USCIS Publishes Proposed Rules Affecting Highly Skilled Immigrants and Nonimmigrants

The United States Citizenship and Immigration Services (USCIS) has published proposed rules that would affect certain employment based immigrant and nonimmigrant visa programs. The public has until February 29, 2016, to submit comments.

The proposed rules amend existing regulations to incorporate USCIS policies that have been put in place since October 2000, the date of enactment of the America Competitiveness in the Twenty First Century Act (AC21). To date, the first rules that USCIS has proposed for AC21 would do the following:

  • Clarify that a foreign national’s place in line waiting for a visa number, known as a Priority Date, is established on the date that a labor certification is filed with the Department of Labor. If no labor certification is needed, the priority date is the date on which USCIS receives the employer’s petition properly signed, together with the required fee.
  • State that employment based petitions filed in the EB-1, EB-2 or EB-3 category provide a foreign national with a Priority Date for any subsequently filed EB-1, EB-2 or EB-3 petition, and if multiple immigrant visa petitions are filed for the same person, the foreign national beneficiary is entitled to the earliest priority date.
  • Clarify that a Priority Date on an employment based immigrant visa petition is lost when USCIS revokes the petition for fraud or willful misrepresentation, or upon DOL revocation of the accompanying labor certification. Unless revoked, an employment-based petition is valid indefinitely.
  • Provide employment authorization eligibility for EB-1, EB-2 or EB-3 beneficiaries if four conditions are met: 1) Their petition has been approved; 2) Their status is E-3, H-1B, H-1b1, O-1 or L-1; 3) No immigrant visa number is available in the category sought; and 4) USCIS chooses to exercise its discretion based on the person’s showing of compelling circumstances. Spouses can obtain employment authorization, too, if the principal beneficiary has been granted employment authorization.
  • Provide a regulatory 10-day grace period to depart at the conclusion of their authorized stay in E-1, E-2 E-3, H-1B, L1 or TN classifications, and provide foreign nationals in any of those classifications who cease to continue their employment a one-time period of 60 days without losing status. Such persons remain eligible to file an extension petition during that period.
  • Eliminate the regulatory requirement to adjudicate an Employment Authorization Document (EAD) within 90 days of filing, eliminate the current regulatory requirement that USCIS issue interim an EAD when EAD adjudication is delayed, and provide an automatic extension of EADs for up to 180 days for an applicant who has filed to renew his or her EAD.