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Proposed Regulations Would Clarify Rules Regarding Employment-Based Immigrant Visas

Joergelman [Public domain, CC0 1.0 (], via PixabayThe Department of Homeland Security (DHS), which oversees petitions for employment-based immigrant and nonimmigrant visas through U.S. Citizenship and Immigration Services (USCIS), has issued a notice of proposed rulemaking (NPRM) intended to clarify various aspects of the employment-based visa system. 80 Fed. Reg. 81899 (Dec. 31, 2015). The agency is currently accepting public comments through February 29, 2016, after which it may issue a revised NPRM or a final rule.

Among many other changes, the new rule would affect the first three preference categories of employment-based immigrant visas (EB-1, EB-2, and EB-3) and the H-1B specialty worker nonimmigrant visa program by amending the rules implementing the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), Pub. L. 106-313, 114 Stat. 1251. Congress enacted AC21 in part to facilitate immigrant and nonimmigrant visas for various highly skilled workers. The NPRM includes rule changes that, according to DHS, would better facilitate several goals established by these statutes.

The annual number of employment-based visas that may be issued to nationals of any one country is capped at seven percent of the total number of visas. 8 U.S.C. § 1152(a)(2). As a result, petitions for employment-based visas are backlogged for certain countries. According to the State Department’s Visa Bulletin for January 2016, all EB-1 visa petitions are current, but the priority dates currently under review for EB-2 beneficiaries from mainland China are from January 2013, and July 2009 for India. All EB-3 visa petitions are backlogged, with the longest wait being India’s priority date of July 2005.

AC21 waives the per-country numerical restriction if, during any fiscal quarter, the total number of available visas would go unused. Pub. L. 106-313 §§ 104(a), (b); 114 Stat. 1252-53; 8 U.S.C. § 1152(a)(5). The law also allows workers with H-1B visas to stay beyond the six-year maximum duration if they are in the process of obtaining an employment-based immigrant visa, but one is not available right away because of the per-country numerical cap. Pub. L. 106-313 §§ 105; 114 Stat. 1253.

The NPRM proposes altering DHS rules to make extensions of H-1B status easier to obtain under these circumstances. See 80 Fed. Reg. 81912-15. It would allow USCIS to approve an extension of an H-1B visa past six years if the visa holder is the beneficiary of an approved EB-1, EB-2, or EB-3 visa petition and meets certain other requirements, including a lack of immediately available visas for beneficiaries from that particular country of origin.

AC21 also allows more flexibility for workers with EB-1, EB-2, or EB-3 visas to change jobs while an application for adjustment of status is still pending, provided “the new job is in the same or a similar occupational classification.” Pub. L. 106-313 §§ 106(c); 114 Stat. 1254; 8 U.S.C. § 1154(j). The NPRM follows up on a memorandum issued by USCIS in November 2015, which sought input on how to determine whether a job is “the same or similar” to the previous job. The rules proposed in the NPRM would help facilitate job changes by EB visa holders and H-1B visa holders seeking immigrant status. See 80 Fed. Reg. 8191517.

Business immigration attorney Samuel C. Berger represents employers in the New York City and Northern New Jersey areas who want to hire talent from other countries, family members petitioning on behalf of a loved one, individuals seeking to immigrate to the United States, and immigrants already living here. Contact us today online, at (201) 587-1500, or at (212) 380-8117 to schedule a confidential consultation with a skilled and experienced immigration advocate.

More Blog Posts:

What New York and New Jersey Businesses Should Know About Temporary Work Visas, New York & New Jersey Immigration Lawyer Blog, October 22, 2015

USCIS Issues Final Rule Extending Work Eligibility to Spouses of Certain H-1B Visa Holders, New York & New Jersey Immigration Lawyer Blog, April 22, 2015

Many States Mandate Use of E-Verify System through Legislation, Executive Orders, New York & New Jersey Immigration Lawyer Blog, February 11, 2015

Photo credit: Joergelman [Public domain, CC0 1.0], via Pixabay.