)(2).
    Finally, DHS is making a correction to 8 CFR 214.2(h)(13)(iii)(E), 
which was intended to codify existing policy regarding eligibility for 
H-1B status beyond the general 6-year maximum, pursuant to section 
104(c) of AC21, for certain individuals who are beneficiaries of Form 
I-140 petitions but are affected by the per-country limitations.\82\ In 
the proposed rule, DHS unintentionally departed from existing policy by 
requiring an individual seeking an H-1B extension under this provision 
to show visa unavailability both at the time of filing and at the time 
of adjudication. In the final rule, consistent with longstanding 
policy, DHS requires petitioners to only demonstrate immigrant visa 
unavailability as of the date the H-1B petition is filed with USCIS. 
See final 8 CFR 214.2(h)(13)(iii)(E).
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    \82\ Under longstanding agency policy, H-1B extensions of stay 
may be granted pursuant to section 104(c) of AC21 regardless of 
whether the beneficiary of the Form I-140 petition will seek 
immigrant status by means of adjustment of status or consular 
processing. See Neufeld May 2008 Memo, at 6. Section 104(c) 
specifies that individuals become ineligible for extensions of stay 
after a decision is made on an application for adjustment of status, 
and this final rule provides that eligibility likewise terminates 
when the beneficiary's application for an immigrant visa is approved 
or denied. See final 8 CFR 214.2(h)(13)(iii)(E)(2)(ii). If 
individuals who seek to consular process are authorized for H-1B 
extensions of stay under section 104(c) despite adjudication of 
their immigrant visa applications, they could remain eligible for 
the extension indefinitely, even if their immigrant visa 
applications or adjustment of status applications are denied. These 
individuals could also strategically choose to seek an immigrant 
visa by means of consular processing rather than by adjusting status 
in order to benefit from indefinite extensions of H-1B status.
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2. Public Comments and Responses
i. Recapture of H-1B Time
    Comment. A few commenters urged DHS to clarify that there is no 
``statute of limitations'' on recapture. Some of these commenters noted 
that nothing in INA 214(g)(7) restricts USCIS from granting unused H-1B 
time when a recapture request is made more than 6 years after the 
initial grant of the H-1B petition. One commenter asked DHS to clarify 
that time spent inside the United States in another nonimmigrant status 
is ``recapturable.'' This commenter stated that the proposed regulatory 
text allows recapture only for time in which the foreign national was 
physically outside the United States.
    Response. In the final rule, DHS clarifies that, consistent with 
its existing policy, there is no time limitation on recapturing the 
remainder of the initial 6-year period of H-1B admission under INA 
214(g)(4).\83\ DHS notes, however, that the remainder of any time 
granted pursuant to an AC21 extension cannot be recaptured. The purpose 
of this clarification is to promote consistency and efficiency in 
recapture determinations in accordance with the policy objectives 
described in USCIS's December 5, 2006 policy memorandum from Michael 
Aytes outlining the recapture policy.\84\
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    \83\ USCIS Memorandum from Michael Aytes, ``Guidance on 
Determining Periods of Admission for Aliens Previously in H-4 or L-2 
Status; Aliens Applying for Additional Periods of Admission beyond 
the H-1B Six Year Maximum; and Aliens Who Have Not Exhausted the 
Six-Year Maximum But Who Have Been Absent from the United States for 
Over One Year.,'' at 4-5 (Dec. 5, 2006) (Aytes Dec. 2006 memo), 
available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/periodsofadm120506.pdf.
    \84\ Id.
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    The relevant USCIS policy memoranda,\85\ although not codified, 
specify that the ``remainder'' period of the initial 6-year admission 
period is that full admission period minus any time that the H-1B 
nonimmigrant worker previously spent in the United States in valid H-1B 
or L-1 status. This policy thus allows time spent inside the United 
States in any other nonimmigrant status (i.e., any nonimmigrant status 
other than H-1B or L-1) to be ``recapturable.'' This final rule does 
not impose any additional limits on this policy. See final 8 CFR 
214.2(h)(13)(iii)(C).
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    \85\ Aytes, Dec. 2006 memo; USCIS memorandum from Michael Aytes, 
``Procedures for Calculating Maximum Period of Stay Regarding the 
Limitations on Admission for H-1B and L-1 Nonimmigrants (AFM Update 
AD 05-21)'' (Oct. 21, 2005), available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2005/recaptureh1bl1102105.pdf (``Because 
section 214(g)(4) of the Act states that `the period of authorized 
admission' may not exceed 6 years, and because `admission' is 
defined as `the lawful entry of the alien into the United States 
after inspection and authorization by an immigration officer' only 
time spent in the United States as an H-1B counts towards the 
maximum.'')
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    Comment. One commenter requested that the regulation clarify and 
expand the types of evidence that may be submitted to support the 
specific amount of time the H-1B nonimmigrant worker seeks to 
recapture. The commenter suggested that USCIS consider, in addition to 
passport stamps and travel tickets, other similar records and evidence 
of an individual's presence in another country, such as employer, 
school or medical records.
    Response. DHS believes that the final regulation is broad enough to 
allow for submission of the additional types of records proposed by the 
commenter, and that the language suggested by the commenter therefore 
is unnecessary. See final 8 CFR 214.2(h)(13)(iii)(C)(1).
ii. AC21 106(a) and (b)--Lengthy Adjudication Delay Exemptions
    Comment. One commenter expressed concern that the proposed 
provision relating to lengthy adjudication delay exemptions was under-
inclusive. The commenter interpreted the language to suggest that 1-
year extensions of H-1B status pursuant to section 106(a) of AC21 would 
be available only if the permanent labor certification application or 
Form I-140 petition was filed 365 days or more prior to the 6-year 
limitation being reached. The commenter stated that such a policy would 
be legally impermissible because under section 106(a) of AC21, and as 
reflected in current DHS policy memoranda, these 1-year H-1B extensions 
are available to a beneficiary of a permanent labor certification 
application or Form I-140 petition filed at least 365 days prior to the 
requested extension start date, even if that date is less than 365 days 
before the 6-year limitation will be reached. The commenter further 
noted that individuals should be eligible for such 1-year H-1B 
extensions even if they are in their 6th year of H-1B status or even if 
they are not in H-1B status at all.
    Response. DHS agrees with the commenter that AC21 and current DHS 
policy allow certain beneficiaries to obtain H-1B status for another 
year if 365 days have passed since the filing of the permanent labor 
certification or Form I-140 petition, even if the permanent labor 
certification application or Form I-140 petition was not filed 365 days 
or more prior to the end of the 6-year limitation.\86\ Section

[[Page 82450]]

106(a) of AC21 states that the limitations contained in section 
214(g)(4) of the INA do not apply to the H-1B nonimmigrant worker if 
365 days or more have elapsed since the filing of an application for 
permanent labor certification or Form I-140 petition on the 
individual's behalf. The regulation as proposed did not accurately 
capture the statute or DHS policy and practice, and DHS has therefore 
corrected the provision in this final rule to make clear that an 
application for permanent labor certification or Form I-140 petition 
only needs to be filed at least 365 days before the exemption would 
take effect.\87\ See final 8 CFR 214.2(h)(13)(iii)(D)(1), (5), and (7).
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    \86\ DHS does not require that an individual who relies on one 
permanent labor certification application or Form I-140 petition for 
purposes of an extension under this provision rely on the same labor 
certification application or Form I-140 petition for purposes of a 
subsequent extension request.
    \87\ As explained in the proposed rule, requests for 1-year 
extensions of H-1B status under the lengthy adjudication delay can 
include any periods of time the foreign national spent outside the 
United States during previous H-1B petition validity for which 
``recapture'' is sought, as well as any H-1B ``remainder'' periods 
available to the foreign national. See 8 CFR 214.2(h)(13)(iii)(C); 8 
CFR 214.2(h)(9)(iii)(A)(1) and 8 CFR 214.2(h)(15)(ii)(B) (explaining 
that in no case may an H-1B approval period exceed 3 years or the 
period of LCA validity).
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    Further, DHS agrees with the commenter that, in certain 
circumstances, foreign workers need not be in H-1B status to be 
eligible for the lengthy adjudication delay exemptions under section 
106(a) and (b) of AC21, as long as they ``previously held'' H-1B 
status. This provision, as proposed and finalized in this rule, allows 
foreign workers to obtain additional periods of H-1B status through 
petitions to change status or through admission after H-1B visa 
issuance at a U.S. consulate.
    Comment. A few commenters objected to the provision that makes an 
individual ineligible for the lengthy adjudication delay exemption if 
he or she fails to file an application for adjustment of status within 
1 year of the date an immigrant visa becomes available. Commenters 
thought that the 1-year requirement is unnecessary, is beyond DHS's 
legal authority, is contrary to the statute, and would force 
inappropriate concurrent or premature filings. Additionally, commenters 
stated that including a provision tying AC21 extension time to 
immigrant visa availability would hamper H-1B portability and be 
difficult to apply due to pace of visa availability progression and 
retrogression. Related to this, a commenter requested that DHS clarify 
the exact circumstances under which an immigrant visa is deemed to be 
immediately available. One commenter asked DHS to revise the provision 
by extending the 1-year limit to a minimum of two years to provide 
additional time for beneficiaries of Form I-140 petitions who lose 
their jobs to port to new H-1B employment. Finally, one commenter 
objected to the proposed requirements on the grounds that they could 
negatively affect an H-1B beneficiary who is subject to the J-1 
program's 2-year foreign residence requirement under section 212(e) of 
the INA because the foreign national would be unable to file an 
application for adjustment of status until he or she fulfills the two-
year home residency requirement of section 212(e) or obtains a waiver 
of the residency requirement.
    Response. In section 106(a) of AC21, Congress provided exemptions 
to the general 6-year limitation on H-1B admission for certain 
individuals who experience lengthy adjudication delays in the 
processing of their applications for adjustment of status. However, in 
section 106(b), Congress placed a 1-year temporal limitation on the 
extension period afforded to these individuals. The intent of this 
exemption was to help facilitate the adjustment of status of those 
individuals whose process was stymied due to adjudication delays. 
Allowing foreign workers to benefit from the exemption when they do not 
file applications for adjustment of status after an immigrant visa 
becomes immediately available, may allow such workers to remain in H-1B 
status indefinitely, which would run counter to the purpose of the 
statute. See S. Rep. No. 260, at 23. To avoid this result, DHS is 
confirming that beneficiaries of section 106(a) must file an 
application for adjustment of status within 1 year of immigrant visa 
availability.\88\
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    \88\ Unless otherwise indicated on the USCIS Web site at 
www.uscis.gov/visabulletininfo, individuals seeking to file 
applications for adjustment of status with USCIS must use the DOS 
monthly Visa Bulletin ``Final Action Dates'' chart indicating when 
individuals may file such applications. The Visa Bulletin is 
available at https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html. When USCIS determines that there are more 
immigrant visas available for the fiscal year than there are 
documentarily qualified immigrant visa applicants (as reported by 
DOS) and pending applicants for adjustment of status, after 
accounting for the historic drop off rate (e.g., denials, 
withdrawals, abandonments), USCIS will state on its Web site that 
applicants may instead reference the ``Dates for Filing Visa 
Applications'' charts in this Visa Bulletin to determine whether 
they may apply for adjustment of status. Specific questions related 
to DOS's determinations are beyond the scope of this rulemaking.
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    DHS believes that, overall, the 1-year filing requirement is 
consistent with congressional intent and provides a reasonable amount 
of time for an individual to take the necessary steps toward obtaining 
lawful permanent residence, despite visa number retrogression and 
progression. In addition, DHS believes that tying the extension to 
immigrant visa availability will encourage individuals to pursue lawful 
permanent residence without interfering with the ability of petitioners 
to file H-1B portability petitions on behalf of foreign workers.\89\ 
DHS therefore is finalizing the provision with some technical 
clarifying revisions.
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    \89\ Individuals who apply for adjustment of status generally 
may apply for employment authorization and, if eligible, may receive 
employment authorization documents. Upon issuance of employment 
authorization, such individuals would not require H-1B portability 
to be able to work in the United States.
---------------------------------------------------------------------------

    The final rule also retains current policy that alleviates concerns 
raised by commenters about the 1-year filing requirement. Specifically, 
the rule resets the 1-year clock following any period in which an 
application for adjustment of status or immigrant visa could not be 
filed due to the unavailability of an immigrant visa. It also 
authorizes USCIS to excuse the failure to timely file such an 
application, as a matter of discretion, if an individual establishes 
that the failure to apply was due to circumstances beyond his or her 
control. The final rule further clarifies that for purposes of 
determining when an individual becomes ineligible for the lengthy 
adjudication delay exemption, DHS will look to see if he or she failed 
to apply for adjustment of status or an immigrant visa within 1 year of 
the date an immigrant visa is authorized for issuance based on the 
applicable Final Action Date in the Visa Bulletin. See final 8 CFR 
214.2(h)(13)(iii)(D)(10).
    DHS recognizes that individuals admitted in J-1 status who are 
subject to a 2-year foreign residence requirement may experience 
uncertainty when seeking post-sixth year H-1B extensions under section 
106(a) of AC21, but the Department believes that this uncertainty is 
balanced by including the discretion to excuse late filings due to 
circumstances beyond the individual's control. See id.
    Comment. One commenter opposed the provision that prohibits 
extensions of H-1B status based on lengthy adjudication delays in cases 
in which the approval of the Form I-140 petition has been revoked, 
particularly in cases in which the revocation is based on employer 
withdrawal. The commenter stated that such a policy is contrary to the 
statute, will hinder worker portability, and will increase costs to new 
employers.
    Response. DHS did not propose an across-the-board ban on future H-
1B extensions in cases in which employers withdraw their Form I-140 
petitions. In

[[Page 82451]]

fact, under this final rule, DHS will no longer automatically revoke 
the approval of a Form I-140 petition based on petitioner withdrawal or 
termination of the petitioner's business if the petition has been 
approved or the associated application for adjustment of status has 
been pending for 180 days or more. As long as the approval has not been 
revoked, the Form I-140 petition will generally continue to be valid 
with regard to the beneficiary for various job portability and status 
extension purposes under the immigration laws, including extensions of 
status for certain H-1B nonimmigrant workers under sections 104(c) and 
106(a) and (b) of AC21. See final 8 CFR 205.1(a)(3)(iii)(C) and (D).
    Comment. One commenter suggested that in situations in which an H-
1B nonimmigrant worker applies to change status to another nonimmigrant 
classification but is faced with a lengthy adjudication, DHS should 
permit the worker to enter a requested start date for the new 
classification on the Application to Extend/Change Nonimmigrant Status 
(Form I-539). The commenter also asked DHS to clarify where on the form 
the beneficiary should list the date on which his or her H-1B period of 
admission ends.
    Response. This issue will not be addressed in this final rule, as 
it outside the scope of this rulemaking. This rule does not concern 
questions relating to how individuals seeking to change status from the 
H-1B classification to other nonimmigrant classification may complete 
forms to account for delays in processing. DHS may consider this 
comment in future policy guidance or rulemaking. DHS also notes that 
applicants requesting a change of status through the filing of a 
current version of Form I-539 with USCIS may provide a future change of 
status effective date. See Form I-539 (version 04/06/15), Application 
to Extend/Change Nonimmigrant Status, Part 2, Question 2.
iii. AC21 Section 104(c)--Per Country Limitations
    Comment. One commenter recommended that DHS change its longstanding 
policy of granting extensions of H-1B status in 3-year increments under 
section 104(c) of AC21 for H-1B nonimmigrant workers who are the 
beneficiaries of approved Form I-140 petitions. That commenter 
requested that DHS instead grant extensions to cover the entire period 
during which such workers have pending applications for adjustment of 
status. The commenter believed that such a change would result in 
additional benefits, including avoiding gaps in employment 
authorization, encouraging employers to file H-1B extension petitions, 
facilitating portability, and realizing cost savings for both existing 
and new employers.
    Response. DHS declines the commenter's suggestion to grant 
extensions of H-1B status for individuals who are eligible for 
extensions of stay in H-1B status under section 104(c) of AC21 that 
would cover the entire period their applications for adjustment of 
status are pending adjudication. Although section 104(c) of AC21 
provides authorization for H-1B status beyond the general 6-year 
maximum under section 214(g)(4) of the Act for certain beneficiaries 
when the H-1B petitioner can demonstrate that an immigrant visa is not 
available to the beneficiary at the time of filing, DHS regulations, 
consistent with section 212(n) of the Act, limit H-1B petition approval 
validity period to the validity period of the corresponding DOL-
approved labor condition application. See 8 CFR 214.2(h)(9)(iii)(A)(1) 
and (h)(15)(ii)(B)(1). DOL regulations dictating H-1B labor condition 
application validity, which are not the subject of this rulemaking, 
establish an upper limit of 3 years. See 20 CFR 655.750(a)(1). 
Furthermore, the language of AC21 section 104(c) does not confer an 
automatic extension of status. An extension of up to 3 years provides a 
reasonable mechanism to ensure continued eligibility. USCIS accordingly 
grants such exemptions in increments of up to 3 years until it 
adjudicates the beneficiary's application for adjustment of status.\90\ 
See 8 CFR 214.2(h)(13)(iii)(E)(1).
---------------------------------------------------------------------------

    \90\ DHS notes that individuals may be eligible for H-1B 
extensions of stay under section 104(c) of AC21 before filing an 
application for adjustment of status, so long as a Form I-140 
petition has been approved on their behalf and they are otherwise 
eligible for the extension.
---------------------------------------------------------------------------

    Although the heading for section 104(c) refers to 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 immediately available to him or her.\91\ See AC21 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''). An H-1B petition filed under section 104(c) may 
include any time remaining within the normal 6-year period of 
authorized H-1B stay in addition to the time requested in the exemption 
request, but in no case may the approval period exceed 3 years or the 
validity period of the LCA. See 8 CFR 214.2(h)(13)(iii)(E)(5).
---------------------------------------------------------------------------

    \91\ See Neufeld May 2008 Memo, at 6, discussing DHS policy 
allowing for H-1B extensions, in a maximum of three year increments, 
until such time as the foreign national's application for adjustment 
of status has been adjudicated, despite the title of section 104(c).
---------------------------------------------------------------------------

    Comment. A few commenters requested that, for purposes of 
determining eligibility for this extension, DHS consider visa 
unavailability at the time of filing, not at the time of adjudication. 
Commenters noted that by doing so, the regulation would be more 
consistent with a plain-language reading of the statute. One commenter 
stated that such an interpretation would lead to greater efficiencies 
by increasing certainty within the process, including by allowing the 
petitioner and the beneficiary to know at the time of filing whether 
the beneficiary would qualify for the benefit sought.
    Response. DHS appreciates the comments and recognizes that the 
proposed regulatory text was not consistent with its current practice 
to evaluate visa unavailability only at the time of filing.\92\ 
Therefore, DHS has revised the regulatory text in the final rule by 
striking the phrase, ``the unavailability must exist at time of the 
petition's adjudication.'' See final 8 CFR 214.2(h)(13)(iii)(E). Thus, 
consistent with current practice, when determining whether an H-1B 
nonimmigrant worker is eligible for an extension of H-1B status under 
section 104(c), USCIS officers will continue to review the Visa 
Bulletin that was in effect at the time of filing of the Form I-129 
petition. If the Visa Bulletin in effect on the date the H-1B petition 
is filed shows that the foreign worker was subject to a per country or 
worldwide visa limitation in accordance with the foreign worker's 
immigrant visa ``priority date,'' the H-1B extension request under 
section 104(c) may be granted.
---------------------------------------------------------------------------

    \92\ See USCIS Memorandum from Donald Neufeld, ``Supplemental 
Guidance Relating to Processing Forms I-140 Employment-Based 
Immigrant Petitions and I-129 H-1B Petitions, and Form I-485 
Adjustment Applications Affected by the American Competitiveness in 
the Twenty-First Century Act of 2000 (AC21) (Pub. L. 106-313), as 
amended, and the American Competitiveness and Workforce Improvement 
Act of 1998 (ACWIA), Title IV of Div. C. of Public Law 105-277'' 
(May 30, 2008).
---------------------------------------------------------------------------

    Comment. One commenter requested that DHS clarify that the per-
country limitation applies to beneficiaries of approved Form I-140 
petitions who are ineligible for an immigrant visa either because the 
``per country'' limit for their country has been reached or because the 
``worldwide'' limit on immigrant visas in the EB-1, EB-2, and EB-3 
categories has been reached. See 8 CFR 214.2(h)(13)(iii)(E). The 
commenter

[[Page 82452]]

noted that such an action would be consistent with current policy as 
expressed in USCIS's Neufeld May 2008 Memo, which clarified that both 
``per country limitations'' and ``worldwide'' unavailability of 
immigrant visas can serve as the basis for extension under section 
104(c).\93\
---------------------------------------------------------------------------

    \93\ Neufeld May 2008 memo, at 6.
---------------------------------------------------------------------------

    Response. DHS agrees with the commenter that the per-country 
limitation exemption applies to all beneficiaries of approved Form I-
140 petitions whose priority dates are on or after the applicable cut-
off date in either the country-specific or worldwide columns of the 
Visa Bulletin chart. These beneficiaries may apply for an extension 
under 8 CFR 214.2(h)(13)(iii)(E), consistent with longstanding policy. 
The reference to ``per country limitations'' in section 104(c) invokes 
chargeability: The determination as to which country's numerical limits 
the beneficiary's visa will be ``charged to'' or counted against. See 
INA 202(b), 8 U.S.C. 1152(b). For purposes of section 104(c), when 
reviewing the relevant Visa Bulletin chart, there is no difference 
between nationals of countries who are identified separately on the 
Visa Bulletin because their applicable per-country limitation has been 
exceeded (i.e., nationals of India, China, or Mexico), and nationals of 
those countries who are grouped under the ``All Chargeability'' column, 
as long as the priority date has not been reached for the particular 
beneficiary in question.
iv. Spousal Eligibility for H-1B Extensions Beyond Six Years Under AC21
    Comment. Several commenters objected to proposed 8 CFR 
214.2(h)(13)(iii)(E)(6) and (h)(13)(iii)(D)(6), which would limit H-1B 
extensions under sections 104(c) and 106(a) of AC21 to principal 
beneficiaries of permanent labor certification applications or Form I-
140 petitions, as applicable. Some commenters requested that 8 CFR 
214.2(h)(13)(iii)(E)(6) and (h)(13)(iii)(D)(6) be stricken from the 
final rule entirely, asserting that DHS's alleged overly narrow reading 
of sections 104(c) and 106(a) would: Conflict with Congress's 
determination that family members are ``entitled to the same status'' 
as the principal beneficiary of an immigrant visa petition; create an 
unnecessary burden on some dependent spouses by forcing them to obtain 
a change of status to H-4 nonimmigrant status before an employment 
authorization application based on their H-4 status can be adjudicated 
(see 8 CFR 214.2(h)(9)(iv) and 274a.12(c)(26)); possibly create 
uncertainty and long gaps in employment eligibility; impede the efforts 
by some universities to recruit and retain the most high-skilled 
individuals for positions that are often hard to fill; and prevent U.S. 
employers from benefiting from the talent of both spouses.
    Some commenters asked DHS only to revise the provision concerning 
extensions under section 104(c), such that a spouse who is in H-1B 
nonimmigrant status could benefit from his or her spouse's certified 
labor certification or approved Form I-140 petition as the basis for an 
H-1B extension under section 104(c). One commenter stated that section 
106(a) of AC21 may be used as a basis to allow an H-1B nonimmigrant 
worker to seek a 1-year extension of H-1B status beyond 6 years when 
his or her spouse, who is also an H-1B nonimmigrant worker, is the 
beneficiary of an appropriately filed permanent labor certification 
application.
    Response. DHS disagrees with the commenters' statements and is not 
adopting any of the suggested changes. In the final rule, DHS is 
formalizing longstanding DHS policy, without change, that requires a 
foreign worker seeking an extension of H-1B status to independently 
meet the requirements for such an extension.\94\ See 8 CFR 
214.2(h)(13)(iii)(D)(9) and (h)(13)(iii)(E)(6). DHS believes this 
policy best fulfills Congress's intent in enacting AC21. The 
legislation expressly allows H-1B nonimmigrant status beyond the 6-year 
general limitation for ``the beneficiary of a petition filed under 
Sec.  204(a) of [the INA] for a preference status under paragraph (1), 
(2), or (3) of Sec.  203(b) [of the INA].'' AC21 104(c). Section 203(b) 
of the INA, in turn, applies to principal beneficiaries of Form I-140 
petitions, but not derivative beneficiaries who are separately 
addressed in section 203(d) of the INA. DHS concludes that the 
reference to a single beneficiary in section 104(c) of AC21 reasonably 
supports an interpretation that the provision applies only to the 
principal beneficiary of the Form I-140 petition.
---------------------------------------------------------------------------

    \94\ See USCIS Memorandum from Donald Neufeld, '' Supplemental 
Guidance Relating to Processing Forms I-140 Employment-Based 
Immigrant Petitions and I-129 H-1B Petitions, and Form I-485 
Adjustment Applications Affected by the American Competitiveness in 
the Twenty-First Century Act of 2000 (AC21) (Pub. L. 106-313), as 
amended, and the American Competitiveness and Workforce Improvement 
Act of 1998 (ACWIA), Title IV of Div. C. of Public Law 105-277'' at 
6 (May 30, 2008), available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2008/ac21_30may08.pdf.
---------------------------------------------------------------------------

    Similarly, section 106(a) clearly states that the exemption is 
available for any H-1B beneficiary on whose behalf an immigrant 
petition or labor certification has been filed. As amended, that 
section states in pertinent part: ``The limitation contained in section 
214(g)(4) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(4)) 
with respect to the duration of authorized stay shall not apply to any 
nonimmigrant alien previously issued a visa or otherwise provided 
nonimmigrant status under section 101(a)(15)(H)(i)(b) of such Act (8 
U.S.C. 1101(a)(15)(H)(i)(b)), if 365 days or more have elapsed since 
the filing of any of the following: (1) Any application for labor 
certification under section 212(a)(5)(A) of such Act (8 U.S.C. 
1182(a)(5)(A)), in a case in which certification is required or used by 
the alien to obtain status under section 203(b) of such Act (8 U.S.C. 
1153(b)). (2) A petition described in section 204(b) of such Act (8 
U.S.C. 1154(b)) to accord the alien a status under section 203(b) of 
such Act.''
    As with section 104(c), DHS also interprets the reference to 
``section 203(b)'' in section 106(a) to apply to principal 
beneficiaries of Form I-140 petitions, but not derivative beneficiaries 
who are separately addressed in section 203(d) of the INA, which 
provides that family members may be accorded the same immigrant visa 
preference allocation as the principal beneficiary.
    DHS notes, however, that derivative beneficiaries may be eligible 
for an independent grant of work authorization in accordance with 8 CFR 
214.2(h)(9)(iv) and 274a.12(c)(26). Those regulations extend 
eligibility for employment authorization to certain H-4 dependent 
spouses of H-1B nonimmigrant workers who are seeking LPR status, 
including H-1B nonimmigrant workers who are the principal beneficiaries 
of an approved Form I-140 petition or who have had their H-1B status 
extended under section 106(a) and (b) of AC21. Accordingly, DHS is not 
revising its longstanding policy to address the commenters' suggestion.

