A new year’s gift from USCIS: 140 portability rules and much more


As per President Obama’s executive action announcement of November 2015, a year later, we are presented with the much anticipated policy change rules that will likely make employment-based immigration better in some circumstances. The 181 page proposed rules (140eadexecaction fr text dec 30 2015 will be published to the Federal Register tomorrow Dec. 31, 2015.  It covers many grounds and much analysis will be required. There will be a 60 day comment period from tomorrow. After that, USCIS will consider those comments before finalizing them.  This is your opportunity to air your concern if the rules do not address what you had hoped to see.

It is important to note that statute cannot be changed through this process but some issues can be reinterpreted and made consistent with other current rules. That is what is happening here. So, per country quota cannot be changed without Congress’s action.   These rules do not cover entrepreneur issues, I am still anxiously awaiting those.

There are so many good things in my opinion in these rule changes, that I am excited and I want to take the opportunity to thank USCIS for painstakingly going through so many legal authorities and memos to make these changes.  As get into the analysis, I will update my opinions.  I imagine the task ahead will be challenging still- for stakeholders as well as USCIS.   I will write individual blog posts but for now, here are the headlines as per the text (copied):

IV. Proposed Regulatory Changes

A. Proposed Implementation of AC21 and ACWIA

1.Extending H-1B Nonimmigrant Status for Certain Individuals who are being Sponsored for Lawful Permanent Residence

a. H-1B Extensions for Individuals Affected by the Per-Country Limitations

b.   H-1B Extensions for Individuals Affected by Lengthy Adjudication DelayJob Portability under AC21 for Certain Applicants for Adjustment of Status

2.Job Portability for H-1B Nonimmigrant Workers

4. Calculating the H-1B Admission Period

5. Exemptions from the H-1B Numerical Cap under AC21 and ACWIA

a. Employers Not Subject to H-1B Numerical Limitations

b Counting Previously Exempt H-1B Nonimmigrant Workers

6. Whistleblower Protections in the H-1B Program

B. Additional Changes to Further Improve Stability and Job Flexibility for Certain Foreign Workers

  1. Revocation of Approved Employment-Based Immigrant Visa Petitions

2. Retention of Priority Dates

3. Nonimmigrant Grace Periods

a. Extending 10-Day Grace Periods to Certain Nonimmigrant Classifications

b. Providing a 60-Day Grace Period to Certain Nonimmigrant Classifications

  1. Eligibility for Employment Authorization in Compelling Circumstances
  2. H-1B Licensing Requirement

C. Processing of Applications for Employment Authorization Documents

  1. Automatic Extensions of EADs in Certain Circumstances
  2. Elimination of 90-Day Processing Timeframe and Interim EADs
  3. Conforming and Technical Amendments

Most of these provisions will broaden the current definitions or make rules consistent with others. I will write more soon, stay tuned!

This post originally appeared on Watson Immigration Law Group. Reprinted with permission.

About The Author

Tahmina Watson Tahmina Watson is an immigration attorney and founder of Watson Immigration Law in Seattle Washington. She was a practicing barrister in London, UK, before immigrating to the United States herself. While her practice includes family-based and employment-based immigration, she has a strong focus on immigrant entrepreneurs and start-up companies. She can be contacted at tahmina@watsonimmigrationlaw.com. You can visit www.watsonimmigrationlaw.com to learn about Tahmina and her practice.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.