The Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers rule was published in the Federal Register today. This significant rule codifies long-standing but unofficial agency practices under the American Competitiveness in the Twenty-First Century Act of 2000 (“AC21”) and establishes a variety of new provisions to further streamline business immigration processes, including the following:

  • Provides guidance regarding the validity of approved I-140 immigrant petitions in the EB-1, EB-2, and EB-3 preference categories for purposes of priority date retention, H-1B extensions beyond the six year limit, and I-140 portability.
  • Creates an employment authorization category for individuals who are the beneficiaries of approved I-140 petitions and subject to visa backlogs (and family members), but only where very limited “compelling circumstances” exist.
  • Establishes a 60 day “grace period” for certain individuals who have stopped working for their sponsored employer.
  • Codifies the eligibility requirements for H-1B portability under AC21, and clarifies the specific time periods that employment is authorized.
  • Clarifies filing procedures for certain H-1B workers who require an occupational license.
  • Defines certain categories of “cap exempt” H-1B organizations and requirements for H-1B workers employed “at” a qualifying organization, and clarifies certain aspects of concurrent cap-exempt/cap-subject H-1B employment.
  • Codifies requirements for recapturing H-1B time and extending H-1B status beyond the normal six year limit.
  • Provides added flexibility for changes in employment by persons with pending employment-based Adjustment of Status applications.
  • Provides an automatic 180 day extension of certain Employment Authorization Documents (EAD) while a renewal application is pending, and removes the requirement that USCIS adjudicate EAD applications within 90 days.

This rule goes into effect on January 17, 2017. Our attorneys will continue to monitor the implementation of the rule and post updates as they become available. If you have questions about how this rule may impact the employees sponsored by your business, please contact us.