L. Whistleblower Protections in the H-1B Nonimmigrant Program

1. Description of Final Rule and Changes From NPRM
    In this final rule, DHS enhances worker protection by providing 
whistleblower protections in cases of retaliation by the worker's 
employer. The final rule provides that a qualifying employer seeking an 
extension of stay

[[Page 82453]]

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 based on a report regarding a violation 
of the employer's LCA obligations. See final 8 CFR 214.2(h)(20). 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). Finally, DHS makes a technical change to 8 CFR 214.2(h)(20), 
fixing the reference to the labor ``condition'' application.
2. Public Comments and Responses
    Comment. Several commenters supported the provisions in the 
proposed rule regarding the protection of whistleblowers in the H-1B 
nonimmigrant program. The commenters believe that the regulatory text 
will enhance the likelihood that H-1B nonimmigrant workers will report 
employer violations and misconduct. One commenter, however, opposed the 
proposed codification of the ACWIA whistleblower protections in 8 CFR 
214.2(h)(20), unless the phrase ``the beneficiary faced retaliatory 
action'' was amended to read, ``the beneficiary suffered from 
retaliatory action described in 8 U.S.C. 1182(n)(2)(C)(iv).'' The 
commenter reasoned that the statutory provision provides a precise 
definition of retaliatory action and that, without a more precise 
definition in the regulation, DHS would create arbitrary incentives for 
H-1B nonimmigrant workers to abuse the whistleblower process as a 
shortcut to obtaining lawful permanent residence.
    Response. DHS appreciates the commenters' support for inclusion of 
the whistleblower protections in the final rule. DHS also believes the 
regulatory text is sufficiently clear and is not adopting the suggested 
change to the text at 8 CFR 214.2(h)(20). DHS notes that INA 
212(n)(2)(C)(iv) and (v) require DHS and DOL to devise a process for 
protecting individuals who file complaints about their employers' 
retaliatory actions, but the statutory provisions do not require such 
individuals to demonstrate that they have suffered as a result of such 
actions. Therefore, DHS believes that adopting the commenter's 
suggestion would be unduly restrictive. Moreover, DHS notes that the 
whistleblower provision does not provide a shortcut, or even a path, to 
lawful permanent residence status as asserted by the commenter.
    Comment. One commenter expressed concern about the provision in the 
proposed rule that requires new employers to present DHS with the DOL 
complaint and evidence of retaliatory action. The commenter believed 
that provision may infringe on the worker's privacy and discourage the 
worker from taking advantage of the whistleblower protection. The 
commenter recommended that such workers be provided the option of 
providing documentary evidence in a sealed envelope with the H-1B 
petition, or in some other way that protects his or her privacy.
    Response. While DHS appreciates the commenter's concerns regarding 
the privacy of whistleblowers, DHS has a fundamental interest in the 
integrity of the information and documentary evidence submitted as part 
of a nonimmigrant visa petition. Under 8 CFR 103.2(a)(2), the 
petitioner must ensure the credibility of such evidence. If the 
beneficiary of an H-1B petition were allowed to provide sealed evidence 
of which the petitioner may have no knowledge, then the petitioner 
would not be able to certify the veracity of such evidence in 
compliance with 8 CFR 103.2(a)(2). Moreover, because DHS did not 
propose to revise 8 CFR 103.2(a)(2) in the NPRM to allow for the 
proposed provision of sealed evidence by a beneficiary, DHS is unable 
to provide a regulatory accommodation to modify those requirements in 
this final rule. However, DHS will consider ways to address the 
concerns raised by the commenter in the future. In addition, DHS notes 
that the regulations do not preclude petitioners from working with 
beneficiaries of H-1B petitions to acquire and submit the requisite 
documentary evidence in a manner that would protect the beneficiaries' 
privacy.
    Comment. One commenter requested that workers who have exceeded the 
maximum period of stay in H-1B status be allowed to apply for 
whistleblower protection. The commenter believed that by the time some 
workers become aware of employer violations, they may no longer be in 
status.
    Response. The final rule allows for credible documentary evidence 
to be provided, in support of a petition seeking an extension of H-1B 
stay or change of status to another classification, indicating that the 
beneficiary faced retaliatory action from his or her employer based on 
the reporting of a violation of the employer's labor condition 
application obligations under section 212(n)(2)(C)(iv) of the INA. 
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 
248.1(b). These provisions allow DHS to take into account that the 
employee may no longer be in valid H-1B status at the time the new H-1B 
petition is submitted to DHS. However, this provision does not allow 
the beneficiary to stay beyond the maximum (generally, 6-year) period 
of stay for an H-1B nonimmigrant workers, unless otherwise eligible.
    Comment. One commenter requested that DHS clarify the types of 
employment considered appropriate for whistleblowers when ``seeking 
appropriate employment.'' See INA 212(n)(2)(C)(iv). The commenter 
further recommended that the H-1B nonimmigrant worker should be 
permitted to work in another position that is within the occupational 
classification of the LCA filed on his or her behalf by the petitioning 
employer.
    Response. DHS notes that the final rule does not restrict the types 
of jobs or occupational classifications that whistleblowers may seek; 
however, a beneficiary seeking employment in such circumstances must be 
granted the appropriate work authorization to work for a new employer.
    Comment. One commenter requested that DHS expand upon the types of 
documentary evidence the Department would accept to establish 
violations of employer LCA obligations. The commenter stated that 
acceptable forms of evidence should be broadened to include other 
relevant documents, such as an employment offer, prevailing wage 
confirmation letter, and ETA Form 9089, even if the worker has not 
filed a complaint against the employer.
    Response. Section 212(n)(2)(C)(v) of the INA requires the Secretary 
of Labor and the Secretary of Homeland Security to devise a process 
under which an H-1B nonimmigrant worker may file a complaint regarding 
a violation of clause (iv), which prohibits employers from 
intimidating, threatening, restraining, coercing, blacklisting, 
discharging, or in any other manner discriminating against an employee 
as retaliation for whistleblowing. Under that section, an H-1B 
nonimmigrant worker who 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

[[Page 82454]]

H-1B classification. See INA section 212(n)(2)(C)(v), 8 U.S.C. 
1182(n)(2)(C)(v). In addition, DHS has not limited the scope of 
credible evidence that may be included to document an employer 
violation. Rather, DHS generally requests credible documentary evidence 
indicating that the beneficiary faced retaliatory action from his or 
her employer due to a report regarding a violation of the employer's 
LCA obligations.
    Comment. One commenter requested that the final rule include a 
provision granting employment authorization to an H-1B nonimmigrant 
worker who faces retaliatory action due to employer violations of LCA 
obligations, and his or her spouse and eligible dependents, in order to 
help defray the financial costs resulting from such violations.
    Response. There is no express independent employment authorization 
for an H-1B nonimmigrant worker who faces retaliatory action due to 
employer violations of LCA obligations. However, under provisions in 
the rule, an H-1B nonimmigrant worker facing employer retaliation, 
along with his or her dependents, may benefit from the grace period of 
up to 60 days during which the worker could extend or change status. 
Alternatively, if the H-1B nonimmigrant worker is the beneficiary of a 
qualifying and approved employment-based immigrant visa petition, the 
worker may obtain employment authorization in compelling circumstances 
pursuant to 8 CFR 204.5(p), if otherwise eligible.
    Comment. One commenter requested that DHS institute specific 
penalties against employers that are proven to have violated statutory 
requirements related to the H-1B program, particularly when those 
violations may have caused H-1B nonimmigrant workers to lose their H-1B 
status.
    Response. DHS notes that the INA already provides penalties for 
employers that violate statutory requirements regarding H-1B 
compliance. Those penalties are listed in section 212(n)(2)(C) of the 
INA.
    Comment. One commenter requested that DHS provide 30-day grace 
periods to H-1B nonimmigrant workers who experience involuntary 
termination. The commenter noted that a 30-day grace period would help 
such workers due to the considerable time it may take to gather 
credible evidence of retaliation and seek new employment.
    Response. The final rule provides H-1B nonimmigrants, among others, 
a grace period during each 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 8 CFR 
214.1(l)(2). Therefore, DHS does not believe it is necessary to add a 
specific provision to the regulations that gives a shorter grace period 
to H-1B nonimmigrants who may have been the victims of employer 
retaliation. DHS believes that the 60-day grace period allows certain 
high-skilled workers facing a sudden or unexpected end to their 
employment sufficient time to seek new employment, seek a change of 
status to a different nonimmigrant classification, or make preparations 
for departure from the United States.
    Comment. One commenter requested that the debarment provisions in 
the H-1B program should be revised to strengthen whistleblower 
protections. The commenter stated that current H-1B debarment 
regulations fail to protect the existing workforce when violations are 
found, thus inadvertently penalizing the H-1B nonimmigrant workers 
themselves by making it impossible for them to renew their visas once 
their employers are debarred. The commenter further stated that the 
rule should include provisions to exempt the existing workforce from 
being affected by employer debarment or to make H-1B nonimmigrant 
workers whose employers are debarred automatically eligible for other 
forms of relief, such as deferred action or independent EADs.
    Response. DHS does not believe it is necessary to revise 8 CFR 
214.2(h)(20) to address the commenter's concerns, as various types of 
relief are available to these workers under this rule. For example, H-
1B nonimmigrant workers of employers who are subsequently debarred from 
the H-1B program may be eligible to use the 60-day grace period 
afforded by this rule to seek new employment, seek a change of status 
to a different nonimmigrant classification, or make preparations for 
departure from the United States. Moreover, these workers may be 
eligible to apply for a compelling circumstances EAD.
    Comment. One commenter noted that INA 212(n)(2)(C) requires DHS to 
establish a process for H-1B nonimmigrant workers to file complaints 
with DOL regarding illegal retaliation. The commenter encouraged DHS to 
coordinate this process with DOJ's Office of Special Counsel for 
Immigration-Related Unfair Employment Practices (OSC) and argued that 
creating a streamlined, consistent reporting mechanism for 
whistleblowers would promote integrity in the enforcement process.
    Response. DHS believes that the commenter is referencing INA 
212(n)(2)(c)(v), which requires DOL and DHS to devise a process to 
ensure H-1B nonimmigrants who file whistleblower complaints are able to 
seek continued employment in the United States in H-1B status or under 
other nonimmigrant classifications, if otherwise eligible. USCIS has 
implemented this statute by excusing an individual's failure to 
maintain H-1B status if there is credible evidence that the failure was 
due to employer retaliation. In this final rule, DHS is codifying this 
practice under new 8 CFR 214.2(h)(20), the provision addressing 
retaliatory action claims. Under that provision, USCIS may permit 
individuals who face retaliatory action from an employer based on a 
report regarding violations of the employer's LCA obligations, as 
described in section 212(n)(2)(C)(iv) of the Act, and whose loss or 
failure to maintain H-1B status relates to the employer violation, to 
extend their stay in H-1B status or change status to another 
classification. DHS currently collaborates with its interagency 
partners on matters of shared statutory responsibility and will 
continue to seek ways to enhance such collaboration in the future.

M. Haitian Refugee Immigrant Fairness Act of 1998

1. Changes to DHS HRIFA Regulations
    DHS did not receive public comments regarding the proposed changes 
to the 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. 2681-538-542 (codified as amended at 8 U.S.C. 1255 note (2006)). 
Therefore, DHS is retaining these changes as proposed. Under the final 
rule, DHS will be required to issue an EAD, rather than an interim EAD, 
within the timeframes currently provided in 8 CFR 245.15(n)(2). 
Additionally, HRIFA-based applicants for adjustment of status are 
eligible for the automatic 180-day extension of expiring EADs, provided 
they file a timely request for renewal. See final 8 CFR 245.15(n)(2).

N. Application for Employment Authorization

1. Description of Final Rule and Changes From NPRM
    In this final rule, DHS is adopting with minimal changes the NPRM's 
proposed regulatory text to update 8 CFR 274a.13 governing the 
processing of Applications for Employment Authorization (Forms I-765) 
and is also changing its policy concerning how early USCIS will accept 
renewal applications in the same employment

[[Page 82455]]

category (by allowing, except when impracticable, filings up to 180 
days before expiration). First, DHS is modifying the changes to 8 CFR 
274a.13(a) proposed in the NPRM by adding a provision indicating that 
USCIS may announce through its Web site, in addition to form 
instructions, which employment categories may file EAD applications 
concurrently with underlying benefit requests. Second, as proposed, DHS 
is eliminating the regulatory provision at current 8 CFR 274a.13(d) 
that directs USCIS to adjudicate Forms I-765 within 90 days of filing 
and that requires interim employment authorization documents to be 
issued if the adjudication is not completed within the 90-day 
timeframe.\95\ Third, to help prevent gaps in employment authorization, 
DHS is providing for the automatic extension of expiring EADs (and 
underlying employment authorization, if applicable) for up to 180 days 
with respect to individuals who are seeking renewal of their EADs (and, 
if applicable, employment authorization) based on the same employment 
authorization categories under which they were granted. For a renewal 
applicant who is a Temporary Protected Status (TPS) beneficiary or 
individual approved for TPS ``temporary treatment benefits,'' \96\ the 
renewal application can indicate an employment authorization category 
based on either 8 CFR 274a.12(a)(12) or (c)(19). In addition to the 
employment category requirement, the renewal applicant must continue to 
be employment authorized incident to status beyond the expiration of 
the EAD or be applying for renewal under a category that does not first 
require adjudication of an underlying benefit application, petition, or 
request. The rule clarifies that this requirement applies to 
individuals granted TPS described in 8 CFR 274a.12(a)(12) and pending 
applicants for TPS issued EADs under 8 CFR 274a.12(c)(19). The final 
rule requires, as proposed, that qualifying applicants file their 
renewal applications timely (i.e., prior to the expiration of their 
EADs) for the automatic EAD extension to apply.\97\ However, this rule 
clarifies that for renewal applications based on TPS, the automatic EAD 
extension provision will apply to individuals who file during the re-
registration period described in the Federal Register notice applicable 
to their country's TPS designation, even if they file after their EADs 
are facially expired. This final rule is making this clarification 
because, in limited cases, the re-registration period may extend beyond 
the EAD validity period.
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    \95\ Excepted from the 90-day processing requirement in 8 CFR 
274a.13(d)), prior to its elimination in this rulemaking, are the 
following classes of aliens: Applicants for asylum described in 8 
CFR 274a.12(c)(8); certain H-4 nonimmigrant spouses of H-1B 
nonimmigrants; and applicants for adjustment of status applying 
under the Haitian Refugee Immigrant Fairness Act of 1998 (HRIFA). 
Application processing for asylum applicants is governed by current 
8 CFR 274a.13(a)(2) and does not include provisions for interim 
employment authorization documentation. The employment authorization 
of applicants for adjustment of status under HRIFA is governed by 8 
CFR 245.15(n). The provision at 8 CFR 274a.13(d) also exempts 
applicants for adjustment of status 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 Nicaraguan 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.
    \96\ Individuals approved for TPS ``temporary treatment 
benefits'' includes those who obtain employment authorization based 
on prima facie eligibility for TPS during adjudication of their TPS 
applications. See INA 244(a)(4), 8 U.S.C. 1254a(a)(4); 8 CFR 244.5, 
244.10(e).
    \97\ This final rule also adopts, with clarifying changes, the 
provisions related to the new automatic EAD extension provision, 
including that: An EAD that is automatically extended will continue 
to be subject to any limitations and conditions that applied before 
the extension (see final 8 CFR 274a.13(d)(2)); although the validity 
of the expiring EAD will be extended for up to 180 days, such 
validity will be automatically terminated upon the issuance of a 
notification of denial of the renewal application (see final 8 CFR 
274a.13(d)(3)); and automatic extensions may also be terminated 
before the renewal application is adjudicated either through written 
notice to the applicant, or a notice to a class of aliens published 
in the Federal Register, or any other applicable authority (see 
final 8 CFR 274a.13(d)(3)).))
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    DHS listed 15 employment categories in the Supplementary 
Information to the NPRM that meet the regulatory criteria.\98\ DHS 
reaffirms the list of 15 employment eligibility categories as 
qualifying for automatic EAD/employment authorization extensions under 
this final rule.\99\ USCIS will

[[Page 82456]]

maintain, and update as necessary, the list of qualifying employment 
categories on its Web site.
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    \98\ In the NRPM, DHS listed 15 employment authorization 
categories under which renewal applicants would be able to receive 
automatic EAD extensions. Note that this list corrects an error in 
the NPRM wherein DHS failed to include Palau among the list of 
nations specified in the eligible employment category based on 8 CFR 
274a.12(a)(8). As corrected, the list of 15 employment authorization 
categories 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, the 
Marshall Islands, or Palau under agreements between the United 
States and those nations (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) (see 8 CFR 
274a.12(a)(12) and (c)(19)); 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 under 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 of status pursuant to section 1104 
of the LIFE Act (see 8 CFR 274a.12(c)(24)); and 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).
    \99\ The TPS-related employment authorization categories, 8 CFR 
274a.12(a)(12) and (c)(19), are included in the list of categories 
that are eligible for the automatic 180-day EAD extension. The 
category based on 8 CFR 274a.12(a)(12) denotes that the EAD is for 
employment authorization based on a grant of TPS. The category based 
on 8 CFR 274a.12(c)(19) denotes that the EAD is for employment 
authorization for a TPS applicant who is prima facie eligible for 
TPS based on a pending TPS application. EADs are considered 
``temporary treatment benefits'' when provided to such pending TPS 
applicants. See 8 CFR 244.5, 244.10(e). If TPS is granted before the 
expiration date on the individual's EAD based on 8 CFR 
274a.12(c)(19), USCIS usually allows the individual to continue 
using that EAD until it expires and does not issue an 8 CFR 
274a.12(a)(12)-based EAD for a TPS beneficiary until the individual 
requests an EAD during the next TPS re-registration period for the 
individual's country. If the relevant TPS country designation is 
extended, the re-registration process is published in the Federal 
Register and includes instructions on filing to show continued 
maintenance of TPS eligibility and to renew work authorization 
documentation. In the past, there have been some very limited 
circumstances where the designated filing period extended beyond the 
existing EAD validity date. Therefore, an applicant who files an 
application to renew his or her EAD may receive an automatic 
extension under this rule, as long as the application is filed 
during the designated TPS re-registration filing period in the TPS 
Federal Register notice, even where that period may extend beyond 
the current EAD validity date. Additionally, because the 8 CFR 
274a.12(a)(12) and (c)(19) eligibility categories both relate to 
TPS, the applicant may benefit from the automatic 180-day extension 
as long as the receipt notice for the EAD renewal application and 
the facially expired card in the applicant's possession bear either 
of these two eligibility categories, but they do not need to match 
each other. Therefore, if an individual has an EAD bearing the 8 CFR 
274a.12(c)(19) eligibility category, but has since received TPS and 
is applying for a renewal under the 8 CFR 274a.12(a)(12) eligibility 
category, he or she would still get the benefit of the automatic 
180-day extension under this rule.
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    Current DHS policy allows EAD renewal applications submitted under 
certain categories to be filed up to 120 days before the applicant's 
current EAD expires. In response to the comments received requesting 
additional time for advance filing, DHS will adopt a filing policy that 
will generally permit the filing of an EAD renewal application up to 
180 days before the current EAD expires, except when impracticable. 
This filing policy will be posted on the USCIS Web site and will take 
into consideration any other regulatory provisions that might require a 
longer or shorter filing window depending on the specific renewal EAD 
employment category.
    The measures DHS is taking in this final rule will 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-
resistant documents.
2. Public Comments and Responses
i. Adjudication Timeframes for Initial and Renewal Applications of 
Employment Authorization
    Comment. Many commenters disagreed with the proposal to eliminate 
the 90-day processing requirement for adjudicating EAD requests. These 
commenters expressed concerns that eliminating this requirement would 
cause gaps in employment authorization for certain foreign workers, 
lead to longer adjudication times, ultimately lead to job losses, and 
cause hardship for many beneficiaries. Some commenters further noted 
that delays in the adjudication of EAD applications for certain 
vulnerable populations--such as crime victims, victims of domestic and 
other gender-based violence--could place them in even more desperate 
situations. Another commenter stated that the fee associated with the 
90-day adjudication provides a ``social contract'' that ensures that 
USCIS will timely adjudicate requests and prevent delays that could 
harm the employment prospects of applicants.
    Response. DHS carefully considered these concerns, but disagrees 
with the assertion that eliminating the 90-day processing time for 
Applications for Employment Authorization (Forms I-765) from the 
regulations will cause gaps in employment, undue hardship, job losses, 
or longer adjudication times. DHS believes that, regardless of the 
imposition of a fee, Forms I-765 must be adjudicated within reasonable 
timeframes. Although DHS is eliminating the 90-day processing timeframe 
for Forms I-765 from the regulatory text, USCIS continues to be 
committed to the processing goals it has established for Form I-765. 
Many renewal applicants who may have benefitted from the 90-day 
timeframe for Form I-765 will now be able to benefit from this rule's 
provision regarding automatic EAD extensions for up to 180 days for 
certain employment categories. DHS anticipates that the automatic EAD 
extension will ensure continued employment authorization for many 
renewal applicants and prevent any work disruptions for both the 
applicants and their employers.
    Eliminating the 90-day EAD processing timeframe will also support 
USCIS's existing practice regarding concurrent filing of EAD 
applications based on underlying immigration benefits. For example, 
although victims of domestic violence can receive their initial EADs 
only after USCIS adjudicates the underlying victim-based benefit 
request, USCIS allows the concurrent filing of the Form I-765 with the 
underlying victim-based benefit request so that such victims receive 
EADs expeditiously following a grant of the benefit request. See Form 
I-765 form instructions, at page 7 (instructions for self-petitioners 
under the Violence Against Women Act (VAWA)). Before USCIS adopted this 
practice, applicants who concurrently filed a victim-based benefit 
request with a Form I-765 would have their Form I-765 denied if the 
underlying benefit was not adjudicated within 90 days of filing. USCIS 
issued such denials on the ground that the applicant was not yet 
eligible to receive an EAD because the underlying benefit request was 
still pending. Removal of the 90-day regulatory timeframe allows USCIS 
to not only accept Forms I-765 concurrently filed with the underlying 
victim-based benefit requests, but also permits the Form I-765 to 
remain pending until USCIS completes its adjudication of the benefit 
request. Once USCIS issues a final decision on the underlying benefit 
request that permits approval of the Form I-765, USCIS will be able to 
immediately issue a decision on the Form I-765 and produce an EAD. This 
will result in the victim-based EAD applicant receiving employment 
authorization faster than if the applicant were required to file Form 
I-765 only after receiving a grant of the underlying benefit request.
    Comment. Many commenters supported keeping the 90-day timeframe for 
adjudicating EADs in the regulations. These commenters stated that the 
regulatory timeframe provides certainty for applicants, offers a 
potential legal remedy if EADs are not delivered on time, and provides 
interim relief if adjudication deadlines are not met. Several of these 
commenters asserted that DHS's plan to publish operational policy 
guidance was an inadequate substitute for keeping the 90-day timeframe 
in the regulations, especially as it could strip applicants of legal 
protection when EAD adjudications take longer than 90 days.
    Another commenter suggested that DHS keep the 90-day adjudication 
requirement in the regulations but add limited exceptions. According to 
the commenter, these exceptions could address situations involving 
security concerns, situations in which underlying benefit applications 
or petitions are still being adjudicated, and situations involving 
operational emergencies that prevent DHS from making timely 
adjudications.
    Response. DHS disagrees that operational policy statements 
regarding the 90-day application adjudication timeframe will be 
inadequate. The public will be able to rely on USCIS's announcements 
regarding Form I-765 processing, which will reflect USCIS's up-to-date 
assessment of its operational capabilities. Applicants also will 
continue to have redress in case of adjudication delays by contacting 
USCIS. See https://www.uscis.gov/forms/tip-sheet-employment-authorization-applications-pending-more-75-days.
    DHS also declines to adopt the suggestion by commenters to retain 
the 90-day adjudication timeframe in the regulations and modify it to 
provide for exceptions, such as in cases involving security concerns. 
Applying different processing standards to certain applicants adds 
complexity to the overall management of the agency's workloads, and to 
the customer service inquiry process.
    The additional relief from processing delays that DHS is providing 
in this final rule is the new provision that automatically extends the 
validity of EADs and, if needed, employment authorization for up to 180 
days for certain applicants who timely file renewal EAD applications 
under the same eligibility category. The automatic

[[Page 82457]]

extension will only apply to such renewal applicants if their 
employment is authorized incident to status beyond the expiration of 
their current EADs or if their eligibility is not dependent on USCIS 
first adjudicating an underlying immigration benefit.
ii. Earlier Filing for EAD Renewals
    Comment. Several commenters asked DHS to permit the filing of a 
renewal EAD application up to 180 days in advance of the expiration of 
the applicant's current EAD. These commenters noted that DHS currently 
will not accept a renewal EAD application that is filed more than 120 
days prior to the expiration date. They suggested that by permitting 
earlier filing, renewal applicants who are not eligible for the 
automatic 180-day extension will have a greater chance of having their 
applications adjudicated before their EADs expire and thus avoid a gap 
in employment authorization. One commenter also stated that a longer 
filing window would better align with the current Form I-129 filing 
window for H-1B and L-1 nonimmigrants, allowing nonimmigrant workers 
(and dependents eligible to apply for EADs) to concurrently apply for 
extensions of stay and employment authorization. Moreover, commenters 
stated that allowing applications to be submitted further in advance 
would benefit DHS by affording it more time to manage its workload, and 
alleviate concerns about its ability to process all Forms I-765 within 
90 days.
    Response. DHS strongly encourages eligible individuals to file 
renewal EAD applications (Forms I-765) sufficiently in advance of the 
expiration of their EADs to reduce the possibility of gaps in 
employment authorization and EAD validity. DHS appreciates commenters' 
desire to avoid such gaps and agrees with commenters that modifying the 
filing policy to allow Forms I-765 to be filed earlier is a reasonable 
solution. Therefore, DHS is adopting a flexible filing policy to permit 
the filing of a renewal EAD application as early as 180 days in advance 
of the expiration of the applicant's current EAD.\100\ USCIS will 
permit the 180-day advance filing policy when practicable, taking into 
account workload, resources, filing surges, processing times, and 
specific regulatory provisions that mandate specific filing windows. 
DHS will continue to monitor the current filing conditions of Form I-
765 applications and will set the filing time period for renewal EAD 
applications as appropriate. USCIS will post filing time periods for 
renewal EAD applications on its Web site.
---------------------------------------------------------------------------

