The 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.