    \100\ Current USCIS policy allows early filing up to 120 days in 
advance.
---------------------------------------------------------------------------

iii. Concurrent Filings
    Comment. One commenter suggested allowing applicants to file for 
EADs concurrently with related benefit requests (e.g., a nonimmigrant 
visa petition or an application for adjustment of status). Although 
this is currently allowed to the extent permitted by the form 
instructions or as announced on the USCIS Web site, this commenter 
stated that form instructions rarely specify when an EAD may be filed 
concurrently with another petition, and also stated that forms should 
not be a substitute for the law when determining when a benefit can be 
requested. For example, the commenter noted that instructions have not 
been updated for the Application to Extend/Change Nonimmigrant Status 
(Form I-539) to state that some H-4 dependent spouses are now eligible 
for EADs. The commenter recommended amending the provision to allow 
concurrent filings to the extent permitted by law, rather than only as 
provided in form instructions.
    Response. This rule provides general authority for allowing Forms 
I-765 to be concurrently filed with other benefit requests where 
eligibility for employment is contingent upon a grant of the underlying 
benefit request. See final 8 CFR 274a.13(a). It is not possible to 
allow concurrent filing across all eligible categories. For example, an 
asylum applicant cannot apply for work authorization until the 
completed asylum application has been pending for at least 150 days. 
See 8 CFR 208.7(a). By establishing regulatory authority for USCIS to 
permit concurrent filing when appropriate, this rule provides USCIS 
with the flexibility necessary to decide when concurrent filing is 
feasible based on existing operational considerations that take into 
account the particular circumstances of different underlying 
immigration benefits. Such decisions on filing procedures are 
appropriately placed in instructional materials rather than the 
regulations. Therefore, while DHS disagrees with the commenter that 
this more specific information should be included in the regulations, 
DHS agrees that locating up-to-date information regarding the 
availability of concurrent filing for particular eligibility categories 
can be challenging for the public. DHS has determined that, in addition 
to the form instructions proposed in the NPRM, a convenient and useful 
location to announce concurrent filing information is on the USCIS Web 
site. Accordingly, DHS is revising the regulatory text at 8 CFR 
274a.13(a) in this final rule to include Web site announcements related 
to the concurrent filing of Forms I-765. Placing information regarding 
the availability of concurrent filings on USCIS's Web site will enable 
DHS to more efficiently make updates, particularly as the 
transformation to electronic processing occurs in the future.\101\ 
USCIS also will continue posting guidance in other public engagement 
materials regarding concurrent filings.\102\ Applicants should consult 
the appropriate form instructions or the USCIS Web site to determine 
whether they may file their Form I-765 concurrently with their 
underlying benefit request.
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    \101\ Over the next several years, USCIS will continue rolling 
out a secure, customer-friendly online account system that will 
enable and encourage customers to submit benefit requests and 
supporting documents electronically. This Web-based system will 
greatly simplify the process of applying for immigration benefits. 
It will assign new customers a unique account which will enable them 
to access case status information, respond to USCIS requests for 
additional information, update certain personal information, and 
receive timely decisions and other communications from USCIS. For 
more information, see https://www.uscis.gov/about-us/directorates-and-program-offices/office-transformation-coordination.
    \102\ See, e.g., FAQs for employment authorization for certain 
H-4 Spouses https://www.uscis.gov/working-united-states/temporary-workers/faqs-employment-authorization-certain-h-4-dependent-spouses 
and https://www.uscis.gov/i-539-addresses. USCIS also posts 
information on its Web site regarding concurrent filing for 
individuals seeking lawful permanent residence. The Web page can be 
found at https://www.uscis.gov/green-card/green-card-processes-and-procedures/concurrent-filing.
---------------------------------------------------------------------------

    Regarding the example raised by the commenter, the Form I-539 
instructions do not address issues of employment authorization. Rather, 
the Form I-539 instructions outline who is eligible to apply for an 
extension of stay or change of nonimmigrant status. However, the 
current version of the Form I-765 instructions clearly state that some 
H-4 nonimmigrant spouses of H-1B nonimmigrant workers are eligible for 
employment authorization and may also be able to concurrently file 
their Form I-765 with Form I-539. DHS also currently permits such H-4 
nonimmigrant spouses seeking an extension of stay to file Form I-539 
concurrently with a Petition for a Nonimmigrant Worker (Form I-129) 
seeking an extension of stay on behalf of the H-1B nonimmigrant worker. 
This provides several efficiencies, as continued H-4 status of the 
dependent spouse is based on the adjudication of the H-1B nonimmigrant 
worker's Form I-129 petition and both forms may be processed at the 
same USCIS location. By posting concurrent filing instructions in form 
instructions or on the USCIS

[[Page 82458]]

Web site, DHS can better address such complicated adjudication 
processes.
    With respect to the Form I-765, DHS will post on the USCIS Web site 
a list of the categories of applicants who may file their Forms I-765 
concurrently with their underlying eligibility requests. By posting 
this type of comprehensive information on the USCIS Web site, 
applicants will have up-to-date information on filing procedures.
iv. Potential Gaps in Employment Authorization
    Comment. Some commenters stated that the elimination of the 90-day 
processing timeframe may cause beneficiaries uncertainty and stress, 
and deter some individuals from traveling to their home countries. 
Commenters also expressed concerns about accruing unlawful presence 
while waiting for their EADs, which might affect their eligibility for 
future immigration benefits. Finally, commenters opposed eliminating 
the 90-day provision by noting that employers may refrain from hiring 
foreign workers, or even lay off foreign workers, who do not have a 
current EAD in order to avoid the risk of fines imposed by ICE.
    Response. DHS does not believe that eliminating the 90-day EAD 
processing timeframe from the regulation will lead to the issues raised 
by commenters, except in rare instances. DHS plans to maintain current 
processing timeframes and will continue to post that information on its 
Web site.\103\ Consistent with current protocols, applicants not 
covered by the automatic 180-day extension of employment authorization 
will continue to be able to call the National Customer Service Center 
(NCSC) if their application is pending for 75 days or more to request 
priority processing. Applicants covered by the 180-day automatic 
extension will be permitted to contact the NCSC if their application is 
still pending at day 165 of the auto-extension to request priority 
processing. For those cases that are not fit for adjudication within 
current processing timeframes, DHS does not believe that employment 
authorization should be granted, and EADs issued, before eligibility is 
determined.
---------------------------------------------------------------------------

    \103\ See current USCIS processing timeframes at https://egov.uscis.gov/cris/processTimesDisplayInit.do.
---------------------------------------------------------------------------

    To avoid potential gaps in employment authorization resulting from 
unexpected delays in processing, DHS is providing workable solutions in 
this final rule. As mentioned earlier in this Supplementary 
Information, USCIS is changing its recommended filing timelines and 
will accept renewal EAD applications filed as far in advance as 180 
days from the expiration date of the current EAD. The extent of the 
advance filing window will depend on operational considerations. 
Affected stakeholders can, and are strongly encouraged to, reduce any 
potential gaps in employment authorization or employment authorization 
documentation by filing Forms I-765 well enough in advance of the 
expiration dates on their current EADs.
    Further, DHS is providing automatic 180-day extensions of some EADs 
to renewal applicants within certain employment eligibility categories 
upon the timely filing of applications to renew their EADs.\104\ This 
provision significantly mitigates the risk of gaps in employment 
authorization and required documentation for eligible individuals. In 
addition, the provision will provide consistency for employers, as the 
extension period is similar to that which already is used in other 
contexts. For example, DHS typically provides automatic 180-day 
extensions of EADs to TPS beneficiaries when the registration period 
does not provide sufficient time for TPS beneficiaries to receive 
renewal EADs.\105\ DHS regulations also provide certain F-1 
nonimmigrant students seeking extensions of STEM 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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    \104\ ``Timely filed'' for purposes of renewal applicants filing 
TPS-based EAD applications means filed according to the applicable 
TPS country-specific Federal Register notice regarding procedures 
for obtaining EADs. In very limited cases, the filing period 
described in the Federal Register notice may extend beyond the EAD 
validity date.
    \105\ See, e.g., 80 FR 51582 (Aug. 25, 2015) (Notice auto-
extending EADs of Haitian TPS beneficiaries for 6 months).
---------------------------------------------------------------------------

    In response to concerns regarding accrual of unlawful presence, DHS 
believes that removal of the 90-day adjudication timeline from the 
regulations generally has no effect on the application of DHS's 
longstanding unlawful presence guidance. A foreign national will not 
accrue unlawful presence in the United States if he or she is deemed to 
be in an authorized period of stay. Neither the mere pendency of a Form 
I-765 application nor the receipt of an EAD generally determines 
whether an individual is in an authorized period of stay for purposes 
of accrual of unlawful presence. DHS has described circumstances deemed 
to be ``authorized periods of stay'' in policy guidance.\106\
---------------------------------------------------------------------------

    \106\ See Neufeld May 2009 Memo.
---------------------------------------------------------------------------

    With respect to the comments regarding freedom to travel outside 
the United States, DHS is not prohibiting applicants with pending Forms 
I-765 from traveling. However, DHS's longstanding policy is that if an 
applicant travels outside of the United States without a valid visa or 
other travel document while he or she has a pending change of status 
application, DHS considers the applicant to have abandoned that 
application.\107\ Moreover, although applicants may travel abroad, they 
must have a valid visa or other travel document that allows them to 
return to the United States. An EAD, by itself, does not authorize 
travel.
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    \107\ See USCIS Memorandum from Thomas Cook, ``Travel after 
filing a request for a change of nonimmigrant status'' (June 18, 
2001), available at https://www.uscis.gov/sites/default/files/files/pressrelease/Travpub.pdf.
---------------------------------------------------------------------------

    Finally, with respect to commenters' concerns that this rule will 
cause employers to refrain from hiring foreign workers or may lay off 
foreign workers to avoid potential fines imposed by ICE, DHS believes 
that the steps it has taken to minimize the possibility of gaps in 
employment authorization will satisfactorily allay these concerns. 
Employers that refuse to hire workers with 180-day extensions, or that 
terminate such workers, may be in violation of the INA's anti-
discrimination provision at section 274B, 8 U.S.C. 1324b, which 
prohibits, inter alia, discrimination based on a worker's citizenship 
status, immigration status, or national origin, including 
discriminatory documentary practices with respect to the employment 
eligibility verification (Form I-9 and E-Verify) process. Employers 
that violate the anti-discrimination provision may be subject to civil 
penalties, and victims of such discrimination may be entitled to back 
pay awards and reinstatement. For more information, visit https://www.justice.gov/crt/about/osc.
    Comment. One commenter requested that DHS add a regulatory 
provision requiring USCIS to issue a Form I-797C Notice of Action 
(receipt notice) within a certain timeframe. This commenter stated that 
such a regulatory provision would assist individuals who use Form I-
797C to ``validate'' continued employment with his or her employer or 
for state or federal agencies that rely on EADs to grant ``safety net'' 
benefits. Otherwise, according to the commenter, the value of the 
automatic EAD extension will be eviscerated.

[[Page 82459]]

    Response. DHS declines to adopt the suggestion to impose a 
regulatory issuance deadline on the Form I-797C, Notice of Action 
(receipt notice). Issuance of the receipt notice depends on highly 
variable operational realities affecting the intake process, and thus 
cannot be held to a regulatory ``processing'' timeframe. Furthermore, 
DHS notes that receipt notices are generally issued in a timely manner, 
usually two weeks.
v. Interim EADs
    Comment. Many commenters disagreed with the proposed elimination of 
the issuance of interim EADs with validity periods of up to 240 days 
when an EAD application is not adjudicated within the previously 
discussed 90-day timeframe. These commenters suggested that the lack of 
an interim EAD may result in an employer laying off a worker if his or 
her EAD application is not timely adjudicated.
    Response. DHS anticipated and addressed these concerns raised by 
commenters by providing for the automatic extension of EADs of 180 days 
for individuals who: (1) File a request for renewal of their EAD prior 
to its expiration date or during the filing period described in the 
country-specific Federal Register notice concerning procedures for 
obtaining TPS-related EADs; (2) request a renewal based on the same 
employment authorization category under which the expiring EAD was 
granted (as indicated on the face of the EAD), or on an approval for 
TPS even if the expiring EAD was issued under 8 CFR 274a.12(c)(19); 
\108\ and (3) either continue to be employment authorized incident to 
status beyond the expiration of the EAD or are applying for renewal 
under a category that does not first require the adjudication of an 
underlying benefit request. As discussed earlier, DHS had determined 
that 15 employment categories currently meet these conditions.
---------------------------------------------------------------------------

    \108\ Under 8 CFR 274a.12(c)(19), an individual applying for 
Temporary Protected Status (TPS) must apply for employment 
authorization; such authorization is not automatic or granted 
incident to status unless and until the TPS application is granted. 
EADs are issued as ``temporary treatment benefits'' to pending TPS 
applicants who are considered prima facie eligible for TPS. Such 
temporary treatment benefits remain in effect until a final decision 
has been made on the application for TPS, unless otherwise 
terminated. See 8 CFR 244.5; 8 CFR 244.10(e).
---------------------------------------------------------------------------

    DHS recognizes the possibility of gaps in employment authorization 
for renewal applicants who are not included on the list of employment 
categories eligible for automatic renewal of their EADs because they 
require adjudication of an underlying benefit request. Such individuals 
are encouraged to contact the National Customer Service Center (NCSC) 
if their application is pending for 75 days or more to request priority 
processing of their application. In order to further ensure against 
gaps in employment authorization for renewal applicants, DHS also is 
modifying its 120-day advance filing policy and will accept Forms I-765 
that are filed up to 180 days in advance of the EAD expiration date, 
except where impracticable. With this modification, DHS expects that 
the risk of gaps in employment authorization and the possibility of 
worker layoffs will be minimal.
    Comment. One commenter stated that harm would be caused by limiting 
automatic EAD extensions, but suggested that this harm could be 
ameliorated by allowing for unlimited automatic extension of work 
authorization upon the timely filing of a renewal EAD application until 
a decision is made on the application. The commenter alternatively 
suggested lengthening the extension period to 240 days to coincide with 
the validity period of interim EADs and consistent with the extension 
of employment authorization for certain nonimmigrants pursuant to 8 CFR 
274a.12(b)(20). The commenter also suggested extending the 120-day 
advance filing policy for EADs. According to the commenter, if the 
automatic extension is limited to 180 days, USCIS should accept filings 
240 days in advance of the expiration of the applicants EADs.
    Response. DHS declines to adopt the commenter's suggestions and 
retains the proposed automatic extension period of 180 days in this 
final rule. Due to fraud concerns, DHS will not provide for an 
unlimited automatic extension until USCIS issues a decision on the 
renewal application. In addition, without a date certain, employers 
would have difficulties reverifying employment authorization to comply 
with the Employment Eligibility Verification (Form I-9) requirements 
and would not have the certainty necessary to maintain a stable and 
authorized workforce.
    Regarding the commenter's suggestion to provide for a 240-day 
(rather than a 180-day) automatic extension, DHS determined that 180 
days would be more appropriate. The 180-day period should provide USCIS 
sufficient time to adjudicate Form I-765 applications, particularly 
when individuals file well ahead of the expiration of their EADs, as 
explained further below. In fact, existing regulations already contain 
a provision granting an automatic 180-day extension of EADs in certain 
instances, and that time frame has proven workable. See, e.g., 8 CFR 
274a.12(b)(6)(iv) (providing automatic 180-day EAD extensions for F-1 
nonimmigrant students who timely file requests for STEM OPT 
extensions). DHS also typically provides TPS re-registrants with 
automatic EAD extensions of 180 days.\109\ Maintaining consistency 
among rules regarding automatic EAD extensions will aid employers in 
complying with Form I-9 verification requirements, as well as other 
agencies making determinations on eligibility for the benefits they 
oversee (such as those issued by departments of motor vehicles). DHS 
acknowledges the regulatory provision granting an automatic extension 
of employment authorization for up to 240 days, as noted by the 
commenter, see 8 CFR 274a.12(b)(20), but that provision extends to 
certain classes of nonimmigrants who do not have or require an EAD. 
These classes of nonimmigrants are employment authorized for a specific 
employer incident to status. Because the adjudication of a Form I-765 
application is materially different from the adjudication of petitions 
seeking extensions of stay in these nonimmigrant classifications, the 
240-day time frame afforded to those nonimmigrants is inapposite. DHS 
believes it is more sensible that the period for automatically 
extending certain EADs based on the timely filing of renewal EAD 
applications should mirror the existing 180-day period in 8 CFR 
274a.12(b)(6), as well as DHS's policy regarding automatic extensions 
of TPS-based EADs.
---------------------------------------------------------------------------

    \109\ See, e.g., 80 FR 51582 (Aug. 25, 2015) (notice auto-
extending EADs of Haitian TPS beneficiaries for 6 months).
---------------------------------------------------------------------------

    Moreover, DHS believes that providing an automatic 240-day 
extension is unwarranted given that the typical Form I-765 processing 
time is 90 days,\110\ and DHS will be providing renewal applicants the 
opportunity to file up to 180 days in advance of the expiration of 
their EADs. Those Form I-765 application types that are taking more 
than 90 days to process are often associated with, and dependent upon, 
adjudication another underlying request such as Temporary Protected 
Status, DACA, and H-4 status. The current 120-day advance filing policy 
coupled with the 240-day interim EAD validity under current regulations 
at 8 CFR 274a.13(d) provide a total processing period of 360 days 
before an applicant may

[[Page 82460]]

experience a gap in employment authorization. Under this rule, the 180-
day advance filing policy and automatic 180-day employment 
authorization extension similarly would provide a potential processing 
period of 360 days. In addition, DHS expects that a long automatic 
extension period of 240 days without an accompanying, secure EAD would 
increase the risk of fraud or other misuse of the automatic extension 
benefit. DHS believes that this rule imposes reasonable limitations on 
automatic EAD extensions that protect against both fraud and gaps in 
employment authorization.
---------------------------------------------------------------------------

    \110\ USCIS Service Centers report that the majority of Form I-
765 applications are adjudicated within 3 months. See current USCIS 
processing timeframes at https://egov.uscis.gov/cris/processTimesDisplayInit.do (last accessed October 31, 2016).
---------------------------------------------------------------------------

    Comment. A commenter requested that DHS include an interim EAD for 
initial applications, for renewal applications in categories not 
eligible for automatic extension, and for renewal applications that 
remain pending even after the automatic 180-day extension has expired 
in order to prevent hardship that could result when people lack 
employment authorization.
    Response. DHS declines to adopt the commenter's suggestion as it 
would undermine DHS's fraud, national security, and efficiency goals. 
DHS has determined that the issuance of interim EADs does not reflect 
the operational realities of the Department, which are intended to 
promote efficiency, reduce fraud, and address threats to national 
security, such as through the adoption of improved processes and 
technological advances in document production. Authorizing an interim 
EAD for initial and renewal EAD applications whether or not eligible 
for automatic EAD extensions under this rule would be problematic 
because some applicants would receive an immigration benefit--
employment authorization--before DHS is assured that the applicant is 
eligible for that benefit through the adjudication of the underlying 
benefit request. DHS anticipates a long adjudication period will be an 
extremely rare occurrence, most likely involving an application with 
serious security concerns, in which case DHS would not grant employment 
authorization until such concerns are resolved.
    Moreover, the resources necessary to process interim EADs are 
similar to the resources necessary to issue EADs of full duration. 
Regardless of whether the EAD is for a full duration or for an interim 
period, the EAD must contain all of the same security and anti-
counterfeiting features. Maintaining this duplicative processing would 
significantly hamper USCIS's ability to maintain reasonable processing 
times.
vi. Automatic Extensions of EADs and Advance Parole
    Comment. DHS received a number of comments referencing the 
combination EAD/advance parole cards issued to applicants for 
adjustment of status. These comments requested that DHS provide 
automatic extensions for advance parole when requests for advanced 
parole are filed timely and concurrently with requests for EAD 
extensions.
    Response. DHS declines to permit automatic extensions of advance 
parole in this final rule. Advance parole is a separate adjudication 
and is wholly discretionary, determined on a case-by-case basis, and, 
therefore, DHS does not believe that it is appropriate for automatic 
extensions.
    DHS notes that if a renewal applicant with a combination EAD/
advance parole card has an urgent need to travel outside the United 
States while the employment authorization renewal application is 
pending, the applicant may request expedited adjudication of the 
concurrently filed advance parole request under USCIS's longstanding 
expedite criteria. If USCIS expedites the adjudication of the advance 
parole request and grants advance parole, the applicant will receive a 
separate advance parole authorization on Form I-512 (Authorization for 
Parole of an Alien into the United States) and a separate EAD following 
adjudication of the renewal EAD application. If the applicant does not 
receive an expedited approval of the advance parole request, then the 
applicant may receive a combination card following adjudication of both 
the EAD renewal application and parole request.
vii. H-4 Nonimmigrant Spouses
    Comment. Some commenters noted that certain H-4 nonimmigrant 
spouses of H-1B nonimmigrant workers can wait up to 9 months for an EAD 
(including time for the visa and EAD extension) and may thus experience 
gaps in employment.\111\ The commenters felt this time period was too 
long, and they stated that to avoid potential lapses in employment 
authorization such spouses should be provided the option to: (1) Obtain 
an automatic extension of their EADs, (2) file their applications for 
EAD extension at the same time as their requests for extension of their 
H-4 status, or (3) receive interim EADs.
---------------------------------------------------------------------------

    \111\ H-4 dependent spouses who may apply for employment 
authorization include certain H-4 dependent spouses of H-1B 
nonimmigrants who: Are the principal beneficiaries of an approved 
Form I-140, Immigrant Petition for Alien Worker; or have been 
granted H-1B status under sections 106(a) and (b) of the American 
Competitiveness in the Twenty-first Century Act of 2000, as amended 
by the 21st Century Department of Justice Appropriations 
Authorization Act. See 8 CFR 214.2(h)(9)(iv).
---------------------------------------------------------------------------

    Response. DHS disagrees with commenters that H-4 nonimmigrant 
spouses eligible to apply for EADs should receive automatic EAD 
extensions or interim EADs, and DHS thus declines to modify this rule 
as suggested by commenters.\112\ Consistent with the commenters' 
requests, an H-4 nonimmigrant spouse eligible for an EAD already may 
concurrently file his or her EAD application with an H-4 extension 
request (on Form I-539), even if the Form I-539 is filed with the Form 
I-129, Petition Nonimmigrant Worker, that is being filed on his or her 
spouse's behalf. However, the Form I-765 will not be adjudicated until 
the underlying benefit requests are adjudicated. See Instructions to 
Form I-765. As discussed previously, because the employment 
authorization for an H-4 nonimmigrant spouse is contingent on the 
adjudication of an underlying immigration benefit, automatically 
extending EADs to such individuals significantly increases the risk 
that EADs may be extended to ineligible individuals.
---------------------------------------------------------------------------

    \112\ DHS notes that in a separate rulemaking, commenters also 
requested automatic EAD extensions for H-4 nonimmigrant spouses who 
have requested renewal EADs. DHS declined to provide for automatic 
extensions of employment authorization for such nonimmigrants, 
because their employment authorization is contingent on the 
adjudication of an underlying benefit request. See 80 FR 10284, 
10299. This rationale equally applies to this rule.
---------------------------------------------------------------------------

    In the case of an H-4 nonimmigrant spouse filing for an extension 
of stay and renewal of employment authorization, DHS cannot be 
reasonably assured that the spouse will continue to be eligible for 
employment authorization until a full adjudication of the Form I-765 is 
conducted. Under DHS regulations, an H-4 nonimmigrant spouse is 
eligible for employment authorization if either the H-1B nonimmigrant 
worker has an approved Form I-140 petition or the spouse's current H-4 
admission or extension of stay was approved pursuant to the H-1B 
nonimmigrant worker's admission or extension of stay based on sections 
106(a) and (b) of AC21. See 8 CFR 214.2(h)(9)(iv). Thus, before 
adjudicating a Form I-765 filed by the H-4 nonimmigrant spouse, USCIS 
must first make a determination on the principal's H-1B status, because 
the spouse derives his or her status from the principal. USCIS must 
then adjudicate the H-4 nonimmigrant spouse's application for an 
extension of stay. Only after concluding these adjudications with 
respect to the H-1B

[[Page 82461]]

nonimmigrant worker and the H-4 nonimmigrant spouse, can USCIS 
adjudicate the spouse's application for a renewal EAD.
    Allowing eligible H-4 nonimmigrant spouses to file Form I-765 
concurrently with their Form I-539 extension applications (and, if 
needed, also with the Form I-129 filed on behalf of the H-1B principal) 
enables the receipt of employment authorization soon after the 
underlying immigration benefit requests are adjudicated, thereby 
significantly reducing the overall adjudication timeline for these H-4 
nonimmigrant spouses. To further ensure against gaps in employment 
authorization for H-4 nonimmigrant spouses and others, except when 
impracticable, DHS will be permitting EAD renewal applicants to file 
Forms I-765 up to 180 days prior to the expiration of their current 
EADs.
viii. F-1 Nonimmigrant Students
    Comment. A few commenters requested a 90-day processing timeframe 
for F-1 nonimmigrant students, because Forms I-765 based on optional 
practical training (OPT) do not require the submission of biometrics 
through an Application Support Center (ASC). Additionally, a commenter 
stated that eliminating the 90-day EAD processing timeframe makes it 
difficult for F-1 nonimmigrant students to secure employment because 
OPT is only authorized for 12 months. A few commenters questioned 
security checks or suggested that DHS implement new requirements for F-
1 nonimmigrant students.
    Response. DHS declines to retain the current regulatory 90-day 
processing requirement for Form I-765 filings by F-1 nonimmigrant 
students. DHS remains committed to current processing timeframes for 
all Form I-765 applicants, including F-1 nonimmigrant students. When 
making plans to secure pre-completion or post-completion OPT, F-1 
nonimmigrant students should consider the advance filing periods 
described in the regulations at 8 CFR 214.2(f)(11)(i)(B) and factor in 
Form I-765 processing times, which can be found on the USCIS Web 
site.\113\ Additionally, F-1 nonimmigrant students who timely apply for 
STEM OPT extensions are provided with automatic extensions of their 
employment authorization for up to 180 days, which provides sufficient 
flexibility in the event of unexpected delays. See 8 CFR 
274a.12(b)(6)(iv).
---------------------------------------------------------------------------

    \113\ See https://egov.uscis.gov/cris/processTimesDisplayInit.do 
for service center processing times. At present, Forms I-765 filed 
by F-1 nonimmigrants pursuant to 8 CFR 274a.12(c)(3) are processed 
in 3 months.
---------------------------------------------------------------------------

    The NPRM did not include a proposal regarding additional security 
checks for F-1 nonimmigrant students. Therefore, such changes would be 
outside the scope of this rulemaking. However, DHS notes that foreign 
nationals who apply for F-1 nonimmigrant visas undergo security checks 
before visa issuance. Additionally, USCIS conducts security checks on 
all F-1 nonimmigrant students on OPT before rendering a final decision 
on their Forms I-765. DHS may consider requiring additional security 
checks for F-1 nonimmigrant students in future rulemakings.
ix. Expanding Automatic Extensions to Additional Categories
    Comment. One commenter requested that DHS provide automatic 180-day 
extensions on all timely-filed, non-frivolous EAD extension 
applications, or in the alternative, that DHS provide automatic 
extensions to individuals in J-2 nonimmigrant status. The commenter 
reasoned that including J-2 status in the list of employment 
authorization categories that allow for automatic extension comports 
with the proposed rationale for such extensions since adjudication of 
an underlying benefit request is not needed. Another commenter urged 
DHS to grant automatic EAD extensions to L-2, F-1 OPT, and H-4 
nonimmigrants, in order to provide an incentive for employers to retain 
valued employees. More generally, some commenters recommended that DHS 
automatically extend employment authorization for all work-authorized 
applicants, including H-4 and L-2 nonimmigrants and categories of 
applicants seeking employment-authorization based on humanitarian 
circumstances, regardless of their current basis for work 
authorization, in order to prevent gaps in employment.
    Response. DHS declines to provide automatic EAD extensions (and 
employment authorization, if applicable) to eligibility categories 
beyond those listed in the Supplementary Information to the NPRM at 
this time. However, DHS may announce in the future additional 
categories of individuals eligible for such automatic extensions on the 
USCIS Web site. See final 8 CFR 274a.13(d)(1)(iii). While granting 
automatic EAD extensions to the additional nonimmigrant categories 
suggested by commenters may encourage employers to retain employees and 
minimize the risk of gaps in employment, such an expansion would 
undermine DHS's national security and fraud prevention goals, as 
described above. DHS is limiting availability of automatic EAD 
extensions in a manner that reasonably ensures that the renewal 
applicant is eligible for employment authorization, thereby minimizing 
the risk that ineligible individuals will receive immigration benefits.
    In addition, DHS disagrees with the commenter's assertion that the 
J-2 nonimmigrant category comports with the conditions stated in the 
NPRM and adopted in this final rule for automatic EAD extensions. DHS 
is limiting automatic extensions to those renewal applicants who, among 
other criteria, either continue to be employment authorized incident to 
status beyond the expiration of their EADs or are applying for renewal 
under a category that does not first require the adjudication of an 
underlying benefit request. J-2 nonimmigrants do not fit within the 
regulatory criteria because they must first receive approvals of their 
underlying requests for extension of J-2 nonimmigrant stay before they 
are eligible for employment authorization. The same is true with 
respect to the suggestion to expand the automatic extension provision 
to L-2, F-1 OPT, and H-4 nonimmigrants. Renewal of employment 
authorization for such nonimmigrants is dependent on the prior 
adjudication of underlying benefit requests. DHS cannot be reasonably 
assured these classes of individuals will remain eligible for 
employment authorization until full adjudication of the Form I-765 
application is complete. L-2 nonimmigrants, for example, include both 
spouses and dependent children of L-1 nonimmigrants. However, only L-2 
nonimmigrant spouses are eligible for employment authorization. USCIS 
must adjudicate the Form I-765 application to determine the applicant's 
valid L-2 nonimmigrant status, the L-1 principal's current nonimmigrant 
status, and evidence of the marital relationship. For F-1 OPT 
nonimmigrants, USCIS must determine whether the F-1 nonimmigrant 
student has obtained a Form I-20 A-B/I-20ID, Certificate of Eligibility 
of Nonimmigrant F-1 Student Status, endorsed by his or her Designated 
School Official within the past 30 days. If the applicant is an F-1 
nonimmigrant student seeking STEM OPT, USCIS must examine the student's 
degree and determine whether the student's employer is an E-Verify 
employer, among other requirements. If the applicant is an F-1 
nonimmigrant student seeking off-campus employment under the 
sponsorship of a qualifying

[[Page 82462]]

international organization, USCIS must review the international 
organization's letter of certification along with the timely endorsed 
Form I-20.\114\ DHS has similarly addressed this issue with respect to 
H-4 nonimmigrants elsewhere in this Supplementary Information. DHS does 
not agree that the list of categories eligible for automatic EAD 
extensions should be expanded to include these additional categories at 
this time.
---------------------------------------------------------------------------

    \114\ See 8 CFR 214.2(f)(9)-(11).
---------------------------------------------------------------------------

x. State Driver's License Issues
    Comment. Several commenters noted that they cannot obtain or renew 
a driver's license without a valid visa or EAD, and if this rule 
results in longer waits for EADs, it would delay their ability to 
obtain a driver's license, thereby interrupting their daily routines. 
One commenter recommended granting EADs for longer periods in order to 
closely align with state driver license renewal periods. An individual 
commenter suggested that DHS notify all state departments of motor 
vehicles (DMVs) so that the DMVs can update their current license 
issuance policies to account for automatic extensions of EADs. This 
commenter also asked DHS to provide a list of documentary evidence that 
can be presented to DMV officials to establish that a renewal EAD 
application was timely filed and that employment authorization was 
automatically extended.
    Response. DHS remains committed to current processing timeframes 
and expects to adjudicate Form I-765 applications within 90 days. 
Regarding the commenter's request for documentary evidence, DHS 
generally issues applicants a Notice of Action (Form I-797C) within two 
weeks of filing a renewal EAD application. An individual may choose to 
present the Form I-797C to a DMV, depending on state DMV rules, in 
combination with his or her expired EAD that has been automatically 
extended pursuant to this rule.\115\ The combination of the qualifying 
Form I-797C and expired EAD is the equivalent of an unexpired EAD for 
purposes of this rule. See final 8 CFR 274a.13(d)(4). USCIS will 
provide guidance to stakeholders, including DMVs, on its Web site to 
help clarify the provisions regarding automatically extended EADs as 
established by this rule. However, comments related to individual state 
driver's license requirements are outside the scope of this rulemaking.
---------------------------------------------------------------------------

    \115\ Depending on filing volume, USCIS may take longer than 2 
weeks to issue Notices of Action (Forms I-797C).
---------------------------------------------------------------------------

xi. Form I-9 and Automatic Extensions of EADs
    Comment. One commenter suggested updating the instructions for Form 
I-9 and the M-274 Handbook (Handbook for Employers: Guidance for 
Completing Form I-9 (Employment Eligibility Verification Form)) to 
include automatic extensions of EADs. This commenter also asked that 
DHS place stickers on EAD cards during biometrics appointments to 
indicate automatic extensions, which would serve as evidence of ongoing 
employment authorization and maintenance of status, and thus reduce 
confusion during the I-9 process.
    Response. DHS has determined that it is not necessary to amend the 
Form I-9 instructions to include information regarding automatic 
extensions of EADs because this rule does not change the list of 
acceptable documents for Form I-9 purposes. In addition, DHS believes 
that such detailed information regarding the automatic extension of 
EADs is better placed in guidance materials. DHS will update all 
relevant public guidance materials on I-9 Central \116\ concurrently 
with the publication of this final rule. DHS also intends to include 
information regarding the automatic extension of EADs along with other 
comprehensive revisions to the M-274 Handbook for Employers that are 
currently underway.
---------------------------------------------------------------------------

    \116\ See https://www.uscis.gov/i-9-central.
---------------------------------------------------------------------------

    DHS declines to place stickers on EADs at biometrics appointments 
for several reasons. Most EAD renewal applicants are not requested to 
appear for biometrics appointments. In addition, DHS has determined 
that considering the wide variety of affected categories and the number 
of potential extensions involved, providing extension stickers poses 
security concerns and is not economical or operationally feasible.
xii. National Security and Fraud Concerns
    Comment. Some commenters criticized DHS's national security 
concerns and fraud prevention rationales as insufficient to support an 
elimination of the regulatory 90-day EAD processing timeframe, 
especially as DHS had not provided any data related to fraud or abuse 
in the program. These commenters further stated that DHS's security 
rationale did not explain why issuance of an interim EAD could not be 
based on a USCIS-issued fee receipt showing that Form I-765 had been 
pending for 90 days, given that USCIS routinely issues temporary Form 
I-551 stamps in foreign passports upon presentation of a Form I-90 fee 
receipt. Commenters faulted DHS for describing operational realities as 
a compelling reason to eliminate the interim EAD option, especially in 
light of a number of non-secure forms currently being submitted in some 
circumstances. Commenters suggested that the Form I-797C receipt could 
be designated an acceptable employment authorization document under 
current 8 CFR 274a.13(d), given that USCIS has been willing to issue a 
number of non-secure forms of employment authorization to some 
applicants.
    Response. To support the Department's vital mission of securing the 
nation from the many threats it faces, DHS has determined that the 
elimination of both the 90-day EAD processing timeframe and the 
issuance of interim EADs from current regulations is necessary. This 
change at final 8 CFR 274a.13(d) reflects DHS's continued attention to 
security and commitment to improving adjudication processes, including 
technological advances in document production, to reduce fraud and 
address threats to national security.
    The main security and fraud risks underpinning DHS's decision to 
remove the 90-day EAD adjudication timeline and interim EAD 
requirements flow from granting interim EADs to individuals before DHS 
is sufficiently assured of their eligibility and before background and 
security checks have been completed. DHS believes that any reduction in 
the level of eligibility and security vetting before issuing evidence 
of employment authorization, whether on an interim basis or otherwise, 
would both be contrary to its core mission and undermine the security, 
quality, and integrity of the documents issued.
    In addition, the 90-day timeline and interim EAD requirements would 
hamper DHS's ability to implement effective security improvements in 
cases in which those improvements could extend adjudications in certain 
cases beyond 90 days. Given the inherent fraud and national security 
concerns that flow from granting immigration benefits (including EADs) 
to individuals prior to determining eligibility, DHS believes that the 
90-day timeframe and interim EAD provisions at current 8 CFR 274a.13(d) 
do not provide sufficient flexibility for DHS to enforce and administer 
the immigration laws while enhancing homeland security.
    Moreover, retaining the interim EAD provision would continue to 
fundamentally undermine overall

[[Page 82463]]

operational efficiencies to the detriment of all applicants for 
employment authorization. In keeping with DHS secure document issuance 
policies, implementation of the interim EAD provision calls for DHS to 
issue tamper-resistant Form I-766 EADs.\117\ Issuance of interim Forms 
I-766 requires the same resources as the issuance of full-duration 
Forms I-766, because both cards must be produced using the same 
operational processes at the same secure, centralized card production 
facility. Elimination of this costly and duplicative process is 
necessary to better ensure that sufficient resources are dedicated to 
adjudicating requests for employment authorization, rather than being 
diverted to monitoring the 90-day adjudication timelines and producing 
both interim EADs and full-duration EADs. In so doing, DHS believes 
that the EAD adjudication process will be more efficient and EAD 
processing timelines will decrease overall.
---------------------------------------------------------------------------

    \117\ See USCIS Memorandum from Michael Aytes,''Elimination of 
Form I-688B, Employment Authorization Card'' (Aug. 18, 2006).
---------------------------------------------------------------------------

    DHS rejects commenters' suggestions to designate alternate interim 
documents that do not evidence employment authorization or contain 
sufficient security features, such as the Form I-797C receipt notice, 
in lieu of EADs. For decades, Congress, legacy INS, and DHS have been 
concerned about the prevalence of fraudulent documents that could be 
presented to employers to obtain unauthorized employment in the United 
States. To address these concerns, Congress passed the Illegal 
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 
Pub. L. 104-208, which strengthened the requirements for secure 
documentation used in the employment eligibility verification 
process.\118\ Legacy INS, for its part, also took steps to reduce the 
number of insecure documents in circulation. For example, as described 
in the NPRM, legacy INS created the new, counterfeit-resistant Form I-
766, which is produced at a centralized secure location, to replace the 
significantly less secure Form I-688B, which was produced at local 
offices and was easily counterfeited. In addition, legacy INS and DHS 
have sought to eliminate the issuance of ad hoc or otherwise insecure 
documents that could be used by individuals as temporary evidence of 
employment authorization. To reintroduce the issuance of ad hoc or 
insecure documents to evidence employment authorization in this rule 
would be a step backwards from DHS's goals in this area.
---------------------------------------------------------------------------

    \118\ See Conference Report on H.R. 2202, Illegal Immigration 
Reform and Immigrant Responsibility Act of 1996, 142 Cong. Rec. 
H11071-02 (Sept. 25, 1996).
---------------------------------------------------------------------------

    The instances in which DHS issues temporary documentation concern 
lawful permanent residents and, therefore, are distinguishable.\119\ 
First, temporary documentation is only issued to lawful permanent 
residents after they are admitted in that immigration status. Second, 
USCIS verifies an individual's identity and status before issuing 
temporary evidence of lawful permanent resident status. Such 
verification may include inputting fingerprint and photograph 
information into the Customer Profile Management System-IDENTity 
Verification Tool (CPMS-IVT).\120\
---------------------------------------------------------------------------

    \119\ Generally, a temporary Form I-551 (Permanent Resident 
Card) consists of either a Form I-551 stamp in the lawful permanent 
resident's foreign passport or a Form I-551 stamp on Form I-94 that 
also contains the lawful permanent resident's photograph.
    \120\ CPMS-IVT is a Web-based application that processes, 
displays and retrieves biometric and biographic data from DHS's 
fingerprint identity system, the Automated Biometric Identification 
System (IDENT). For more information, visit USCIS's Web site at 
https://www.uscis.gov/news/alerts/uscis-implement-customer-identity-verification-field-offices.
---------------------------------------------------------------------------

    While DHS strongly believes that it is necessary to eliminate the 
90-day adjudication timeline and the requirement to issue interim EADs, 
the Department understands the need for temporary employment 
authorization in cases involving application processing delays. For 
this reason, this rule authorizes automatic extensions of employment 
authorization, but only for defined classes of individuals. First, DHS 
is limiting the automatic extension of EADs (and employment 
authorization, if applicable) to certain renewal applicants, rather 
than initial filers. As previously mentioned, this limitation meets 
DHS's policy to issue EADs to only those individuals who have been 
determined eligible. Second, to further protect the integrity of the 
immigration process, DHS is requiring that renewal applications be 
based on the same employment authorization category as that indicated 
on the expiring EAD, with the narrow exception of TPS beneficiaries, as 
described earlier. See final 8 CFR 274a.13(d)(1)(ii). Because the 
resulting Form I-797C indicates the employment authorization category 
cited in the application, this requirement helps to ensure, both to DHS 
and to employers that such a notice was issued in response to a timely 
filed renewal application. Third, automatic extensions are restricted 
to individuals who continue to be employment authorized incident to 
status beyond the expiration that is annotated on the face of their 
EADs or who are seeking to renew employment authorization in a category 
in which eligibility for such renewal is not dependent on a USCIS 
adjudication of an underlying benefit request. See 8 final CFR 
274a.13(d)(1)(iii). This provision helps to ensure that individuals are 
eligible to receive automatic extensions of their EADs under this rule 
only if there is reasonable assurance of their continued eligibility 
for issuance of a full duration EAD.
xiii. Separate Rulemaking for the Elimination of the EAD 90-Day 
Processing Timeframe
    Comment. Some commenters stated that the proposal to eliminate the 
90-day rule must be promulgated through a separate rulemaking so that 
the public has proper notice and opportunity to comment. These 
commenters suggested that DHS intentionally buried the elimination of 
this provision at the end of a lengthy NPRM that in most other respects 
seeks to ease the burdens on the employment of qualified nonimmigrant 
and immigrant workers. According to commenters, some businesses and 
individuals may not realize that this rule contains a provision that 
will adversely affect them.
    Response. DHS disagrees that the elimination of the 90-day 
processing timeframe for EADs merits or requires its own rulemaking. 
The public was given proper notice of the proposed policy in this 
rulemaking, and the proposal was fully described in the Summary 
paragraph at the beginning of the NPRM. The thousands of commenters 
that submitted feedback on this specific issue is evidence that the 
public had an opportunity to comment, and in fact did comment, on this 
issue.
xiv. Requests for Premium Processing
    Comment. Several commenters asked USCIS to offer premium processing 
for Forms I-765, with some individuals asking the fee to be set at a 
reasonable level. One commenter also requested that premium processing 
be available for travel document requests.
    Response. In order to balance workloads and resources in a way that 
ensures timely customer service across all product lines, DHS will not 
offer premium processing of Form I-765 applications or travel document 
requests at this time. DHS declines to adopt this suggestion, but may 
reconsider it in the future if resources permit.

[[Page 82464]]

O. Employment Authorization and Reverification on Form I-9

1. Description of Final Rule and Changes From NPRM
    Employers are required to verify the identity and employment 
authorization of all individuals they hire for employment on Form I-9. 
For those individuals whose employment authorization or EADs expire, 
employers must reverify employment authorization at the time of 
expiration. DHS is finalizing the changes related to the Form I-9 
verification process as proposed, with the exception of minor, 
technical revisions, in order to conform to the new automatic 
employment authorization provision established by this rule.\121\ See 
final 8 CFR 274a.2(b)(1)(vii). In addition, this rule finalizes the 
proposal providing that a facially expired EAD is considered unexpired 
for Form I-9 purposes if it is used in combination with a Notice of 
Action (Form I-797C, or successor form) indicating the timely filing of 
the application to renew the EAD (provided the Form I-797C lists the 
same employment authorization category as that listed on the expiring 
or expired EAD, except in the case of TPS beneficiaries, and has been 
automatically extended under this rule). See final 8 CFR 274a.13(d)(4). 
Newly hired employees completing Forms I-9 may choose to present their 
employers with this document combination to show both identity and 
employment authorization.\122\ When the expiration date on the face of 
an EAD previously used for the Form I-9 is reached, a renewal applicant 
whose EAD has been automatically extended under this rule and who is 
continuing in his or her employment with the same employer should, 
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. The need for reverification of employment 
authorization is not triggered until the expiration of the additional 
period of validity granted through the automatic extension provisions 
discussed above. See final 8 CFR 274a.2(b)(1)(vii).
---------------------------------------------------------------------------

    \121\ The technical changes include changing the cross reference 
in the regulatory text from ``Sec.  274a.13(d)'' to ``8 CFR 
274a.13(d)'' in two places, and moving the parenthesis so that the 
reference to the Notice of Action form number reads, ``(Form I-
797).'' In addition, this rule replaces ``alien'' with 
``individual'' in keeping with the terminology of the paragraph.
    \122\ An automatically extended EAD in combination with the 
Notice of Action, Form I-797C, described in this rule constitute an 
unexpired EAD (Form I-766) under List A for Form I-9 purposes. See 
revised 8 CFR 274a.13(d)(4); 8 CFR 274a.2(b)(1)(v)(A)(4).
---------------------------------------------------------------------------

2. Public Comments and Responses
i. Reverification
    Comment. Several commenters expressed a concern that the proposed 
automatic extension of EADs will confuse the Form I-9 reverification 
process because employers will have no way to know, without the help of 
immigration attorneys, if a renewal application was filed under the 
same category as the individual's current EAD, and thus no way to know 
if the automatic extension applies. A commenter also suggested updating 
the Form I-9 instructions and M-274 Handbook for Employers to reflect 
the automatic extensions of EADs.
    Response. DHS believes that the reverification process is fairly 
straightforward and can be completed without the assistance of an 
attorney. Employers will know whether an EAD has been automatically 
extended under this rule by checking whether the eligibility category 
stated on the individual's current EAD is the same as the eligibility 
category stated on the individual's Form I-797C receipt notice,\123\ 
and whether the EAD renewal category is listed on the USCIS Web site as 
a qualifying category for automatic EAD extensions. The Notice of 
Action receipt (Form I-797C) that USCIS issues to an applicant who 
files a Form I-765 application contains the EAD eligibility category. 
The EAD currently in the employee's possession, combined with a receipt 
notice for a timely filed EAD application under the same eligibility 
category, is evidence of employment authorization for Form I-9 
purposes.
---------------------------------------------------------------------------

    \123\ This rule provides an exception for a TPS beneficiary 
whose EAD may not match the eligibility category on the receipt 
notice.
---------------------------------------------------------------------------

    DHS is taking additional steps to minimize potential confusion 
among employers. DHS will engage in public outreach in connection with 
this rule. USCIS will update the Form I-797C receipt notices to include 
information about automatic extensions of employment authorization 
based on renewal applications and to direct applicants to the USCIS Web 
site for more information about qualifying employment categories. USCIS 
will also update the I-9 Central Web page on its Web site to provide 
guidance to employers regarding automatically extended EADs and proper 
completion of Form I-9. DHS intends to include this information in a 
future revision to the M-274 Handbook for Employers. Because DHS did 
not propose changes to the Form I-9 instructions to add information 
regarding automatic extensions of EADs in the proposed rule, DHS is 
unable to add this information to the form instructions in the final 
rule. DHS may consider such an addition in a future revision of the 
Form I-9 instructions under the PRA process.
ii. Use of Form I-9 To Change Employment Authorization Categories
    Comment. Several commenters suggested that DHS allow foreign 
workers in H nonimmigrant status who are eligible for employment 
authorization based on compelling circumstances to ``change status'' by 
filling out Form I-9 and using the EAD issued based on compelling 
circumstances as evidence of employment authorization.
    Response. DHS was unable to discern the commenters' specific 
concerns. However, DHS believes that the discussion below will 
alleviate any confusion about the Form I-9 process in these 
circumstances. Employers are responsible for proper completion and 
retention of Form I-9. See INA 274A(b), 8 U.S.C. 1324a(b). DHS does not 
use the Form I-9 process as a vehicle for workers to change their 
immigration status. Requests for EADs must be made on a separate form, 
currently the Application for Employment Authorization, Form I-765. The 
Form I-9 of an individual employed as an H-1B nonimmigrant who also 
receives an EAD while maintaining H-1B nonimmigrant status does not 
need to be updated merely based upon the individual's receipt of the 
EAD. If an H-1B nonimmigrant worker who also has been issued an EAD 
based on compelling circumstances obtains employment with a non-H-1B 
employer, then the individual may present his or her EAD to the non-H-
1B employer to comply with the Form I-9 requirements, rather than 
presenting evidence based on the H-1B nonimmigrant status.
iii. Comments Suggesting Additional Revisions
    Comment. A commenter suggested that DHS amend 8 CFR 274a.12(a) and 
Form I-9 to confirm that foreign nationals authorized for employment 
incident to status do not need to obtain an EAD. The commenter argued 
that the requirement in this regulatory provision to obtain an EAD 
effectively nullifies the portion of the provision that provides for 
employment authorization incident to status. The commenter noted that 
the suggested clarification would be even more important if the 90-day 
adjudication rule is eliminated.

[[Page 82465]]

    Response. The suggested amendments to both 8 CFR 274a.12(a) and 
Form I-9 are beyond the scope of this rulemaking. Contrary to the 
commenter's statement, the part of 8 CFR 274a.12(a) that requires 
affected individuals to obtain an EAD does not nullify such 
individuals' employment authorization incident to status. Rather, the 
provision lists certain categories of foreign nationals whose 
employment authorization must be evidenced by an EAD. Workers within 
the listed categories are employment authorized incident to status 
independent of their receipt of an EAD or other evidence of employment 
authorization.
    Comment. A commenter recommended updating the M-274 Handbook for 
Employers to permit Form I-9 verification of H-1B nonimmigrant workers 
whose Form I-129 petition seeking an extension of status or change of 
employer was filed during the 10-day or 60-day grace periods.
    Response. The current M-274 Handbook for Employers contains 
information regarding Form I-9 completion for H-1B nonimmigrant workers 
who extend their stay with the same employer or who seek a change of 
employers. See M-274, Handbook for Employers, page 22. This guidance 
applies to those H-1B nonimmigrant workers whose petitions are filed 
during the 10-day or 60-day grace periods. While this rule does not 
change that guidance, DHS will consider whether additional 
clarifications are necessary to the M-274 Handbook for Employers and 
other guidance materials, such as USCIS's I-9 Central Web page.
    Comment. A commenter suggested, as an alternative to eliminating 
the regulatory provisions establishing the 90-day processing timeframe 
and the issuance of interim EADs, that the regulation instead be 
amended for Form I-9 purposes to require foreign workers to present to 
their employers List B identification documentation along with a Form 
I-797C receipt notice issued by USCIS to acknowledge the filing of a 
Form I-765 application. In the alternative, the commenter suggested 
that USCIS amend the Form I-9 instructions to require employers to 
confirm the pendency of the Form I-765 application by checking the 
USCIS Web site for case status information and annotating the Form I-9 
accordingly.
    Response. DHS declines to adopt the commenter's suggestions. The 
Form I-9 process mandates that employees present their employers with 
evidence of current employment authorization and identity. See 8 CFR 
274a.2(b)(1)(v). A Form I-797C receipt for the filing of a Form I-765 
application, standing on its own, does not establish employment 
authorization except when the filing was to replace a lost, stolen, or 
damaged EAD.\124\ It is merely evidence that an application was filed 
with USCIS and, therefore, would not be sufficient to satisfy the Form 
I-9 requirements. For the reasons stated in the proposed rule, 
extending employment authorization to categories in which DHS lacks 
reasonable assurance of continued eligibility for employment 
authorization raises fraud and national security risks that DHS is 
striving to avoid. Regarding the suggestion by the commenter to require 
employers to check the case status of an employee's Form I-765 
application, DHS believes that such a requirement raises privacy 
concerns and would introduce changes to the verification process that 
are beyond the scope of this rulemaking.
---------------------------------------------------------------------------

    \124\ 8 CFR 274a.2(b)(1)(vi)(A) provides that when a worker 
shows a Form I-797C receipt for the filing of a Form I-765 
application to replace a lost, stolen, or damaged EAD, this type of 
Form I-797C is considered a receipt for a Form I-9 List A document 
evidencing identity and employment authorization valid for 90 days.
---------------------------------------------------------------------------

P. Other Comments

    DHS received a number of comments related to matters falling 
outside the topics discussed above. These comments are addressed below.
1. Procedural Aspects of the Rulemaking
    Comment. Some commenters submitted feedback about general 
immigration issues. A few commenters expressed support for, or 
opposition to, general immigration to the United States. Comments 
ranged from requesting that DHS discontinue immigration to the United 
States, to underscoring the need for comprehensive immigration reform, 
to general support for immigration.
    Response. DHS is charged with administering the immigration laws 
enacted by Congress. Only Congress can change those laws. The comments 
described immediately above are therefore outside the scope of this 
rulemaking. DHS, however, is committed to strengthening the security 
and integrity of the immigration system through efficient and 
consistent adjudications of benefits, fraud detection, and enhanced 
customer service. DHS promotes flexible and sound immigration policies 
and programs as well as immigrant participation in American civic 
culture.
    Comment. Several commenters objected to the ability of non-U.S. 
citizens to submit comments on the proposed rule.
    Response. DHS welcomed comments from all interested parties without 
regard to citizenship or nationality. This approach is consistent with 
the statutory requirements established by Congress in the APA's notice-
and-comment provision, which do not include a citizenship or 
nationality requirement and place priority on allowing all interested 
persons to participate in rulemaking proceedings.
2. Assertions That the Employment-Based Immigration System Enables 
Slavery and Servitude to Employers
    Comment. DHS received numerous comments referencing the alleged 
slavery, servitude, or bondage of nonimmigrant workers in the United 
States. A number of commenters stated that the nonimmigrant visa and 
adjustment processes are tantamount to modern slavery or bonded labor, 
and that employers exploit and abuse workers subject to these 
processes. Other commenters stated that employers do not allow 
nonimmigrant workers to have a say in working conditions, leave, and 
other benefits.
    Response. DHS takes allegations of worker slavery, bondage, and 
exploitation very seriously. There are statutes and regulations 
governing the terms and conditions of nonimmigrant employment that are 
intended for the protection of both U.S. and nonimmigrant workers. 
Commenters and nonimmigrant workers who believe they are being 
exploited by employers have a number of options to report misconduct. 
Those suffering abuse or exploitation are encouraged to immediately 
contact their local police department. DHS has created the Blue 
Campaign to combat human trafficking and aid victims. More information 
about the Blue Campaign can be found at www.dhs.gov/blue-campaign. 
Federal law also prohibits discrimination based on citizenship status, 
immigration status, national origin, and other protected 
characteristics. The Department of Justice's Office of Special Counsel 
for Immigration-Related Unfair Employment Practices enforces the anti-
discrimination provision of the INA, which prohibits discrimination in 
hiring, firing, recruitment and referral for a fee, as well as 
discriminatory documentary practices in the employment eligibility 
verification (Form I-9 and E-Verify), based on citizenship, immigration 
status, or national origin. See INA section 274B; 8 U.S.C. 1324b. More 
information about reporting an immigration-related unfair employment 
practice may be found at www.justice.gov/crt/office-special-counsel-
immigration-related-unfair-

[[Page 82466]]

employment-practices. The U.S. Equal Employment Opportunity Commission 
(EEOC) enforces Title VII of the Civil Rights Act of 1964 (Title VII), 
as amended, and other federal laws that prohibit employment 
discrimination based on race, color, national origin, religion, sex, 
age, disability and genetic information. More information about Title 
VII and the EEOC may be found at www.eeoc.gov. DHS also notes that 
DOL's Wage and Hour Division investigates allegations of employee 
abuse. Information about reporting a potential wage and hour violation 
can be found at www.dol.gov or by calling 1-866-4USWAGE (1-866-487-
9243).
    In addition, this rule enhances worker whistleblower protection by 
conforming regulations governing the H-1B program to certain policies 
and practices developed to implement the ACWIA amendments to the INA. 
See final 8 CFR 214.2(h)(20). Section 413 of ACWIA amended the INA by 
adding section 212(n)(2)(C), which 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 212(n)(2)(C)(iv), 8 U.S.C. 1182(n)(2)(C)(iv). 
Thus, employers may not intimidate, threaten, restrain, coerce, 
blacklist, discharge, or in any other manner discriminate against an 
employee for disclosing information that the employee reasonably 
believes evidences a violation of 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) of the INA 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.'' See INA 212(n)(2)(C)(v), 8 U.S.C. 1182(n)(2)(C)(v). 
This final rule formalizes DHS's current policy regarding these 
protections, as described above. See final 8 CFR 214.2(h)(20).
    Through this final rule, DHS also provides flexibility to certain 
nonimmigrants with approved Form I-140 petitions who face compelling 
circumstances that warrant an independent grant of employment 
authorization. See final 8 CFR 204.5(p)(1). Such compelling 
circumstances may, depending on the circumstances, include employer 
retaliation.
    Comment. Commenters also stated that employers are effectively in 
control of the lives of nonimmigrant workers. These commenters stated 
that if a nonimmigrant worker is fired or laid off by an employer, that 
worker is then faced with having to quickly find new employment or to 
return to his or her home country. According to commenters, this 
dynamic has created a sense of dependency on the employer, and the 
resulting uncertainty causes many nonimmigrant workers to be unwilling 
to purchase homes and make other long-term life investments in the 
United States.
    Response. DHS is sympathetic to these comments. Through this final 
rule, DHS seeks to enhance worker mobility and ease the burdens 
nonimmigrant workers face when employment ends, either voluntarily or 
as a result of being laid off or terminated. DHS makes a grace period 
available to certain high-skilled nonimmigrant classifications (H-1B, 
H-1B1, O-1, E-1, E-2, E-3, L-1, and TN classifications) whose work 
ceases for up to 60 consecutive days during each period of petition 
validity (or other authorized validity period). See final 8 CFR 
214.1(l)(2). The final rule also extends grace periods to dependents of 
eligible principal nonimmigrant workers. Id. The purpose of the 60-day 
grace period is to enable the nonimmigrant workers to seek new 
nonimmigrant employment and thus be able to extend or change their 
nonimmigrant status while remaining in the United States, should their 
employment conclude during the relevant validity period.
    Comment. Some commenters explained that it is difficult for workers 
who have already received an approved Form I-140 petition with one 
employer to find a new employer who is willing to restart the immigrant 
visa petition process. Because of visa backlogs and country quotas, 
many nonimmigrants must wait years before they are eligible to adjust 
status to lawful permanent residence, and some commenters argued that 
the difficulty of the process has led workers to remain in the same job 
for years without promotions or salary increases. Commenters stated 
that the inability of nonimmigrant workers to accept promotions and to 
advance their careers has created a sense of hopelessness and a lack of 
motivation to grow skills.
    Response. DHS is sympathetic to these comments and believes that 
this rule includes many provisions, as discussed more fully throughout 
the preamble, that will facilitate workers' ability to change jobs 
while waiting for immigrant visa availability, including the following: 
Expanded priority date retention, changes to the automatic revocation 
process, clarification on INA 204(j) portability, and the discretionary 
provision authorizing independent work authorization to beneficiaries 
who demonstrate compelling circumstances. See final 8 CFR 204.5(e)(1), 
(2) and (p); and 205.1(a)(3)(iii)(C) and (D). Additionally, individuals 
with approved Form I-140 petitions who are in H-1B nonimmigrant status 
may benefit from the H-1B portability provisions at final 8 CFR 
214.2(h)(2)(i)(H).
3. Limits on Employment-Based Immigration by Country
    Comment. Several commenters suggested that the per-country limits 
on available immigrant visas disproportionately discriminate against 
individuals from India, China, the Philippines, and Mexico. Some 
commenters stated that the system should be changed so that the number 
of available immigrant visas would be proportionate to the percentage 
of individuals from India and China working as professionals in the 
United States on H-1B visas. Commenters noted that the per-country 
limits fail to account for high population countries with larger 
numbers of well-educated and high-skilled professionals given that 
smaller countries have the same percentage of visas available to them. 
One commenter suggested that the per-country limits are not compatible 
with the equitable concept of responding to applicants on a first-come, 
first-served basis. Several commenters suggested that DHS increase the 
number of available immigrant visas or remove the per-country limits 
completely, both to speed up processing times and to lessen the adverse 
impact on Indian and Chinese nationals. Another commenter stated that 
the per-country limits are illogical, unfair and unpredictable, causing 
individuals from India and China to suffer unfairly. One commenter 
stated that merit should be the metric for retaining high-skilled 
workers, not country of birth.
    Response. DHS understands the frustration expressed by commenters 
who have begun the process to obtain lawful permanent residence, but 
who are subject to long waits before their priority date becomes 
current as a result of the per-country visa limits applicable to their 
country of birth. However, DHS is unable to make immigrant visas

[[Page 82467]]

available without regard to an individual's country of birth as these 
are statutory requirements under the INA. See generally INA 202, 8 
U.S.C. 1152. In particular, INA 202(a)(2), requires that, in any fiscal 
year, individuals born in any given country generally may be allocated 
no more than seven percent of the total number of immigrant visas. 
Thus, only Congress can change the per-country limitations in this 
statutory provision. DHS notes that this Administration supported 
lifting the per-country cap as a part of commonsense immigration reform 
legislation that has considered and passed the U.S. Senate in 2013.
4. Guidance on National Interest Waivers
    Comment. Some commenters stated that individuals applying for 
national interest waivers (NIWs) under the employment-based second 
preference immigrant visa (EB-2) category should be able to file their 
applications for adjustment of status immediately upon having their 
Form I-140 petitions approved, instead of enduring long waiting periods 
due to EB-2 immigrant visa backlogs. The commenter explained that those 
who qualify for NIWs would help improve the U.S. economy, wages and 
working conditions of U.S. workers, and educational and training 
programs for U.S. children and underqualified workers. Commenters 
compared the U.S. immigration system with other countries' systems and 
stated that the other countries facilitate permanent status and access 
to benefits faster than the United States. Another commenter requested 
that physicians granted NIWs be considered under the first preference 
employment-based immigrant visa category (EB-1) instead of the second 
preference as this change would attract more international physicians 
to come to the United States at a time when we are facing a shortage of 
physicians. Another commenter requested that DHS eliminate the per-
country limits for NIW beneficiaries.
    Response. DHS appreciates the concerns expressed by commenters 
regarding individuals who are subject to long waits for immigrant 
visas. However, DHS's ability to provide immigrant visas without regard 
to preference category is constrained by the statutory requirements set 
forth by Congress.
    DHS agrees that those who qualify for NIWs could help contribute to 
research and medical advances, the U.S. economy, wages and working 
conditions of U.S. workers, and educational and training programs. 
Individuals who qualify for the NIW are already able to take advantage 
of a faster path to an immigrant visa because they are exempt from the 
labor certification process administered by DOL and may directly 
petition DHS for an immigrant visa. See INA 203(b)(2)(B), 8 U.S.C. 
1153(b)(2)(B). However, DHS notes that by enacting INA 203(b)(1) and 
(b)(2), 8 U.S.C. 1153(b)(1) and (b)(2), Congress statutorily defined 
first- and second-preference (EB-1 and EB-2) categories for employment-
based immigration, and specified that only those in the EB-2 category 
are eligible for a national interest waiver and that they too are 
subject to their respective country's annual visa allocation for that 
preference category. Additionally, Congress specifically provided that 
certain physicians working in shortage areas or veterans facilities may 
be eligible for NIWs. See INA 203(b)(2)(B)(ii), 8 U.S.C. 
1153(b)(2)(B)(ii). Any changes to these provisions would need to be 
made by Congress. DHS notes, however, that physicians may also be 
eligible to seek immigrant visas under the EB-1 classification as 
individuals with extraordinary ability.
5. The Revised Visa Bulletin System
    Comment. Several commenters submitted views on the recently revised 
Visa Bulletin system announced by DOS and DHS on September 9, 2015, and 
the subsequent revisions made on September 25, 2015, to certain dates 
on the October 2015 Visa Bulletin. Commenters expressed their 
disappointment at the September 25 revisions. One commenter requested 
that DHS provide relief in this final rule to the people who were 
affected by these revisions. Other commenters requested a better Visa 
Bulletin system. Finally, one commenter recommended that USCIS should 
continue to advance cut-off dates in the Visa Bulletin.
    Response. DHS appreciates the concerns raised by individuals who 
may have been affected by the September 25 revisions to the October 
2015 Visa Bulletin. However, further revisions to the Visa Bulletin 
system or dates indicated in the Visa Bulletin must be accomplished in 
coordination with DOS and are outside the scope of this rulemaking.

Q. Public Comments and Responses on Statutory and Regulatory 
Requirements

1. Regulatory Impact Analysis
    Comment. Some commenters questioned the validity of the economic 
cost-benefit analysis in the Regulatory Impact Analysis (RIA) that DHS 
developed in support of the rule. These commenters expressed concern as 
to whether the economic analysis adhered to the intent and principles 
of Executive Orders 12866 and 13563. Another commenter believed that 
the economic analysis was biased against U.S. workers in favor of 
foreign workers.
    Response. DHS appreciates the comments received concerning the 
cost-benefit economic analysis in the RIA. However, DHS does not agree 
that the economic analysis is invalid or fails to comply with Executive 
Orders 12866 and 13563, or that the analysis is biased against U.S. 
workers in favor of foreign workers. DHS developed the RIA supporting 
this rule in compliance with these Executive Orders to assess and 
quantify, to the extent possible, the costs and benefits of this rule 
as well as the number of individuals that could be affected by the 
provisions of the rule. DHS places a high priority on conducting its 
regulatory impact analysis in an objective, fact-based manner with the 
highest degree of transparency and integrity in order to support and 
inform the regulatory process.\125\ DHS discusses the impact of this 
rule on U.S. workers in more detail in other sections of Part Q.
---------------------------------------------------------------------------

    \125\ The full Regulatory Impact Analysis published with the 
NPRM is available at https://www.regulations.gov/#!documentDetail;D=USCIS-2015-0008-0270.
---------------------------------------------------------------------------

2. General Economy
    Comment. Many commenters stated that this rule would be good for 
the economy in general terms. Some commenters cited the positive 
effects of high-skilled foreign labor on the overall economy because of 
the stimulating effects in other sectors of the economy. Other 
commenters suggested this rule would stimulate the economy as principal 
beneficiaries and their dependents would contribute by accepting new 
jobs. Commenters cited the numbers of immigrants who hold patents or 
Nobel prizes and the growing number of entrepreneurs. Commenters also 
suggested that providing further flexibilities to these immigrants 
would foster more innovation and entrepreneurship.
    Many commenters agreed that increased stability while waiting to 
adjust status would encourage these high-skilled workers to more fully 
contribute to the economy by making increased investments. Some high-
skilled workers expressed interest in making purchases or investments--
such as buying houses or cars, traveling abroad, or making retirement 
contributions--but refrained from doing so due to their inability to 
predict their

[[Page 82468]]

immigrant status. They also suggested that these kinds of purchases 
would produce many ripple effects on other industries. For example, 
investments in real estate would produce positive ripple effects in the 
construction industry. High-skilled workers also expressed a desire to 
invest in their local communities, but that they refrain from making 
such investments because they are uncertain how long they will be able 
to remain in those communities based on their immigration status. Other 
high-skilled workers commented that the lack of stability during the 
adjustment process caused many high-skilled foreign workers to invest 
in their native countries by sending back money, business, and talent. 
One high-skilled worker provided the example of students who come to 
the United States to study in STEM fields, and later return to their 
home countries due to the difficulties and long wait times for 
adjusting status in the United States. The commenter stated that the 
return of these foreign workers to their native countries results in 
losses to the United States of human capital, development of new 
technologies, revenue, and jobs. High-skilled workers also argued that 
foreign workers strengthen the U.S. economy by paying taxes, including 
making contributions to Social Security and Medicaid. However, these 
high-skilled workers felt they receive few benefits while waiting to 
adjust status. For example, they expressed frustration with the 
inability to obtain federal student loans for additional education for 
themselves and their children. The commenters also noted that the 
dependent children of high-skilled workers are not able to work and 
earn supplemental income while pursuing higher education, which adds to 
the financial constraints many immigrant families experience.
    DHS also received other general comments concerning the economy in 
which the commenters recommended that DHS allow market supply-and-
demand forces to dictate the responses to business needs for foreign 
workers. Other commenters asserted that only 1 to 2 percent of high-
skilled foreign workers would benefit from the changes outlined in this 
rule.
    Finally, commenters also expressed concern over the negative 
effects that both legal and illegal immigration have on wages, the 
economy, schools, the deficit, and the environment, among other things.
    Response. DHS appreciates the comments received concerning the 
effect of this rule on the U.S. economy. The rule recognizes the value 
added to the U.S. economy by retaining high-skilled workers who make 
important contributions to it, including technological advances and 
research and development endeavors, which are correlated with overall 
economic growth and job creation.\126\ Furthermore, this rule provides 
these workers with the stability and job flexibility necessary to 
continue to contribute to the U.S. economy while waiting to adjust 
their status. DHS believes that increased flexibility and mobility will 
encourage nonimmigrant workers to remain in the United States and 
continue to pursue LPR status, and thereby bolster our economy by 
making long-term purchases and continued investments in the United 
States. The commenters' request for USCIS to provide additional 
benefits, such as financial assistance for furthering education, is 
beyond the scope of this rule.
---------------------------------------------------------------------------

    \126\ See 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 (Aug. 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/.
---------------------------------------------------------------------------

    While DHS appreciates commenters questioning the overall reach of 
this rule and the assertion that only limited numbers of high-skilled 
foreign workers will be impacted by these provisions, DHS has made an 
effort to provide additional flexibilities to as many high-skilled 
foreign workers as possible while still adhering to its statutory 
limitations. DHS estimates the maximum number of foreign workers that 
will be impacted by this rule based on the best available information.
    The aim of the INA 204(j) portability provisions is to standardize 
the existing porting process with additional clarifications; these 
provisions thus do not change the population of individuals who are 
eligible to port under section 204(j) of the INA. The regulatory 
provision authorizing employment authorization in compelling 
circumstances is intended to offer a stopgap measure for those 
nonimmigrants who have been sponsored for lawful permanent residence 
and need additional flexibility due to particularly difficult 
circumstances. DHS intentionally limited the availability of such 
employment authorization in part because individuals who avail 
themselves of this benefit will, in many cases, lose their nonimmigrant 
status and thus be required to apply for an immigrant visa abroad via 
consular processing rather than through adjustment of status in the 
United States.
    DHS appreciates the comments on the negative impacts of legal 
immigration including the impacts on wages, jobs, the labor force, 
employer costs, and the estimates derived by the agency. DHS responds 
to these comments more thoroughly in other sections of Part Q of this 
rule.
    While DHS appreciates the commenters' concerns about the negative 
impacts of unauthorized immigration, this rule does not address the 
immigration of individuals who are admitted without inspection or 
parole, or those who stay beyond their authorized period of admission.
    With respect to comments noting a negative impact of immigration on 
schools and the deficit, comments lacked specific information expanding 
on these statements and explaining how this rule would impact schools 
or the deficit. Without additional information, DHS cannot determine 
the impact this rule would have on schools or the deficit. The impact 
of this rule on environmental issues is discussed more fully in Review 
under the National Environmental Policy Act (NEPA), Section Q, subpart 
6.
3. Labor Market and Labor Force Impact, Including Jobs, Wages, and Job 
Portability
i. Effect of the Rule on the Availability of Jobs in the United States
    Comment. Many commenters expressed concerns about the effect this 
rule will have on the availability of jobs in the United States. One of 
the primary concerns commenters had is that there would be fewer jobs 
for U.S. workers if more foreign workers are granted work 
authorization. Such commenters felt that allowing foreign workers 
access to employment authorization when they can demonstrate compelling 
circumstances would lead to increased competition for jobs and fewer 
opportunities for U.S. workers. In addition, commenters argued that DHS 
should not increase the number of foreign workers, especially in 
science, technology, engineering, and mathematics (STEM) fields, which 
commenters allege are fields that hire many high-skilled foreign 
workers. Some commenters cited studies suggesting evidence that a STEM 
worker

[[Page 82469]]

shortage does not exist in the United States.\127\ Many commenters also 
cited recent DOL Bureau of Labor Statistics (BLS) data showing that 
native-born workers have lost 320,000 jobs while 306,000 foreign-born 
workers have gained jobs, and used these data to assert that 
immigration to the United States needs to be reduced.\128\
---------------------------------------------------------------------------

    \127\ For example, commenters cited to the following studies to 
support the claim that there are no labor shortages in STEM fields: 
``Guest Workers in the U.S. Labor Market: An Analysis of Supply, 
Employment, and Wage Trends,'' Economic Policy Institute, Briefing 
Paper #359, Apr. 24, 2013, available at http://www.epi.org/publication/bp359-guestworkers-high-skill-labor-market-analysis/./; 
``Is There A STEM Worker Shortage? A Look at Employment and Wages in 
Science, Technology, Engineering, and Math,'' Center for Immigration 
Studies (May 2014,), available at http://cis.org/no-stem-shortage././. Additionally, one commenter cited the book Sold Out by 
Michelle Malkin and John Miano to provide evidence that there is no 
STEM worker shortage in the United States.
    \128\ None of the commenters cited the source of the analysis 
using these Bureau of Labor Statistics (BLS) data. However, DHS has 
concluded through its own research that the source appears to be a 
news article. See ``New Data: U.S.-born Workers Lose Jobs while 
Foreign-born Find Them,'' The Daily Caller News Foundation, (Jan. 8, 
2016), available at http://dailycaller.com/2016/01/08/new-data-us-born-workers-lose-jobs-while-foreign-born-find-them/.
---------------------------------------------------------------------------

    Other commenters expressed concern that large numbers of recent 
U.S. college graduates are having difficulty securing jobs. These 
commenters expressed their view that this rule will allow foreign 
workers to saturate the open job market, thereby increasing competition 
for jobs at all skill levels and denying them to recent U.S. graduates 
seeking work. Commenters noted their concern that many recent U.S. 
graduates carry large student loan debt and need jobs to begin paying 
off their loans shortly after graduation.
    While many commenters expressed concern that the rule will 
adversely affect the availability of jobs for U.S. workers, other 
commenters stated that the rule will have a favorable effect. For 
example, some commenters asserted that immigration has a positive 
impact on job creation and that increasing the number of foreign 
workers increases employment opportunities for other workers in the 
labor market. Another commenter claimed that there is little evidence 
that immigrants diminish the employment opportunities of U.S. workers 
and thus they are unlikely to have an effect on the American labor 
force and labor market.
    Response. DHS appreciates the points of view commenters expressed 
regarding the effect this rule may have on the U.S. labor market. In 
the RIA, DHS explains that only a limited number of foreign workers 
will seek to apply for employment authorization based on compelling 
circumstances under the final rule, and that DHS does not expect this 
number to have a measurable impact on jobs as many of these workers 
will already be in the labor force. For example, as of 2015, there were 
an estimated 157,130,000 people in the U.S. civilian labor force.\129\ 
DHS estimates in the RIA that there will be about 92,600 dependent 
spouses and children that may be eligible for compelling circumstances 
employment authorization in the first year (the year with the largest 
number of eligible applicants) which represents approximately 0.06 
percent of the overall U.S. civilian labor force.\130\ DHS based its 
analysis of labor market participants on an overestimate of the number 
of affected spouses and children who will be initially eligible to 
apply, despite the fact that this results in overstating the labor 
market impacts. As explained in the RIA, the principal beneficiaries of 
approved Form I-140 petitions who will be eligible under the rule are 
currently in a nonimmigrant status that provides employment 
authorization with a specific employer. Additionally, these principal 
beneficiaries must demonstrate circumstances compelling enough to 
warrant consideration of independent employment authorization. Only 
some dependent spouses and children eligible to apply for employment 
authorization could be considered ``new'' labor market participants 
under this rule.131 132 DHS notes that many of these labor 
market participants are not necessarily new participants but rather 
participants that are eligible to enter the labor market earlier than 
they normally would have. Dependent spouses and children may be 
eligible for employment authorization only if the principal beneficiary 
has been granted independent employment authorization under this rule 
and are in a nonimmigrant status (including while in a grace period 
authorized by final 8 CFR 214.1(l)).\133\
---------------------------------------------------------------------------

    \129\ See United States Department of Labor, Bureau of Labor 
Statistics, Local Area Unemployment Statistics, Regional and State 
Unemployment--2015 Annual Averages, Table 1 ``Employment status of 
the civilian non-institutional population 16 years of age and over 
by region, division, and state, 2014-15 annual averages'' (Mar. 24, 
2016), available at http://www.bls.gov/news.release/pdf/srgune.pdf.
    \130\ Calculation: 92,600 / 157,130,000 * 100 = 0.059 percent 
(or 0.06 percent rounded).
    \131\ Spouses of E-3 and L-1 nonimmigrants are currently 
eligible for employment authorization. However, due to data 
limitations, DHS did not remove those spouses of E-3 and L-1 
nonimmigrants from the estimate of dependent spouses and children 
who could be eligible to apply for EADs under this rule. Moreover, a 
recently promulgated DHS regulation allows for certain H-4 
nonimmigrant spouses of H-1B nonimmigrant workers to apply for 
employment authorization if the principal H-1B nonimmigrant worker: 
(1) Is the beneficiary of an approved Form I-140 petition, or (2) is 
extending status under section 106(a) and (b) of AC21 because a 
petitioning employer has started the employment-based permanent 
residence process on his or her behalf. The RIA estimates in this 
final rule for dependent spouses and children do not include certain 
H-4 spouses who are eligible to apply for work authorization under 
the recently promulgated DHS regulation. See ``Employment 
Authorization for Certain H-4 Dependent Spouses; Final rule,'' 80 FR 
10284 (Feb. 25, 2015).
    \132\ DHS is not able to determine the age of dependent children 
at this time, and is therefore unable to predict the number of 
dependent children who are eligible to work under the Fair Labor 
Standards Act (FLSA) (see U.S. Department of Labor, Youth and Labor 
Age Requirements, available at: http://www.dol.gov/dol/topic/youthlabor/agerequirements.htm). While USCIS does not have a policy 
restricting eligibility for requesting employment authorization 
based on age, the FLSA restricts employment eligibility.
    \133\ DHS did not remove spouses of E-3 and L-1 nonimmigrants 
from the estimate of dependent spouses and children who could be 
eligible to apply for employment authorization under this rule. 
Spouses of E-3 and L-1 nonimmigrants are currently otherwise 
eligible to apply for EADs.
---------------------------------------------------------------------------

    From a labor market perspective, it is important to note that the 
number of jobs in the United States is not fixed or static. Basic 
principles of labor market economics recognize that individuals not 
only fill jobs, but also stimulate the economy and create demand for 
jobs through increased consumption of goods and services.\134\ These 
regulatory changes apply mainly to nonimmigrants who have actively 
taken certain steps to obtain LPR status. The rule simply accelerates 
the timeframe by which these nonimmigrants are able to enter the U.S. 
labor market. Importantly, the rule does not require eligible 
nonimmigrants to submit an application for an EAD based on compelling 
circumstances, nor does granting such an EAD guarantee employment for 
an individual. Further, the relatively small number of people the rule 
affects limits any effect the rule may have on the labor market.
---------------------------------------------------------------------------

    \134\ Ehrenberg, R.G., and Smith, R.S. (2012). Modern labor 
economics: Theory and public policy. (11th ed.). Boston, 
Massachusetts: Prentice Hall.
---------------------------------------------------------------------------

    DHS also appreciates commenters' concerns that DHS should not 
increase the number of foreign workers through this rule, especially in 
STEM fields. While DHS does not specifically identify foreign workers 
in STEM fields as the main beneficiaries of this rule, the main 
beneficiaries of this rule may nevertheless be high-skilled workers who 
happen to be in STEM fields. Further, it is not the goal of this rule 
to increase the numbers of workers in STEM fields, rather it is to 
provide various flexibilities to high-skilled foreign workers in 
certain employment-based immigrant and nonimmigrant visa programs who 
are already working in

[[Page 82470]]

the U.S. Many of the changes outlined in the rule are primarily aimed 
at high-skilled workers who are beneficiaries of approved employment-
based immigrant visa petitions and are waiting to become lawful 
permanent residents (LPRs). Additionally, the changes are meant to 
increase the ability of such workers to seek promotions, accept lateral 
positions with current employers, change employers, or pursue other 
employment options. DHS acknowledges there is a possibility that this 
rule could impact foreign-born STEM workers in the United States. 
However, DHS is not able to quantify the magnitude of the potential 
effect this rule could have on the number of such workers because we 
cannot separate individuals who are specifically STEM workers from the 
broader population of high-skilled foreign workers, who are the focus 
of this rule. DHS notes that commenters did not provide estimates or 
sources of data to more accurately determine the additional number of 
workers this rule may add.
    Moreover, DHS appreciates the comments received citing studies 
suggesting that the United States does not have a STEM worker shortage. 
DHS notes that the intention of this rule is not to increase the number 
of STEM workers in the United States or to eliminate a possible STEM 
worker shortage. While, as just noted, there is a possibility that this 
rule could impact the number of STEM foreign workers, DHS does not know 
how many STEM foreign workers would be impacted. Further, DHS explained 
in a recent rulemaking that there is no straightforward answer as 
whether the United States has a surplus or shortage of STEM 
workers.\135\ Moreover, according the National Science Foundation 
(NSF),
---------------------------------------------------------------------------

    \135\ ``Improving and Expanding Training Opportunities for F-1 
Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All 
Eligible F-1 Students; Final rule,'' 81 FR 13040 (11 Mar. 2016).

It depends on which segment of the workforce is being discussed 
(e.g., sub-baccalaureates, Ph.D.s., biomedical scientists, computer 
programmers, petroleum engineers) and where (e.g., rural, 
metropolitan, ``high-technology corridors''). It also depends on 
whether ``enough'' or ``not enough STEM workers'' is being 
understood in terms of the quantity of workers; the quality of 
workers in terms of education or job training; racial, ethnic or 
gender diversity, or some combination of these considerations (p. 
---------------------------------------------------------------------------
9).\136\

    \136\ National Science Foundation (NSF), ``Revisiting the STEM 
Workforce: A Companion to Science and Engineering Indicators,'' 
2014, 9 (Feb. 4, 2015), available at http://www.nsf.gov/pubs/2015/nsb201510/nsb201510.pdf.
---------------------------------------------------------------------------

The NSF highlights the complexity in definitively stating whether there 
is or is not a STEM worker shortage or surplus.

    DHS reviewed the cited BLS data showing that foreign-born workers 
are gaining jobs at a much higher rate than native-born workers in 
support of their argument that immigration to the United States needs 
to be reduced. DHS notes that the BLS employment data cited show the 
monthly change in employment levels of the entire U.S. population, 
separated into groups of native-born and foreign-born workers for 
comparison.\137\ In addition, the BLS data commenters cite specifically 
show the net change in employment levels over the two-month period of 
November to December 2015, during which native-born workers lost 
320,000 jobs while foreign-born workers gained 306,000 jobs. When one 
examines the same BLS employment level data for all of calendar year 
2015 (January to December), the data show that native-born workers 
gained 2,278,000 jobs and foreign-born workers gained 873,000 jobs. 
Considering these longer-term trends in employment levels, the data 
obtained from the short, seasonal period of time between November and 
December 2015 presents an incomplete and misleading picture.\138\
---------------------------------------------------------------------------

    \137\ The BLS defines ``foreign-born'' as ``persons residing in 
the United States who were not U.S. citizens at birth. That is, they 
were born outside the United States or one of its outlying areas 
such as Puerto Rico or Guam, to parents neither of whom was a U.S. 
citizen. The foreign-born population includes legally-admitted 
immigrants, refugees, temporary residents such as students and 
temporary workers, and undocumented immigrants. The survey data, 
however, do not separately identify the numbers of persons in these 
categories.'' See http://www.bls.gov/news.release/forbrn.tn.htm.
    \138\ DHS notes that the source of these data, the Current 
Population Survey at BLS, presents a broad picture of employment, as 
it is a household survey and includes agricultural workers and the 
self-employed, although neither of these groups is within the main 
target population of this rule. The BLS conducts another employment 
survey, the Current Employment Statistics, based on payroll data 
that is a more reliable gauge of measuring month-to-month change due 
to a smaller margin of error than the household survey. Both the 
payroll and household surveys are needed for a complete picture of 
the labor market due to the make-up of the surveys and the type of 
respondents. However, these commenters only rely on the household 
survey. It is misleading to attribute statistics that encompass all 
foreign-born workers in the United States to only the high-skilled 
employment-based workers identified in this rule. The BLS data does 
not distinguish foreign workers by educational attainment, and while 
this rule is mainly aimed at high-skilled foreign workers who likely 
have at least a bachelor's degree, it would be incorrect to compare 
this specific population to all foreign-born workers. Foreign-born 
workers could include low-skilled workers, temporary workers, 
students, or even undocumented immigrants, which are not the main 
target populations for this rule.
---------------------------------------------------------------------------

    In addition, DHS appreciates the comments it received that large 
numbers of recent college graduates are having difficulty securing jobs 
and that foreign workers will saturate the job market, thereby 
increasing competition for jobs and denying them to recent U.S. 
graduates seeking work. As this rule is primarily focused on retaining 
and providing flexibilities to high-skilled foreign workers who are 
already in the United States, DHS disagrees with these commenters. Most 
of the high-skilled foreign workers targeted in this rule would not be 
competing for similar jobs or levels of jobs as recent college 
graduates. However, DHS has considered the impact on the labor market, 
as discussed in the RIA and in other sections of this final rule. As 
previously discussed though, the rule simply accelerates the timeframe 
by which spouses and dependents are able to enter the U.S. labor 
market. Importantly, the rule does not require eligible spouses and 
dependents to submit an application for employment authorization, nor 
does the granting of employment authorization guarantee that spouses 
and dependents will obtain employment.
    Comment. Several commenters requested that DHS take steps to 
prevent situations in which large companies lay off a number of U.S. 
workers and replace them with H-1B nonimmigrant workers. Commenters 
have stated that the laid-off U.S. workers are often forced to train 
their H-1B replacements or forgo severance pay. One commenter stated 
that large outsourcing agencies have promoted the practice of replacing 
U.S. workers, and the rule should prohibit entities from submitting 
petitions for H-1B and L-1 classification if the entities have more 
than 50 employees and more than 50 percent of their workforce or 
subcontracted vendors are on H-1B and L-1 visas.
    Response. Existing law and regulation provide some protection 
against the types of employer abuses cited by commenters. Before filing 
an H-1B petition, the U.S. employer petitioner generally must first 
file a labor condition application (LCA) with DOL that covers the 
proposed dates of H-1B employment.\139\ 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, 
the location(s) where the employment will occur, that the working 
conditions provided to the H-1B nonimmigrant

[[Page 82471]]

worker will not adversely affect other similarly situated workers, and 
that there is no strike or lockout in the occupational classification 
at the place of employment.\140\ Petitioners who employ a certain 
percentage of H-1B nonimmigrant workers are considered to be ``H-1B 
dependent'' and are subject to additional attestations.\141\ These U.S. 
employers are required to attest that they did not and will not 
displace U.S. workers employed by the employer within the period 
beginning 90 days before and ending 90 days after the date of the 
filing of any visa petition supported by the LCA and that they took 
good faith steps to recruit qualified U.S. workers for the prospective 
H-1B position.\142\ Employers are not subject to these additional 
requirements, however, if the only H-1B nonimmigrant workers sought in 
the LCA 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.\143\ DOL may impose penalties and fines if an employer 
fails to comply with the requirements of the LCA.\144\
---------------------------------------------------------------------------

    \139\ 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).
    \140\ See INA section 212(n), 8 U.S.C. 1182(n); see also 20 CFR 
655.730(c)(4) and (d).
    \141\ See INA section 212(n)(3)(A), 8 U.S.C. 1182(n)(3)(A); see 
also 20 CFR 655.736.
    \142\ Id. See INA section 212(n)(1) and (3), 8 U.S.C. 1182(n)(1) 
and (3); see also 20 CFR 655.736.
    \143\ See INA section 212(n)(1)(E)(ii) and (n)(3)(B), 8 U.S.C. 
1182(n)(1)(E)(ii) and (n)(3)(B).
    \144\ See INA 212(n)(2), 8 U.S.C. 1182(n)(2); see also 20 CFR 
655.800 et seq.
---------------------------------------------------------------------------

    DHS appreciates the commenter's suggestion that the rule should 
prohibit certain petitioners from being allowed to submit H-1B or L-1 
petitions based on how many of their employees are already foreign 
workers; however, DHS notes such action is beyond the scope of this 
regulation. While DHS does not prevent petitioners from filing based on 
current numbers of foreign workers, certain petitioning employers are 
required by law to pay additional fees when filing H or L nonimmigrant 
petitions, depending on the size of the employer and number of foreign 
workers it employs in those statuses.\145\
---------------------------------------------------------------------------

    \145\ See H and L Filing Fees for USCIS Form I-129, Petition for 
a Nonimmigrant Worker, available at: https://www.uscis.gov/forms/h-and-l-filing-fees-form-i-129-petition-nonimmigrant-worker.
---------------------------------------------------------------------------

ii. Effect of the Rule on Job Portability for Foreign Workers
    Comment. Some commenters expressed concerns about the effect this 
rule will have on the ability of foreign workers to change jobs or 
employers (the ability to port). One commenter claimed that the 
inability of foreign workers to port distorts the labor market by 
preventing such workers from taking more senior positions. According to 
the commenter, this inability to advance reduces the number of 
available jobs that U.S. workers could fill and reduces economic 
growth.
    Other commenters stated that the rule will have a favorable effect 
on U.S. workers. For example, one commenter stated that job flexibility 
for foreign workers will improve competition in the job market and 
allow foreign workers to better compete with American workers, thereby 
improving wages for all workers. Moreover, according to the commenter, 
allowing foreign workers to change jobs, as outlined in the rule, would 
allow such workers to progress in their careers without restrictions 
and would make the labor market fairer for all American citizens.
    Response. DHS appreciates the comments regarding the rule's effect 
on the labor market due to the ability or inability of high-skilled 
foreign workers to port. The intent of this final rule is, in part, to 
alleviate some of the difficulties high-skilled foreign workers 
experience while trying to change jobs to progress in their careers or 
to change employers altogether, consistent with existing statutory 
authorities. Currently, section 204(j) of the INA authorizes DHS to 
provide job flexibility for applicants with long-delayed applications 
for adjustment of status. Under this section, foreign nationals are 
eligible to port to a new position with either the same or a new 
employer if he or she filed an Application to Register Permanent 
Residence or Adjust Status (Form I-485) that has remained pending for 
180 days or more, as long as the new job is in the same or a similar 
occupational classification as the job for which the underlying 
employment-based immigrant visa petition was filed.
    Moreover, DHS appreciates the commenter's concern that the lack of 
job portability diminishes economic growth by restricting upward and 
lateral job mobility of foreign workers, which in turn prevents jobs 
from opening up that may be filled by U.S. workers. The focus of this 
rule is to streamline and standardize the porting process and make it 
easier for eligible individuals to port and advance upwards in their 
careers. DHS believes that standardizing job portability will thus 
benefit high-skilled workers in immigrant and nonimmigrant visa 
classifications.
iii. Effect of the Rule on Wages
    Comment. Many commenters expressed concerns about the effect this 
rule will have on wages. One of the primary concerns commenters had is 
that the rule will lead to an overall reduction in wages for U.S. 
workers because employers will be inclined to hire immigrant workers 
who may work for lower wages. A few commenters claimed that some 
companies underpay U.S. workers by implicitly threatening to replace 
them with lower-paid foreign workers with H-1B or L-1 nonimmigrants. 
Moreover, DHS received many comments about the impact this rule would 
have on wages from the perspective of immigrant workers. Many of these 
commenters stated that the rule will lead to wage suppression because 
it will still be difficult for immigrant workers to change jobs easily, 
thereby allowing employers to offer lower wages to immigrant workers as 
well as U.S. workers. Commenters expressed that this resulting decline 
in wages would especially be felt in the technology sector. Some 
commenters asserted that many companies lay off native-born engineers 
and other technology industry workers during economic downturns, and 
then rehire immigrant workers at reduced wages.
    Other commenters stated that the rule will have a favorable effect 
on the wages of high-skilled U.S. and foreign workers. Many commenters 
noted that high-skilled foreign workers raise the wages of U.S. 
workers. For example, some commenters cited recently published research 
showing that higher numbers of H-1B nonimmigrant workers in STEM fields 
appear to positively affect the wages of U.S. high-skilled 
workers.\146\ Finally, commenters mentioned that as wages increase for 
high-skilled foreign workers, the economy will improve and additional 
taxes will be paid into the system.
---------------------------------------------------------------------------

    \146\ See Rothwell, J., and N.G. Ruiz,''H-1B Visas and the STEM 
Shortage,'' Brookings Institution, (2013), available at http://www.brookings.edu/research/papers/2013/05/10-h1b-visas-stem-rothwell-ruiz. The authors of this paper also published a companion 
white paper that expands upon the research published by the 
Brookings Institution, see Rothwell, J., and N.G. Ruiz, ``H-1B Visa 
and the STEM Shortage: A Research Brief. Social Science Research 
Network (SSRN)'' (2013), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2262872.
---------------------------------------------------------------------------

    Response. DHS appreciates the points of view commenters expressed 
regarding the effect of the rule on wages for native-born and immigrant 
workers, but disagrees with statements that wages will be depressed by 
this rule. DHS notes that a large body of research exists supporting 
the findings that high-skilled immigrant workers are beneficial to the 
U.S. economy and labor market in the long term. While recent research 
shows evidence that immigration of high-skilled workers leads to net 
long-term benefits, there is a potential for negative impacts in the 
short-term for some U.S.

[[Page 82472]]

workers.\147\ In fact, most federal government reports and academic 
literature show that immigration generally produces a modest increase 
in the wages of native-born workers in the long run, and that any 
negative economic effects (in the form of wages) are largely felt by 
other immigrant workers with education and skill levels similar to 
native-born workers.\148\ However, there is some debate regarding wages 
in the economic literature. For example, lower-skilled and less 
educated workers may experience declining wages as an immediate, short-
run response to a sudden, unexpected increase in the labor supply 
(i.e., a labor supply shock) before wage levels recover or exceed where 
they were prior to the increase in the labor supply.\149\ A recent 
Congressional Budget Office (CBO) report presents a similar finding, 
though with a focus on all U.S. workers rather than just native-born 
workers.\150\ The CBO report finds that average wages for low-skilled 
workers would initially decline in response to a labor supply shock, 
but would steadily increase towards, and eventually exceed, the pre-
labor supply shock wage level. The downward pressure on average wages 
would be an effect of the additional, new low-skilled workers being 
paid lower wages, rather than native-born workers being paid less. 
Additionally, an increased number of high and low-skilled workers in 
the labor force are expected to increase employment and economic growth 
(i.e., increase the rate of growth of gross domestic product [GDP]) as 
well as increase labor productivity as workers gain more flexibility in 
the labor market and are able to pursue additional training and 
activities to improve skills.\151\
---------------------------------------------------------------------------

    \147\ See ``The Economic Impact of S. 744, the Border Security, 
Economic Opportunity, and Immigration Modernization Act,'' 
Congressional Budget Office (CBO), (June 18, 2013), available at 
http://www.cbo.gov/sites/default/files/cbofiles/attachments/44346-Immigration.pdf; Ottaviano, G. & Peri, G., ``Rethinking the Effects 
of Immigration on Wages,'' Journal of the European Economic 
Association, (Feb. 2012), 10(1): 152-197.
    \148\ Id.
    \149\ See Borjas, George J., ``The Wage Impact of the 
Marielitos: A Reprisal'' (2015), available at http://www.hks.harvard.edu/fs/gborjas/publications/working%20papers/Mariel2015.pdf. Borjas' findings focus specifically on low-skilled 
and low-educated Cuban immigrants who arrived in the United States 
during the 1980 Mariel boatlift. As many as 125,000 Cubans 
immigrated to the United States by the end of 1980 with as many as 
half settling in the Miami area, thereby increasing the number of 
workers by about 8 percent and increasing the number of high school 
dropouts by almost 20 percent.
    \150\ See ``The Economic Impact of S. 744, the Border Security, 
Economic Opportunity, and Immigration Modernization Act,'' 
Congressional Budget Office (CBO), (June 18, 2013), available at 
http://www.cbo.gov/sites/default/files/cbofiles/attachments/44346-Immigration.pdf. According to the report, wages for the entire labor 
force are projected to be 0.1 percent lower through 2023, but then 
increase through 2033 to where wages are about 0.5 percent higher 
than the initial wage level in 2013. After disaggregating relative 
wages according to skill level, CBO estimated that wages of those in 
the lowest and highest quintile (low-skilled and high-skilled, 
respectively) would decline by 0.3 percent; the wages of those in 
the middle three quintiles are expected to increase by 0.5 percent. 
The CBO report emphasizes the overall level of wages is also 
affected by other factors such as the capital-to-labor ratio and 
total factor productivity.
    \151\ Treyz, Frederick R., C. Stottlemyer, and R. Motamedi, 
``Key Components of Immigration Reform: An Analysis of the Economic 
Effects of Creating a Pathway to Legal Status, Expanding High-
skilled Visas, & Reforming Lesser-skilled Visas,'' Regional Economic 
Models, Inc. (REMI), (2013), available at http://www.remi.com/immigration-report.
---------------------------------------------------------------------------

    DHS takes seriously commenters that stated that some companies 
underpay U.S. workers by implicitly threatening to replace them with 
lower-paid foreign workers on H-1B and L-1 visas. DHS continues to work 
with DOL to protect U.S. workers. To protect the wages and working 
conditions of U.S. workers, the INA requires employers that file a 
request with DHS for an H-1B nonimmigrant worker to first file an LCA 
with DOL, attesting to pay the required wage; to provide working 
conditions that will not adversely affect the working conditions of 
U.S. workers similarly employed; that there is no strike, lockout, or 
work stoppage in the course of a labor dispute in the occupational 
classification at the place of employment at the time of filing; and to 
notify its U.S. workers that it intends to hire the nonimmigrant 
worker.\152\ Similarly, the majority of employers that file a Form I-
140 petition with DHS must first file a labor certification application 
with DOL, which requires a labor market test of U.S. workers and 
attestations to numerous labor conditions, such as paying the required 
wage,\153\ providing working conditions that will not adversely affect 
U.S. workers, and only rejecting U.S. worker applicants for lawful, 
job-related reasons.\154\
---------------------------------------------------------------------------

    \152\ See INA 212(n), 8 U.S.C. 1182(n); see also 8 CFR 
214.2(h)(4)(i)(B) and 20 CFR 655.700.
    \153\ Before filing a labor certification application, an 
employer must obtain a prevailing wage determination from DOL. The 
prevailing wage determination establishes the minimum wage the 
employer may offer and pay to the foreign national, as well as 
advertise in the course of recruitment to U.S. workers. See INA 
212(p), 8 U.S.C. 1182(p); see also 20 CFR part 656.
    \154\ See 20 CFR part 656.
---------------------------------------------------------------------------

iv. Effect of Employment-Based Immigration on Falling Income
    Comment. Some commenters stated that median household income has 
been driven down by $4,000 per year because immigrants are entering the 
labor market.
    Response. DHS does not agree with these commenters. While the 
commenters did not identify the source of their statement, DHS assumes 
the statement came from an opinion editorial that stated a series of 
assertions related to U.S. economic conditions.\155\ Although the topic 
of the opinion editorial concerned the effect of immigration in the 
United States on native-born workers, the assertions it makes, 
including that ``median family income is down $4,000 since November 
2007,'' are not attributed as being directly caused by immigration as 
some commenters state in their opposition to this rule.\156\ Of note, 
the United States, along with many other industrialized countries, 
experienced a major economic recession between 2007 and 2009, and which 
continued to impact the global economy well after 2009. It is far more 
likely that median family income decreased during that period as a 
result of such a major economic recession and the lasting impacts of 
that recession, rather than solely due to the effects of immigration.
---------------------------------------------------------------------------

    \155\ None of the commenters cited the source for this 
statement. However, a similar amount for median household income in 
the immigration context was published in the National Review. See 
Sessions, J., ``Who's Looking Out for the American Worker,'' 
National Review, (Dec. 12, 2014), available at http://www.nationalreview.com/article/394614/whos-looking-out-american-worker-jeff-sessions.
    \156\ Id.
---------------------------------------------------------------------------

v. Effect of the Rule on Costs Incurred by Employers
    Comment. Many commenters, both employers and employees, suggested 
that this rule overall would unnecessarily increase administrative and 
legal costs, as well as time burdens, for employers, which may 
discourage employers from hiring high-skilled foreign workers. Other 
commenters expressed concerns that the rule would deter employers from 
either retaining existing foreign workers or hiring new foreign workers 
by making regulatory compliance a more difficult process. Commenters 
suggested that hiring immigration attorneys would be necessary to 
complete the paperwork and thus employers would invest thousands of 
dollars into hiring high-skilled foreign workers, but have no guarantee 
of retaining those employees. Employers cited costs ranging from 
$10,000 to $20,000 or more per employee for both USCIS and attorney 
fees. Many employers expressed concern over losing their financial 
investment in new employees if portability is exercised more

[[Page 82473]]

extensively. However, some employers supported this rule because it 
would help them hire the best talent. Employees who commented on this 
issue stated that employers spend a small percentage of their revenue 
on immigration-related fees, which are offset from the benefits they 
receive from high-skilled workers.
    Response. DHS appreciates the concern expressed about additional 
employer costs and the impact on high-skilled workers. It is unclear to 
DHS of the source and composition of the specific costs that commenters 
cited, which ranged from $10,000 to $20,000. Commenters did not provide 
any detailed evidence of how these total employer costs were 
calculated, nor did they indicate any source for these estimates. DHS 
assumes these total costs may be comprised of filing fees and 
opportunity costs of time, including the employment of a lawyer, among 
other costs not defined. There may be some additional costs to 
employers due to employee turnover, as recognized and discussed in the 
RIA. DHS acknowledges that the rule may negatively affect some U.S. 
employers that sponsor workers for employment-based immigrant visas, 
primarily through higher rates of employee turnover due to accepting 
offers of employment with other employers. DHS reiterates that these 
are not required benefits and employers voluntarily sponsor workers. 
Employers incur costs by filing an employment-based immigrant visa 
petition on an employee's behalf when seeking to sponsor that employee 
for lawful permanent residence. However, employers may view the costs 
associated with sponsoring an employee as a tangible investment in the 
company. Firms make rational decisions to hire foreign workers that 
fill a need such that the cost of the investment is outweighed by the 
potential benefit of employing that foreign worker. At the same time, 
if the principal beneficiary of the immigrant visa petition is in a 
compelling situation that qualifies for temporary employment 
authorization or ports and changes employers under either INA 204(j) or 
pursuant to the H-1B portability provisions, the petitioning employer 
could incur some turnover costs. Consequently, increased rates of 
employee turnover may occur as certain nonimmigrant workers pursue 
employment with different employers. Other employers, however, will 
benefit by being able to hire these foreign workers without having to 
expend any immigration petition costs.
    With regard to commenters' concerns that the rule would deter 
employers from either retaining existing foreign workers or hiring new 
foreign workers by making regulatory compliance a more difficult 
process, DHS notes that, for the most part, it is codifying 
longstanding policy and practice implementing relevant provisions of 
AC21. 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, while increasing 
the ability of those workers to seek promotions, accept lateral 
positions with current employers, change employers, or pursue other 
employment options. DHS's intention is not to add to regulatory 
compliance, but rather to simplify and ease regulatory compliance.
4. DHS Estimate of 155,000 Compelling Circumstances Employment 
Authorization Applicants
    Comment. Several commenters questioned the DHS estimate of 155,000 
EADs that could be issued under the compelling circumstances provisions 
of this rule. Many commenters stated that this estimate was much higher 
than the actual number of individuals who would qualify for the 
compelling circumstances EAD. One commenter stated that there is no 
justification for how this number was estimated. Another commenter 
asked if this estimate was changed at the last minute due to pressure 
from lobbyists. A commenter also asked if USCIS estimated how many 
people with approved Form I-140 petitions will be eligible for EADs 
based on ``compelling circumstances.''
    Response. DHS appreciates the comments regarding the estimated 
number of compelling circumstances EADs that could be issued under the 
provisions of this rule. Commenters questioned DHS's estimate of more 
than 155,000 EADs and the lack of justification for how USCIS estimated 
this number. However, commenters did not provide an alternative source 
of data that would provide a more accurate estimate. DHS estimated the 
maximum annual average of individuals who may request employment 
authorization under the provisions of this rule in the first two years. 
DHS estimated this maximum average was 155,067 for PRA purposes in the 
NPRM.\157\ In the NPRM, DHS estimated that a maximum total of 257,039 
individuals may be eligible to apply for employment authorization based 
on compelling circumstances in the first year of implementation and a 
maximum annual estimate of 53,095 individuals in the second and 
subsequent years.\158\ As detailed in the RIA to the NPRM and final 
rule, DHS estimates the maximum number of individuals that may be 
eligible to apply for employment authorization; however, the analysis 
is unable to model for the number of individuals who will find 
themselves in compelling circumstances or predict their eligibility 
along those discretionary lines. Please consult the RIA for the final 
rule for a detailed explanation on the DHS estimates of the backlog, 
annual flow, and associated costs.
---------------------------------------------------------------------------

    \157\ Calculation: [257,039 (maximum total of eligible 
individuals in year 1) + 53,095 (maximum annual estimate in year 
2)]/2 = 155,067.
    \158\ For the proposed rule, DHS estimated a maximum total of 
257,039 individuals, which includes the backlog estimate of 203,944 
individuals (principals and eligible dependent spouses and children) 
and the annual estimate of 53,095 individuals. DHS assumes that all 
individuals in the backlog will apply for employment authorization 
in the first year of implementation of this rule. Moreover, as 
described in the RIA, the visa ``backlog'' is the estimated number 
of persons waiting for the availability of an immigrant visa. DHS 
estimated the number of persons in the specified, eligible 
nonimmigrant visa classifications with approved Form I-140 petitions 
who are currently waiting for a visa to become available in certain 
employment-based preference categories.
---------------------------------------------------------------------------

    In the RIA for this final rule, DHS has updated the estimated 
maximum number of individuals that may be eligible to apply for the 
compelling circumstances employment authorization. DHS estimates for 
the final rule that a maximum total of 361,766 individuals may be 
eligible to apply for employment authorization based on compelling 
circumstances in the first year of implementation of this rule and a 
maximum annual estimate of 64,561 individuals in the second and 
subsequent years.\159\ DHS reiterates that eligibility for independent 
employment authorization will be limited to those who meet specified 
criteria that demonstrate compelling circumstances, and who are 
physically present in the United States. Such individuals must be in 
specified, eligible nonimmigrant visa classifications with approved 
employment-based immigrant visa

[[Page 82474]]

petitions and are currently waiting for a visa to become available in 
certain employment-based preference categories. Employment 
authorization based on compelling circumstances granted under this rule 
will be valid for a period of one year.
---------------------------------------------------------------------------

    \159\ For the final rule, DHS estimated a maximum total of 
361,766 individuals, which includes the backlog estimate of 297,205 
individuals (principals and eligible dependent spouses and children) 
and the annual estimate of 64,561 individuals. DHS again assumes 
that all individuals in the backlog will apply for employment 
authorization in the first year of implementation of this rule. Note 
that due to data limitations the estimates of the population 
eligible to be granted employment authorization based on compelling 
circumstances presented are the maximum number of individuals that 
may be eligible to apply; however, DHS expects that a smaller number 
of individuals, in practice, will choose to apply.
---------------------------------------------------------------------------

5. Unfunded Mandates Reform Act Violation
    Comment. One commenter stated that these regulations violate the 
federal mandates in the Unfunded Mandates Reform Act (UMRA). The 
commenter stated that the NPRM is clearly within the scope of both the 
private sector and state and local area UMRA mandates. The commenter 
was of the view that the rule falls within UMRA based on the following 
factors: (1) Economic expenditures exceed $100 million (adjusted for 
inflation) in the first year; and (2) if implemented, the proposed 
amendments codifying the AC21 and ACWIA policies and practices would 
affect and change the numbers of individuals subject to the H-1B cap 
and ACWIA fees. The commenter stated that extensions and other 
modifications to the ACWIA fee payment requirements ``would be an 
intergovernmental mandate as defined by UMRA'' because the rule changes 
the number and definition of foreign nationals to whom the ACWIA fees 
applies. The commenter also stated that these statutory mandates are 
imposed on all ``institutions of higher education'' and ``affiliated 
and related non-profit entities.''
    The commenter also was of the view that the unfunded mandates 
associated with the published NPRM significantly change how the 
statutory caps on immigrant and H-1B nonimmigrant visas operate for all 
other H-1B employers as well. The commenter asserted that the NPRM 
states there is a very significant impact on the entire range of STEM- 
and IT-related economic sectors, which rely on increases in 
productivity and innovation driven by immigration of H-1B workers who 
adjust status while employed in the United States. The commenter stated 
that the proposed regulations are not the result of voluntary action by 
taxpayer funded state and local government agencies. Additionally, the 
commenter cited the book Sold Out by Michelle Malkin and John Miano to 
provide evidence that there is no STEM worker shortage in the United 
States.
    Response. For this final rule, DHS has added a statement to address 
the requirements of Title II of UMRA. As stated in the UMRA section of 
this final rule, the $100 million expenditure threshold (adjusted for 
inflation) may be exceeded in the first year of implementation, and the 
main provisions driving the cost estimate are the employment 
authorization granted for compelling circumstances and porting ability 
under section 204(j) of the INA.
    While these provisions do not directly impose any additional 
Federal mandates on state, local, and tribal governments, in the 
aggregate, or by the private sector, there may be some petitioning 
employers that could potentially experience some employee turnover 
costs should the worker beneficiaries of those petitions choose to port 
to another employer or obtain independent employment authorization 
based on compelling circumstances. DHS recognizes that these provisions 
could place additional burdens on the state and private sector in these 
circumstances. However, DHS reiterates that these are not required 
immigration benefits. State and private sector employers make the cost-
benefit decisions of whether to expend finances to petition for foreign 
workers.
    DHS agrees with the commenter that codifying the AC21 and ACWIA 
policies and practices would affect and change the numbers of 
individuals subject to the H-1B cap exemption and ACWIA fees. DHS 
provides this assessment of the ACWIA fees in the RIA of this final 
rule (as well as the RIA published in the NPRM). As stated in the RIA, 
DHS reported a total of 8,589 H-1B exemptions due to an employer being 
a nonprofit entity related to or affiliated with an institution of 
higher education.\160\ DHS anticipates that there may be an increase as 
a result of these amendments in the numbers of cap exemptions, due to 
the employer being a nonprofit entity related to or affiliated with an 
institution of higher education. However, we cannot project the size of 
such an increase at this time. In addition, DHS notes that because 
petitioners that are currently cap-subject could become eligible for 
cap-exempt status, the transition of such currently cap-subject 
petitioners could result in other cap-subject petitioners being 
approved.
---------------------------------------------------------------------------

    \160\ Department of Homeland Security, Report on H-1B Petitions, 
Fiscal Year 2015 Annual Report to Congress October 1, 2014--
September 30, 2015. Available at: https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/H-1B/H-1B-FY-2015-Petitions.pdf.
---------------------------------------------------------------------------

    DHS does not state in the NPRM that there will be a significant 
impact on any specific sectors of the economy that may be reliant on H-
1B workers, nor does it identify STEM- or IT-related workers as the 
main beneficiaries of the provisions in the final rule. As previously 
mentioned, DHS does not have enough data to substantiate the 
commenter's conclusion from Malkin and Miano's book on STEM worker 
shortages. Please see section Q(3)(i) for further discussion about the 
rule's intended beneficiaries and the effect on foreign workers in STEM 
fields. DHS reiterates that the goals of this rule include enhancing 
U.S. employers' ability to retain and attract high-skilled and certain 
other workers to the United States and increasing flexibility in 
pursuing normal career progression for those workers pursuing LPR 
status in certain employment-based immigrant visa categories who are 
waiting for immigrant visas to become available.
6. Review Under the National Environmental Policy Act (NEPA)
    Comment. A commenter asserted that this rule, like all immigration 
rules, must be subject to review under the National Environmental 
Policy Act (NEPA). Under NEPA, agencies must prepare an Environmental 
Impact Statement for all ``major Federal actions significantly 
affecting the quality of the human environment.'' The commenter argued 
that concerns of the impact of human population growth on the quality 
of the environment must be taken into consideration under NEPA. The 
commenter suggested that both legal and illegal immigration is the 
principal cause of current U.S. population growth. Furthermore, the 
commenter claimed that DHS should prepare an environmental assessment 
to address the impacts of the result from this rule.
    Response. The population affected by this rule is primarily 
comprised of immigrants and nonimmigrants who are already in the United 
States and have been present for a number of years. The rule increases 
flexibilities in pursuing normal career progression for those workers 
pursuing LPR status in certain employment-based immigrant visa 
categories who are waiting for visas to become available. For that 
reason, DHS does not consider this rulemaking to significantly affect 
the quality of the human environment. Further, this rule is 
categorically excluded from NEPA review. DHS Management Directive (MD) 
023-01 Rev. 01 establishes procedures that DHS and its components use 
to comply with NEPA and the Council on Environmental Quality (CEQ) 
regulations for implementing NEPA, 40 CFR parts 1500-1508. CEQ 
regulations allow federal agencies to establish categories of actions, 
which do not individually or cumulatively have a significant effect on 
the human environment and, therefore,

[[Page 82475]]

do not require an Environmental Assessment or Environmental Impact 
Statement. 40 CFR 1507.3(b)(1)(iii), 1508.4. The MD 023-01 Rev. 01 
establishes the Categorical Exclusions that DHS has found to have no 
such effect. MD 023-01 Rev. 01 Appendix A Table 1.
    For an action to be categorically excluded, MD 023-01 Rev. 01 
requires the action to satisfy each of the following three conditions: 
(1) The entire action clearly fits within one or more of the 
Categorical Exclusions; (2) the action is not a piece of a larger 
action; and (3) no extraordinary circumstances exist that create the 
potential for a significant environmental effect. MD 023-01 Rev. 01 
section V.B(1)-(3).
    DHS has determined that this rule does not individually or 
cumulatively have a significant effect on the human environment because 
it fits within the Categorical Exclusion found in MD 023-01 Rev. 01, 
Appendix A, Table 1, number A3(d): ``Promulgation of rules . . . that 
interpret or amend an existing regulation without changing its 
environmental effect.'' Rather, this rule affects current participants 
in immigration programs by codifying existing policies and procedures 
and making amendments to DHS regulations designed to improve its 
immigration programs.
    Finally, this rule is not part of a larger action and presents no 
extraordinary circumstances creating the potential for significant 
environmental effects because it does not introduce new populations 
that may have an impact on the environment. Therefore, this rule is 
categorically excluded from further NEPA review.

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 amending its regulations relating to certain employment-
based immigrant and nonimmigrant visa programs. The amendments 
interpret existing law and change regulations 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 DHS 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 LPRs, while increasing the ability of those workers to seek 
promotions, accept lateral positions with current employers, change 
employers, or pursue other employment options.
    First, DHS amends its regulations consistent with certain worker 
portability and other provisions in AC21 and ACWIA. These amendments 
clarify and improve longstanding DHS policies and practices, previously 
articulated in DHS memoranda and precedent decisions. These amendments 
also implement sections of AC21 and ACWIA relating to certain foreign 
workers who have been sponsored for LPR status by their employers. In 
so doing, the rule provides a primary repository of governing rules for 
the regulated community and enhances consistency among DHS 
adjudicators. In addition, the rule clarifies several interpretive 
questions raised by AC21 and ACWIA.
    Second, and consistent with existing DHS authorities and the goals 
of AC21 and ACWIA, DHS is amending 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 final rule, among other things: Improves portability for 
certain beneficiaries of approved employment-based immigrant visa 
petitions by limiting the grounds for automatic revocation of petition 
approval; enhances job portability for such beneficiaries by improving 
their ability to retain their priority dates for use with subsequently 
approved employment-based immigrant visa petitions; establishes or 
extends 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 
provides 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 apply for 
employment authorization for a limited period. These and other changes 
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 provide greater stability and predictability for U.S. employers 
and avoid potential disruptions to their 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 changing its regulations governing the 
processing of applications for employment authorization to minimize the 
risk of any gaps in such authorization. These changes 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 removing 
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 provisions 
and their impacts.

[[Page 82476]]



               Table 2--Summary of Provisions and Impacts
------------------------------------------------------------------------
                                                     Expected impact of
         Provisions                  Purpose           the final rule
------------------------------------------------------------------------
Priority Date...............  Clarifies when a      Quantitative:
                               priority date is      Not
                               established for       estimated.
                               employment-based     Qualitative:
                               immigrant visa        Removes
                               petitions that do     ambiguity and sets
                               not require a labor   consistent priority
                               certification under   dates for affected
                               INA 203(b).           petitioners and
                                                     beneficiaries.
Priority Date Retention.....  Explains that         Quantitative:
                               workers may retain    Not
                               priority dates and    estimated.
                               transfer those       Qualitative:
                               dates to new and      Results in
                               subsequently          administrative
                               approved Form I-140   efficiency and
                               petitions, except     predictability by
                               when USCIS revokes    explicitly listing
                               approval of the       when priority dates
                               petition for:         are lost as the
                               Material error,       approval of the
                               fraud or willful      petitions that are
                               misrepresentation     revoked under these
                               of a material fact,   specific grounds
                               or revocation or      cannot be used as a
                               invalidation of the   basis for an
                               labor certification   immigrant visa.
                               accompanying the
                               petition.
                                                     Improves
                                                     the ability of
                                                     certain workers to
                                                     accept promotions,
                                                     change employers,
                                                     or pursue other
                                                     employment
                                                     opportunities.
Employment-Based Immigrant    Incorporates          Quantitative:
 Visa Petition Portability     statutory            Petitioners--
 Under 204(j).                 portability           Opportunity
                               provisions into       costs of time to
                               regulation.           petitioners for 1-
                                                     year range from
                                                     $126,598 to
                                                     $4,636,448.
                                                    DHS/USCIS--
                                                     Neutral
                                                     because the new
                                                     supplementary form
                                                     to the application
                                                     for adjustment of
                                                     status to permanent
                                                     residence will
                                                     formalize the
                                                     process for USCIS
                                                     requests for
                                                     evidence of
                                                     compliance with INA
                                                     204(j) porting.
                                                    Qualitative:
                                                    Applicants/
                                                     Petitioners--
                                                     Replaces,
                                                     through the
                                                     Supplement J
                                                     standardized form,
                                                     the need for
                                                     individuals to
                                                     submit job offer
                                                     and employment
                                                     confirmation
                                                     letters.
                                                     Provides
                                                     stability and job
                                                     flexibility to
                                                     certain individuals
                                                     with approved
                                                     employment-based
                                                     immigrant visa
                                                     petitions.
                                                     Implements
                                                     the clarifications
                                                     regarding ``same or
                                                     similar
                                                     occupational
                                                     classifications''
                                                     through the new
                                                     Supplement J.
                                                     Allows
                                                     certain foreign
                                                     workers to advance
                                                     and progress in
                                                     their careers.
                                                     Potential
                                                     increased employee
                                                     replacement costs
                                                     for employers.
                                                    DHS/USCIS--
                                                    
                                                     Administrative
                                                     efficiency.
                                                    
                                                     Standardized and
                                                     streamlined
                                                     process.
Employment Authorization for  Provisions allowing   Quantitative: Total
 Certain Nonimmigrants Based   certain               costs over 10-year
 on Compelling Circumstances.  nonimmigrant          period to
                               principal             applicants are:
                               beneficiaries, and    $731.1
                               their dependent       million for
                               spouses and           undiscounted costs.
                               children, to apply    $649.9
                               for employment        million at a 3%
                               authorization if      discounted rate.
                               the principal is a    $565.2
                               beneficiary of an     million at a 7%
                               approved EB-1, EB-    discounted rate.
                               2, or EB-3           Qualitative:
                               immigrant visa       Applicants--
                               petition while        Provides
                               waiting for his or    ability for
                               her immigrant visa    nonimmigrants who
                               to become             have been sponsored
                               available.            for LPR status to
                               Applicants must       change jobs or
                               demonstrate           employers when
                               compelling            compelling
                               circumstances         circumstances
                               justifying an         arise.
                               independent grant
                               of employment
                               authorization.
                                                    
                                                     Incentivizes such
                                                     skilled
                                                     nonimmigrant
                                                     workers
                                                     contributing to the
                                                     economy to continue
                                                     seeking LPR status.
                                                    
                                                     Nonimmigrant
                                                     principal workers
                                                     who take advantage
                                                     of the compelling
                                                     circumstances EAD
                                                     will lose their
                                                     current
                                                     nonimmigrant status
                                                     and may not be able
                                                     to adjust to LPR
                                                     status in the
                                                     United States.
                                                     Consular
                                                     processing imposes
                                                     potentially
                                                     significant costs,
                                                     risk and
                                                     uncertainty for
                                                     individuals and
                                                     their families as
                                                     well.
                                                    Dependents--
                                                     Allows
                                                     dependents to enter
                                                     labor market
                                                     earlier and
                                                     contribute to
                                                     household income.

[[Page 82477]]

 
90-Day Processing Time for    Eliminates            Quantitative:
 Employment Authorization      regulatory            Not
 Applications.                 requirement for 90-   estimated.
                               day adjudication     Qualitative:
                               timeframe and        Applicants--
                               issuance of interim-  Removing a
                               EADs. Adds            regulatory
                               provisions allowing   timeframe and
                               for the automatic     moving to one
                               extension of EADs     governed by
                               for up to 180 days    processing goals
                               for certain workers   could potentially
                               filing renewal        lead to longer
                               requests.             processing times
                                                     whenever USCIS is
                                                     faced with higher
                                                     than expected
                                                     filing volumes. If
                                                     such a situation
                                                     were to occur, this
                                                     could lead to
                                                     potential delays in
                                                     work employment
                                                     start dates for
                                                     first-time EAD
                                                     applicants until
                                                     approval is
                                                     obtained. However,
                                                     USCIS believes such
                                                     scenarios will be
                                                     rare and mitigated
                                                     by the automatic
                                                     extension provision
                                                     for renewal
                                                     applications which
                                                     will allow the
                                                     movement of
                                                     resources in such
                                                     situations.
                                                     Providing
                                                     the automatic
                                                     continuing
                                                     authorization for
                                                     up to 180 days for
                                                     certain renewal
                                                     applicants could
                                                     lead to less
                                                     turnover costs for
                                                     U.S. employers. In
                                                     addition, the
                                                     automatic extension
                                                     provision minimizes
                                                     the applicants'
                                                     risk of any gaps in
                                                     employment
                                                     authorization.
                                                    DHS/USCIS--
                                                     Streamlines
                                                     the application and
                                                     card issuance
                                                     processes.
                                                     Enhances
                                                     the ability to
                                                     ensure all national
                                                     security
                                                     verification checks
                                                     are completed.
                                                     Reduces
                                                     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    Not
 Employment-Based Immigrant    may remain valid      estimated.
 Visa Petitions.               despite withdrawal   Qualitative:
                               by the employer or    Allows
                               termination of the    beneficiary to
                               employer's business   retain priority
                               after 180 days or     date unless the
                               more of approval,     petition is revoked
                               or 180 days or more   for one of the
                               after the             reasons specified
                               associated            in final 8 CFR
                               application for       204.5(e)(2).
                               adjustment of         Affords
                               status has been       porting ability
                               filed.                under INA 204(j)
                                                     and extension of H-
                                                     1B status pursuant
                                                     to AC21 sections
                                                     104(c) and 106(a)
                                                     and (b), as well as
                                                     potential
                                                     eligibility for the
                                                     new compelling
                                                     circumstances EAD.
Period of Admission for       Nonimmigrants in      Quantitative:
 Certain Nonimmigrant          certain high-         Not
 Classifications.              skilled,              estimated.
                               nonimmigrant         Qualitative:
                               classifications may   Nonimmigrant Visa
                               be granted grace      Holders--
                               periods of up to 10   Assists the
                               days before and       beneficiary in
                               after their           getting
                               validity period,      sufficiently
                               and a grace period    settled such that
                               upon cessation of     he or she is
                               employment on which   immediately able to
                               the foreign           begin working upon
                               national's            the start of the
                               classification was    petition validity
                               based, for up to 60   period.
                               days or until the     Provides
                               end of their          time necessary to
                               authorized validity   wrap up affairs to
                               period, whichever     depart the country.
                               is shorter, during    Allows the
                               each authorized       beneficiary to
                               validity period.      maintain
                                                     nonimmigrant status
                                                     when faced with a
                                                     termination of
                                                     employment to wrap
                                                     up affairs, find
                                                     new employment, or
                                                     change to a
                                                     different
                                                     nonimmigrant
                                                     classification.
Portability of H-1B Status    Updates, improves,    Quantitative:
 Calculating the H-1B          and clarifies DHS     Not
 Admission Period Exemptions   regulations           estimated.
 Due to Lengthy Adjudication   consistent with      Qualitative:
 Delays per Country            policy guidance.      Formalizes
 Limitation Exemptions,                              existing DHS policy
 Employer Debarment and H-1B                         in the regulations,
 Whistleblower Provisions.                           which will give the
                                                     public access to
                                                     existing policy in
                                                     one location.
                                                     Clarifies
                                                     current DHS policy
                                                     that there is no
                                                     temporal limit on
                                                     recapturing time.

[[Page 82478]]

 
H-1B Licensing Requirements.  Expands the evidence  Quantitative:
                               USCIS will examine    Not
                               in cases where a      estimated.
                               state allows an      Qualitative:
                               individual without    Provides
                               licensure to fully    additional
                               practice the          flexibilities in
                               relevant occupation   obtaining necessary
                               under the             licensure while
                               supervision of        still permitting H-
                               licensed senior or    1B employment
                               supervisory           during the pendency
                               personnel in that     of state or local
                               occupation to         license
                               include evidence of   applications.
                               compliance with       Helps to
                               state requirements.   relieve the
                               Additionally, USCIS   circular
                               is expanding the      predicament an H-1B
                               possible situations   beneficiary may
                               in which it may       encounter.
                               approve an H-1B       May
                               petition even         minimally increase
                               though the            time burden for the
                               beneficiary cannot    petitioner to
                               obtain a license      gather information
                               for certain           and send it to
                               technical reasons.    USCIS. However, DHS
                                                     anticipates that
                                                     the benefits to the
                                                     petitioner and
                                                     beneficiary exceed
                                                     the opportunity
                                                     costs of time.
                                                     May
                                                     increase
                                                     opportunity costs
                                                     of time for USCIS
                                                     adjudicators to
                                                     evaluate additional
                                                     evidence in such
                                                     types of cases.
                                                     However, DHS does
                                                     not anticipate that
                                                     the opportunity
                                                     costs of time will
                                                     be so substantial
                                                     as to warrant
                                                     additional hiring
                                                     of staff or cause
                                                     significant
                                                     adjudication
                                                     delays.
Exemptions to the H-1B        Codifies definition   Quantitative:
 Numerical Cap, Revised        of ``institution of   Not
 Definition of ``Related or    higher education''    estimated.
 Affiliated Nonprofit          and adds a broader   Qualitative:
 Entity'' in the ACWIA Fee     definition of         Clarifies
 Context, and Expanded         ``related or          the requirements
 Interpretation of             affiliated            for a nonprofit
 ``Governmental Research       nonprofit entity.''   entity to establish
 Organizations.''              Also, revises the     that it is related
                               definition of         to or affiliated
                               ``related or          with an institution
                               affiliated            of higher
                               nonprofit entity''    education.
                               for purposes of the   Better
                               ACWIA fee to          reflects current
                               conform it to the     operational
                               new definition of     realities for
                               the same term for H-  institutions of
                               1B numerical cap      higher education
                               exemption. Expands    and how they
                               the interpretation    interact with, and
                               of ``governmental     sometimes rely on,
                               research              nonprofit entities.
                               organizations'' for   Clarifies
                               purposes of the       the interpretation
                               ACWIA fee and         of governmental
                               aligns definitions    research
                               for H-1B cap and      organizations to
                               fee exemptions.       include federal,
                                                     state, and local
                                                     governmental
                                                     organizations.
                                                     May expand
                                                     the numbers of
                                                     petitioners that
                                                     are cap exempt and
                                                     thus allow certain
                                                     employers greater
                                                     access to H-1B
                                                     workers.
------------------------------------------------------------------------

    As required by OMB Circular A-4, Table 2 presents the prepared 
accounting statement showing the expenditures associated with this 
regulation.\161\ These updated expenditures take into account all of 
the changes made to the regulation in addition to the updated cost 
estimates since publication of the proposed rule. The main benefits of 
the regulation remain the same: 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 DHS policy 
related to affected classifications.
---------------------------------------------------------------------------

    \161\ 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 (RIA,
              Category                     Primary estimate             Minimum estimate            Maximum estimate              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 and retain immigrant and     RIA.
                                      nonimmigrant workers, provides greater stability and job flexibility for such
                                      workers, and increases transparency and consistency in the application of DHS
                                      policy related to affected classifications
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          Costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized monetized costs for 10-   (3%) $78.5.................  $76.7......................  $80.9.....................  RIA.
 year period starting in 2016 to     (7%) $82.8.................  $80.9......................  $85.1.....................  RIA.
 2025 (discount rate in
 parenthesis).

[[Page 82479]]

 
Annualized quantified, but           N/A........................  N/A........................  N/A.......................  RIA.
 unmonetized, costs.
                                    --------------------------------------------------------------------------------------
Qualitative (unquantified) costs...  Potential turnover cost due to enhanced job mobility of beneficiaries of              RIA.
                                      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. This analysis can be found by searching for RIN 1615-
AC05 on regulations.gov.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA), as amended by the 
Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 
104-121, 5 U.S.C. 601-612 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.\162\ 
Consequently, any indirect impacts from a rule to a small entity are 
not costs for RFA purposes.
---------------------------------------------------------------------------

    \162\ 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 made by DHS have direct effects on 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, because the 
petitions are filed by sponsoring employers, 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 in cases in which that employee ports to a same or a similar 
occupation with another employer. Therefore, DHS has chosen to examine 
the indirect impact of this rule on small entities as well. The 
analysis of the indirect effects of these changes on small entities 
follows.
1. Final Regulatory Flexibility Analysis
    Small entities that can incur additional indirect costs by this 
rule are those that file and pay fees for certain immigration benefit 
petitions, including Form I-140 petitions. 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 this rule 
directly affect 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 this rule will have immediate indirect effects on U.S. 
employers. Employers will be indirectly affected by employee turnover-
related costs as beneficiaries of employment-based immigrant visa 
petitions take advantage of this rule. Therefore, DHS is choosing to 
discuss these indirect effects in this final regulatory flexibility 
analysis.
i. A Statement of the Need for, and Objectives of, the Rule
    The purpose of this action, in part, is to amend regulations 
affecting certain employment-based immigrant and nonimmigrant 
classifications in order to conform them to provisions of AC21 and 
ACWIA. The rule also seeks to provide 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, 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.

[[Page 82480]]

ii. A Statement of the Significant Issues Raised by the Public Comments 
in Response to the Initial Regulatory Flexibility Analysis, a Statement 
of the Assessment of the Agency of Such Issues, and a Statement of Any 
Changes Made in the Proposed Rule as a Result of Such Comments
    DHS published the NPRM along with the Initial Regulatory 
Flexibility Analysis (IRFA) on December 31, 2015 (80 FR 81899) with the 
comment period ending February 29, 2016. During the 60-day comment 
period, DHS received 27,979 comments from interested individuals and 
organizations. DHS received numerous comments that referred to aspects 
of the economic analysis presented with the NPRM. The comments, 
however, did not result in revisions to the economic analysis in the 
final rule that are relevant to the analysis of effects on small 
businesses, small organizations, and small governmental jurisdictions 
presented in this FRFA. DHS received few comments that referred 
specifically to the IRFA. DHS addresses these comments below.
    Commenters only indirectly mentioned the IRFA by mentioning the 
impact of the form, Supplement J, on potential employers who may be 
small start-ups or small businesses. Commenters suggested that many of 
these small start-ups hire high-skilled foreign workers to stay 
competitive in high-technology industries in order to compete globally, 
and they believed that such hiring increased job opportunities for 
native-born U.S. citizens as well. Commenters expressed concern that 
Supplement J is an unnecessary burden, especially for small business 
owners and startups, and commented that it will not help to increase 
job portability.
    DHS appreciates these viewpoints and carefully considered the 
impact of Supplement J throughout this rulemaking, especially to small 
entities. DHS reaffirms its belief expressed in the RIA for the NPRM 
and again in the RIA for the final rule that Supplement J will clarify 
the process to port to another job and increase flexibility to high-
skilled workers so they can advance in their careers and progress in 
their occupations. As explained in the PRA, completing the Supplement J 
requires approximately 60 minutes. In the Initial Regulatory 
Flexibility Analysis, DHS examined the indirect impact of this rule on 
small entities as this rule does not directly impose costs on small 
entities. DHS recognizes that this rule imposes indirect costs on small 
entities because these provisions would affect beneficiaries of 
employment-based immigrant visa petitions. If those beneficiaries take 
certain actions in line with the rule that provide greater flexibility 
and job mobility, then there would be an immediate indirect impact on 
the current sponsoring U.S. employers. DHS reaffirms that the addition 
of Supplement J may negatively impact employers in the form of employee 
turnover costs and some additional burden.
iii. The Response of the Agency to Any Comments Filed by the Chief 
Counsel for Advocacy of the Small Business Administration in Response 
to the Proposed Rule, and a Detailed Statement of Any Change Made to 
the Proposed Rule in the Final Rule as a Result of the Comments
    No comments were filed by the Chief Counsel for Advocacy of the 
Small Business Administration.
iv. A Description of and an Estimate of the Number of Small Entities to 
Which the Rule Will Apply or an Explanation of Why No Such Estimate Is 
Available
    DHS conducted a statistically valid sample analysis of employment-
based immigrant visa petitions to determine the maximum potential 
number of small entities indirectly affected by this rule when a high-
skilled worker who has an approved employment-based immigrant visa 
petition, and an application for adjustment of status that has been 
pending 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 three other open-access, free databases of public and private 
entities--Manta, Cortera, and Guidestar--to determine the North 
American Industry Classification System (NAICS) code, revenue, and 
employee count for each entity.\163\ In order to determine the size of 
a business, 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.
---------------------------------------------------------------------------

    \163\ 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 a 12-month period, from September 2014 to August 2015, of 
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 101,245 employment-
based immigrant visa petitions filed, but only 23,284 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 23,284 
entities, DHS used the standard statistical formula to determine that a 
minimum sample size of 378 entities was necessary. DHS created a sample 
size greater than the 378 minimum necessary in order to increase the 
likelihood that our matches would meet or exceed the minimum required 
sample. Of the 514 entities sampled, 393 instances resulted in entities 
defined as small. Of the 393 small entities, 290 entities were 
classified as small by revenue or number of employees. The remaining 
103 entities were classified as small because information was not found 
(either no petitioner name was found or no information was found in the 
databases). Table 3 shows the summary statistics and results of the 
small entity analysis of Form I-140 petitions.

Table 3--Summary Statistics and Results of Small Entity Analysis of Form
                             I-140 Petitions
------------------------------------------------------------------------
                                                           Proportion of
                Parameter                    Quantity       sample (%)
------------------------------------------------------------------------
Population--petitions...................         101,245
Population--unique entities.............          23,284
Minimum Required Sample.................             378
Selected Sample.........................             514           100.0
Entities Classified as ``Not Small'':
    by revenue..........................              99            19.2

[[Page 82481]]

 
    by number of employees..............              22             4.3
Entities Classified as ``Small'':
    by revenue..........................             287            55.9
    by number of employees..............               3             0.6
    because no petitioner name found....              84            16.3
    because no information found in                   19             3.7
     databases..........................
        Total Number of Small Entities..             393            76.5
------------------------------------------------------------------------
Source: USCIS analysis.

v. A Description of the Projected Reporting, Recordkeeping and Other 
Compliance Requirements of the Rule, Including an Estimate of the 
Classes of Small Entities Which Will Be Subject to the Requirement and 
the Type of Professional Skills Necessary for Preparation of the Report 
or Record
    The 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 certain flexibility provisions herein (including porting 
to new sponsoring employers or pursuing 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 28,309 
individuals who are eligible to port to new employment 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 
that 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 
waiting to adjust status based on petitions filed by original 
sponsoring employers. The estimates presented also do not represent 
employee turnover costs to original sponsoring employers, 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 employment authorization based 
on compelling circumstances.
    The 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 amendments will affect at 
this time, the exact effect on small entities is not clear, though some 
positive effect should be anticipated.
vi. A Description of the Steps the Agency Has Taken To Minimize the 
Significant Economic Impact on Small Entities Consistent With the 
Stated Objectives of Applicable Statutes, Including a Statement of the 
Factual, Policy, and Legal Reasons for Selecting the Alternative 
Adopted in the Final Rule and Why Each One of the Other Significant 
Alternatives to the Rule Considered by the Agency Which Affect the 
Impact on Small Entities Was Rejected
    This rule does not impose direct costs on small entities. 
Therefore, DHS has not proposed any measures to minimize direct effects 
on small entities. The final rule may indirectly affect small entities 
because the provisions would affect beneficiaries of employment-based 
immigrant visa petitions. If those beneficiaries take actions in line 
with certain proposals that provide greater flexibility and job 
mobility, then there is 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 limited the eligibility for employment 
authorization to beneficiaries who are able to demonstrate compelling 
circumstances, and restricted the 204(j) portability provisions to 
those seeking employment within the same or a similar occupational 
classification, DHS did not believe it was necessary to pursue this 
alternative 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.

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 million in 1995 adjusted for inflation to 2014 
levels by the Consumer Price Index for All Urban Consumers is $155 
million. This rule exceeds the $100 million expenditure threshold in 
the first year of implementation (adjusted for inflation) and therefore 
DHS is providing this UMRA analysis.
1. An Identification of the Provision of Federal Law Under Which the 
Rule Is Being Promulgated
    The authority of the Secretary of Homeland Security (Secretary) for 
these regulatory amendments is found in various sections of the 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

[[Page 82482]]

issuing the final 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 final rule is found in Section II, 
Subpart B.
2. A Qualitative and Quantitative Assessment of the Anticipated Costs 
and Benefits of the Federal Mandate, Including the Costs and Benefits 
to State, Local, and Tribal Governments or the Private Sector, as Well 
as the Effect of the Federal Mandate on Health, Safety, and the Natural 
Environment
    The two major provisions of this rule for economic analysis 
purposes provide job flexibility through INA 204(j) portability and job 
flexibility through employment authorization to a limited number of 
employment-authorized nonimmigrants in compelling circumstances. These 
provisions do not directly impose any additional Federal mandates on 
state, local, and tribal governments, in the aggregate, or by the 
private sector. However, employers who petition on behalf of applicants 
could potentially experience some employee turnover costs should these 
applicants choose to obtain the compelling circumstances EAD or choose 
to port to another employer. DHS recognizes that these provisions could 
place additional burdens on the state and private sector in these 
circumstances. DHS specifically considered the situation where a public 
institution of higher education filed a petition on behalf of a high 
skilled worker and that high skilled worker utilized porting under 
section 204(j) of the INA to move to another employer. The 
flexibilities provided as a result of this rule would place additional 
costs and burdens on the states in this scenario and other similar 
scenarios. However, DHS reiterates that these are not required 
immigration benefits. State and private sector employers make the cost-
benefit decisions of whether to expend finances to petition for foreign 
workers. DHS presents the impacts of these provisions more fully in the 
RIA found with this final rule on www.regulations.gov.
    DHS does not believe that this rule will have any impact on health 
or safety. The impact of this rule on environmental issues is discussed 
more fully in Review under the National Environmental Policy Act 
(NEPA), Section Q, subpart 6 of this final rule.
3. Estimates by the Agency, if and to the Extent That the Agency 
Determines That Accurate Estimates Are Reasonably Feasible of Future 
Compliance Costs of the Federal Mandate and Any Disproportionate 
Budgetary Effects of the Federal Mandate Upon Any Particular Regions of 
the Nation or Particular State, Local, or Tribal Governments, Urban or 
Rural or Other Types of Communities, or Particular Segments of the 
Private Sector
    DHS has provided compliance costs of the main provisions that may 
indirectly trigger Federal mandates in the full RIA discussion of each 
provision published with this final rule as well as in the FRFA. DHS 
reiterates that state and private sector employers make the cost-
benefit decisions of whether to expend finances to petition for foreign 
workers and that these provisions are not mandatory requirements.
4. Estimates by the Agency of the Effect on the National Economy, Such 
as the Effect on Productivity, Economic Growth, Full Employment, 
Creation of Productive Jobs, and International Competitiveness of 
United States Goods and Services, if and to the Extent That the Agency 
in Its Sole Discretion Determines That Accurate Estimates Are 
Reasonably Feasible and That Such Effect Is Relevant and Material
    DHS has provided discussions of the effect of this rule on the 
economy in Section Q of this final rule.
5. A Description of the Extent of the Agency's Prior Consultation With 
Elected Representatives (Under Section 204) of the Affected State, 
Local, and Tribal Governments
    DHS has not consulted with elected representatives of the affected 
State, local, and tribal governments as the Federal mandates imposed by 
this rule are voluntary and DHS cannot predict which States or private 
sector entities will apply for these benefits in the future.

D. Small Business Regulatory Enforcement Fairness Act of 1996

    This final 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 regulation, DHS has prepared a Final Regulatory 
Flexibility 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 does 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 final rule makes 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 revises this collection by revising the 
instructions to Form I-765 to include information for the newly amended 
group of applicants (beneficiaries of approved Form I-140 petitions who 
are in the United States in E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant 
status, 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 final 8 CFR 274a.12(c)(35). Their dependent spouses 
and children who are present in the United States in nonimmigrant 
status are also eligible to obtain employment authorization under 8 CFR 
274a.12(c)(36), provided that the principal foreign national has been 
granted employment authorization. USCIS is also amending Form I-765 to 
include Yes/No questions requiring these applicants to disclose certain 
criminal convictions. USCIS estimates an upper-bound average of 213,164 
respondents will request employment authorization as a result of the 
changes in this rule in the first 2 years. This average estimate is 
derived from a maximum estimate of 361,766 new

[[Page 82483]]

respondents who may file applications for employment authorization 
documents in year 1 and a maximum estimate of 64,561 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 
the Form I-140 petition, 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's revised estimate 
of the number of respondents for this collection of information.
    4. The Petition for a 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 cannot predict the number of new respondents that would 
file petitions for foreign workers as a result of the changes in 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 applicant for adjustment 
of status 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 the Form I-
485 application. Supplement J replaces 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 also serves as an important anti-fraud measure, and 
it allows USCIS to validate employers extending new permanent job 
offers to individuals under section 204(j). USCIS estimates that 
approximately 28,309 new respondents will file Supplement J as a result 
of the changes made 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 need to file 
Supplement J to request job portability under section 204(j). There is 
no change to the estimated annual burden hours as a result of this 
revision as a result of the changes in this rule.
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;
     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 visa 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 employers to 
petition for workers to come to the United States 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

[[Page 82484]]

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 the Form I-485 application. 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 to 
confirm that the job offer described in the Form I-140 petition is 
still bona fide, or if applicable to request job portability pursuant 
to section 204(j) of the INA.
    (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] 2,136,583 responses related to Form I-765 at 3.42 hours per 
response;
    [cir] 250,000 responses related to Form I-765WS at .50 hours per 
response;
    [cir] 405,067 responses related to Biometrics services at 1.17 
hours; and
    [cir] 2,136,583 responses related to Passport-Style Photographs at 
.50 hours per response.
     Form I-140:
    [cir] 213,164 respondents at 1.08 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] 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: 8,974,364 hours.
     Form I-140: 230,217 hours.
     Form I-129: 1,631,400 hours.
     Form I-485: 5,238,100 hours.
    (7) An estimate of the annual public burden (monetized) associated 
with these collections:
     Form I-765/I-765WS: $649,521,330.
     Form I-140: $123,642,620.
     Form I-129: $73,751,280.
     Form I-485: $239,349,173.
    DHS has considered the public comments received in response to the 
NPRM, published in the Federal Register at 80 FR 81899 on December 31, 
2015. DHS's responses to these comments appear in this final rule and 
in appendix to the supporting statements that accompany this rule and 
can be found in the docket. USCIS has submitted the supporting 
statements to OMB as part of its request for the approval of the 
revised information collection instruments.

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 amends chapter I of title 8 of the Code of Federal 
Regulations as follows:

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 paragraphs (d), (e), and (n)(3); and
0
b. 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

[[Page 82485]]

approved petition for any subsequently filed petition for any 
classification under section 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 section 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 based on a 
material 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, 
including the periods authorized by Sec.  214.1(l)(l) and (2), as well 
as any other periods of admission authorized by this chapter before a 
validity period begins or after the expiration of a validity period, on 
the date the application for employment authorization (Form I-765) is 
filed;
    (ii) An immigrant visa is not authorized for issuance to the 
principal beneficiary based on his or her priority date on the date 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) Eligibility for renewal of employment authorization. An alien 
may be eligible to renew employment authorization granted under 
paragraph (p) of this section, upon submission of a new application 
before the expiration of such employment authorization, if:
    (i) He or she is the principal beneficiary of an approved immigrant 
petition for classification under section 203(b)(1), 203(b)(2) or 
203(b)(3) of the Act and either:
    (A) An immigrant visa is not authorized for issuance to the 
principal beneficiary based on his or her priority date on the date the 
application for employment authorization, (Form I-765) is filed; and 
USCIS determines, as a matter of discretion that the principal 
beneficiary demonstrates 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 Department 
of State Visa Bulletin in effect on the date the application for 
employment authorization (Form I-765), is filed. For example, if the 
Department of State Visa Bulletin in effect on the date the renewal 
application is filed indicates immigrant visas are authorized for 
issuance for the applicable preference category and country of 
chargeability to individuals with priority dates earlier than November 
1, 2000, USCIS may grant a renewal to a principal beneficiary whose 
priority date is on or between October 31, 1999 and October 31, 2001; 
or
    (ii) He or she is a family member, as described under paragraph 
(p)(2) of this section, of a principal beneficiary granted a renewal of 
employment authorization under paragraph (p)(3)(i) that remains valid, 
except that the family member need not be maintaining nonimmigrant 
status at the time the principal beneficiary applies for renewal of 
employment authorization under paragraph (p) of this section. A family 
member may file an application to renew employment authorization 
concurrently with an application to renew employment authorization 
filed by the principal beneficiary or while such application by the 
principal beneficiary is pending, but the family member's renewal 
application cannot be approved unless the principal beneficiary's 
application is granted. The validity period of a renewal of employment 
authorization granted to family members may not extend beyond the 
validity period of the renewal of employment authorization granted to 
the principal beneficiary.
    (4) Application for employment authorization. To request employment 
authorization, an eligible applicant described in paragraph (p)(1), 
(2), or (3) of this section must file an application for employment 
authorization (Form I-765), with USCIS, in accordance with 8 CFR 
274a.13(a) and the form instructions. 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 for employment authorization, including renewal of employment 
authorization, under this paragraph if the alien has been convicted of 
any felony or two or more misdemeanors.

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.


[[Page 82486]]



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, unless an associated adjustment of status application has 
been pending for 180 days or more. A petition that is withdrawn 180 
days or more after its approval, or 180 days or more after the 
associated adjustment of status application has been filed, 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 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 under section 203(b)(1)(B), 
203(b)(1)(C), 203(b)(2), or 203(b)(3) of the Act, unless an associated 
adjustment of status application has been pending for 180 days or more. 
If a petitioning employer's business terminates 180 days or more after 
petition approval, or 180 days or more after an associated adjustment 
of status application has been filed, 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 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 or otherwise provided such status 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 10 days 
after the validity period ends. 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, O-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 a cessation of the employment on which the 
alien's classification was based, for up to 60 consecutive days or 
until the end of the authorized validity period, whichever is shorter, 
once during each authorized validity period. DHS may eliminate or 
shorten this 60-day period as a matter of discretion. Unless otherwise 
authorized under 8 CFR 274a.12, the alien may not work during such a 
period.
    (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.

0
7. Section 214.2 is amended by:
0
a. Adding paragraph (h)(2)(i)(H);
0
b. Revising paragraph (h)(4)(v)(C);
0
c. Adding paragraph (h)(8)(ii)(F);
0
d. Removing the fifth sentence from paragraph (h)(9)(iv);
0
e. Revising paragraph (h)(13)(i)(A);
0
f. Adding paragraphs (h)(13)(iii)(C) through (E);
0
g. Revising paragraphs (h)(19)(i) introductory text, (h)(19)(ii), and 
(h)(19)(iii)(B).
0
h. In paragraph (h)(19)(iii)(C):
0
i. Revising the second sentence; and
0
 ii. Removing the period at the end of the paragraph and adding a 
semicolon in its place;
0
i. Adding paragraphs (h)(19)(iii)(D) and (E);
0
j. Revising paragraph (h)(19)(v);
0
k. Removing paragraph (h)(19)(vi);
0
l. Redesignating paragraph (h)(19)(vii) as paragraph (h)(19)(vi) and 
revising newly redesignated paragraph (h)(19)(vi); and
0
m. Adding paragraph (h)(20).
    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 nonfrivolous 
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 in, or 
otherwise provided, H-1B nonimmigrant status;
    (ii) On whose behalf a nonfrivolous 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.
    (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)(1)(ii) of this section. If otherwise eligible

[[Page 82487]]

under paragraph (h)(2)(i)(H) of this section, such alien may begin 
working in a subsequent position upon the filing of another 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, and evidence that the 
petitioner is complying with state requirements. 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, was authorized for 
employment in the United States, or met a similar technical 
requirement; and
    (ii) The petitioner demonstrates, through evidence from the state 
or local licensing authority, that the only obstacle to the issuance of 
a license to the beneficiary is the lack of a Social Security number, a 
lack of employment authorization in the United States, or a failure to 
meet a similar technical requirement that precludes the issuance of the 
license to an individual who is not yet in H-1B status. 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 substantive requirements have been met. 
The alien must have filed an application for the license in accordance 
with applicable state and local rules and procedures, provided that 
state or local rules or procedures do not prohibit the alien from 
filing the license application without provision of a Social Security 
number or proof of employment authorization or without meeting a 
similar technical requirement.
    (3) An H-1B petition filed 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 it satisfies any 
one of the following conditions:
    (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 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 or 
education, and a fundamental activity 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 section 
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 Act. When petitioning for concurrent cap-
subject H-1B employment, the petitioner must demonstrate that the H-

[[Page 82488]]

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 meaningfully interrupts the 
alien's stay in H-1B status and the reason for the alien's absence. 
Accordingly, such remaining time may be recaptured in a subsequent H-1B 
petition on behalf of the alien, at any time before the alien uses the 
full period of 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), 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, whether or not 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 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 paragraph (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 date the period of 
admission authorized under this exemption will take effect. 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 of validity exceed the limits specified by paragraph (h)(9)(iii) 
of this section. Time remaining to the beneficiary under the maximum 
period of admission described at section 214(g)(4) of the Act may 
include any request to recapture unused H-1B, L-1A, or L-1B time spent 
outside of the United States.
    (6) Petitioners seeking exemption. The H-1B petitioner need not be 
the employer that filed the application for

[[Page 82489]]

labor certification or immigrant visa petition that is used to qualify 
for this exemption.
    (7) Subsequent exemption approvals after the 7th year. The 
qualifying 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 
nonfrivolous 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 alien is ineligible for the lengthy adjudication delay 
exemption under paragraph (h)(13)(iii)(D) of this section if the alien 
is the beneficiary of an approved petition under section 203(b) of the 
Act and fails to file an adjustment of status application or apply for 
an immigrant visa within 1 year of an immigrant visa being authorized 
for issuance based on his or her preference category and country of 
chargeability. 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 or more after approval.
    (E) Per-country limitation exemption from section 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 section 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 section 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.
    (1) Validity periods. USCIS may grant validity periods for 
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 paragraph (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 in 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 section 
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) * * *
    (i) A United States employer (other than an exempt employer defined 
in paragraph (h)(19)(iii) of this section, or an employer filing a 
petition described in paragraph (h)(19)(v) of this section) who files a 
Petition for Nonimmigrant Worker (Form I-129) must include the 
additional American Competitiveness and Workforce Improvement Act 
(ACWIA) fee referenced in Sec.  103.7(b)(1) of this chapter, if the 
petition is filed for any of the following purposes:
* * * * *
    (ii) A petitioner must submit with the petition the ACWIA fee, and 
any other applicable fees, in accordance with Sec.  103.7 of this 
chapter, and form instructions. Payment of all applicable fees must be 
made at the same time, but the petitioner may submit separate checks. 
USCIS will accept payment of the ACWIA fee only from the United States 
employer or its representative of record, as defined in 8 CFR 103.2(a) 
and 8 CFR part 292.
    (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 it satisfies any one of the following 
conditions:
    (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;
    (3) The nonprofit entity is attached to an institution of higher 
education as a member, branch, cooperative, or subsidiary; or
    (4) The nonprofit entity has 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 or 
education, and a fundamental activity of the nonprofit entity is to 
directly contribute to the research or education mission of the 
institution of higher education;
    (C) * * * A governmental research organization is a federal, state, 
or local entity whose primary mission is the performance or promotion 
of basic research and/or applied research. * * *
    (D) A primary or secondary education institution; or
    (E) A nonprofit entity which engages in an established curriculum-
related clinical training of students registered at an institution of 
higher education.
* * * * *
    (v) Filing situations where the American Competitiveness and 
Workforce Improvement Act of 1998 (ACWIA) fee is not required. The 
ACWIA fee is not required if:
    (A) The petition is an amended H-1B petition that does not contain 
any requests for an extension of stay;

[[Page 82490]]

    (B) The petition is an H-1B petition filed for the sole purpose of 
correcting a Service error; or
    (C) The petition is the second or subsequent request for an 
extension of stay filed by the employer regardless of when the first 
extension of stay was filed or whether the ACWIA fee was paid on the 
initial petition or the first extension of stay.
    (vi) ACWIA fee exemption evidence. (A) Employer claiming to be 
exempt. An employer claiming to be exempt from the ACWIA fee must file 
a Petition for Nonimmigrant Worker (Form I-129), in accordance with the 
form instructions, including supporting evidence establishing that it 
meets one of the exemptions described at paragraph (h)(19)(iii) of this 
section. A United States employer claiming an exemption from the ACWIA 
fee on the basis that it is a non-profit research organization must 
submit evidence that it has tax exempt status under the Internal 
Revenue Code of 1986, section 501(c)(3), (c)(4) or (c)(6), 26 U.S.C. 
501(c)(3), (c)(4) or (c)(6). All other employers claiming an exemption 
must submit a statement describing why the organization or entity is 
exempt.
    (B) Exempt filing situations. Any non-exempt employer who claims 
that the ACWIA fee does not apply with respect to a particular filing 
for one of the reasons described in paragraph (h)(19)(v) of this 
section must indicate why the ACWIA fee is not required.
    (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 that employer's labor condition 
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 Sec.  214.1(c)(4) and 8 
CFR 248.1(b).
* * * * *

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 Form I-485 
Supplement J, with any supporting material and credible documentary 
evidence, in accordance with the form instructions 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 offered 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 qualifying immigrant visa petition:
    (A) Has already been approved; or
    (B) Is pending when the beneficiary notifies USCIS of a new job 
offer 180 days or more after the date the alien's adjustment of status 
application was filed, and the petition is subsequently approved:
    (1) Adjudication of the pending petition shall be without regard to 
the requirement in 8 CFR 204.5(g)(2) to continuously establish the 
ability to pay the proffered wage after filing and until the 
beneficiary obtains lawful permanent residence; and
    (2) The pending petition will be approved if it was eligible for 
approval at the time of filing and until the alien's adjustment of 
status application has been pending for 180 days, unless approval of 
the qualifying immigrant visa petition at the time of adjudication is 
inconsistent with a requirement of the Act or another applicable 
statute; and
    (iii) The approval of the qualifying petition has not been revoked.
    (3) 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) 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-

[[Page 82491]]

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, 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) 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), 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 individual'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. Adding a sentence to the end of paragraph (b)(9);
0
b. Adding and reserving paragraphs (c)(27) through (34); and
0
 c. Adding paragraphs (c)(35) and (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 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 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 or as announced by 
USCIS on its Web site.
* * * * *
    (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) 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, or during the filing period described in the applicable 
Federal Register notice regarding procedures for obtaining Temporary 
Protected Status-related EADs;
    (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 (d) 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 will automatically terminate the earlier of up to 180 days 
after the expiration date of the Employment Authorization Document 
(Form I-766), or upon issuance of notification of a decision denying 
the renewal request. Nothing in paragraph (d) of this section will 
affect DHS's ability to otherwise terminate any employment 
authorization or Employment Authorization Document, or extension period 
for such employment or document, by written notice to the applicant, by 
notice to a class of aliens published in the Federal Register, or as 
provided by statute or regulation including 8 CFR 274a.14.

[[Page 82492]]

    (4) Unexpired Employment Authorization Documents. An Employment 
Authorization Document (Form I-766) that has expired on its face is 
considered unexpired when combined with a Notice of Action (Form I-
797C), which demonstrates that the requirements of paragraph (d)(1) of 
this section have been met.

Jeh Charles Johnson,
Secretary.
[FR Doc. 2016-27540 Filed 11-17-16; 8:45 am]
 BILLING CODE 9111-97-P