AC21 Rule Effective January 17, 2017

February 21, 2017


The U.S. Department of Homeland Security final rule, "Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting Highly-Skilled Nonimmigrant Workers," took effect on January 17, 2017.

The rule was published in the Federal Register at 81 FR 82398 (November 18, 2016).

The final rule largely conforms DHS regulations to longstanding DHS policies and practices related to the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), Public Law 105-277, div. C, tit. IV, 112 Stat. 2681, and the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), Public Law 106-313, 114 Stat. 1251, as amended by the 21st Century Department of Justice Appropriations Authorization Act, Public Law 107-273, 116 Stat. 1758 (2002). The rule also adds, changes, or removes other provisions not necessarily connected with AC21 or ACWIA.

NAFSA members can tune in to the recording of a NAFSA Government Connection web event: Key Provisions of New DHS Regulations Affecting Certain Nonimmigrant and Immigrant Worker Programs. This Government Connection was presented by experienced NAFSA members, and summarized how the rule impacts institutions of higher education and international student and scholar populations, including information on new nonimmigrant grace periods, H-1B change-of-employer cases, new employment authorization provisions, I-140 revocations, and more. Also explore the resources made available in the AC21 Resources menu on the right side of this page.

Some things you need to know about the new rule effective January 17, 2017

Here is a brief outline of items in the new rule that may impact immigration matters in higher education.

EAD matters

  • The 90-day EAD processing time frame is no more; in its place:
  • There is a new rule that allows some applicants for an EAD renewal to continue working for 180 days while the extension is pending, but...
    • The categories that benefit from this are very limited - an EAD based on an application for adjustment of status is about the only eligible category frequently encountered in higher education. See a NAFSA Note explaining this in greater detail.
  • The prior pre-filing window to apply for an EAD renewal has been extended from 120 days to 180 days (this is not a regulation, but rather a DHS policy - DHS says this in the preamble to the final rule).
    • This 180-day-in-advance EAD renewal filing policy does not apply to the pre-filing window for any type of OPT (pre-completion, post-completion, and STEM OPT), which remains fixed by regulation at 90 days. USCIS will continue to reject OPT applications filed before 90 days, even if filed only 1 day too early. See a NAFSA Note explaining this in greater detail.
  • A new rule allows beneficiaries of approved I-140s to apply for a "compelling circumstances" EAD if their priority date does not allow them to apply for adjustment of status
    • … but, "compelling" means really compelling
    • DHS may consider someone who uses such an EAD to have violated their nonimmigrant status (so they imply in the preamble)

H-1B and other nonimmigrant matters

  •  1-year extensions of H-1B status beyond six years under AC21 106(a)
    • Long-adjudication basis: Labor Cert or I-140 has been pending for more than 365 days
    • Must be beneficiary of approved EB-1, 2, or 3 petition
    • Only H-1B nonimmigrants may request an extension under AC21 106(a)
    • Extensions one year at a time
    • Someone who does not file an adjustment of status application or apply for an immigrant visa within one year of an immigrant visa number becoming available is no longer eligible for 1-year extensions of H-1b status beyond six years under AC21 106(a). Read a brief NAFSA advisory on this point.
  • 3-year extensions of H-1B status beyond six years under AC21 104(c)
    • Per-country per country or worldwide immigrant visa cutoff basis
    • Must be beneficiary of approved EB-1, 2, or 3 petition
    • Do not have to be in H-1B status at time request is filed
    • Extensions 3 years at a time
  • H-1B "portability" provisions
    • Must be currently in H-1B status to port to another employer
    • H-1B portability generally OK while H-1B nonimmigrant is within either a 10-day or 60-day nonimmigrant grace period
    • Portability employment can begin on the later of 1) the date USCIS receives a non-frivolous I-129 petition for new H-1B employment from a new employer (or from the same employer for new employment); or 2) On the requested start date of such a petition; Employment with the new employer that begins before the later of these two permissible H-1B portability start dates is not authorized.
  • H-1B cap counting
    • Recapture: Can recapture time greater than 24 hours spend outside the U.S. during an H-1B petition
    • Affiliated entities: Expanded definition, now includes nonprofit entities that have "entered into a formal written affiliation agreement with an institution of higher education that establishes an active working relationship between the nonprofit entity and the institution of higher education for the purposes of research or education, and a fundamental activity of the nonprofit entity is to directly contribute to the research or education mission of the institution of higher education."
    • Expanded the definition of "governmental research organization" to include state and local government entities, in addition to federal entities
    • Refines the definition of what it means to be employed by a cap-subject employer "at" a cap-exempt employer: OK if "the H-1B beneficiary will spend the majority of his or her work time performing job duties at a qualifying institution, organization or entity and those job duties directly and predominately further the essential purpose, mission, objectives or functions of the qualifying institution, organization or entity, namely, either higher education, nonprofit research or government research."
    • Concurrent employment at cap-subject employer while employed by cap-exempt employer: must continue working for cap-exempt employer, or USCIS can revoke the cap-subject petition (this differs from the prior rule, which only examined cap considerations at the time the beneficiary applied for an extension of stay)
  • H-1B and licensure
    • Codifies existing policies on Temporary license exception, Supervised practice exception, and "Catch-22" exception to meet a state technical requirement (e.g., state needs a SSN before licensing)
    • H-1B petitioner must establish eligibility with evidence
  • 10-day pre and post grace periods for E-1, E-2, E-3, H-1B, L-1, and TN nonimmigrants
    • Up to 10 days before the validity period of the petition begins; and up to 10 days after the validity of the petition ends
    • Unless otherwise authorized (e.g., through portability employment), the beneficiary may not work except during the validity period of the petition.
    • These 10-day periods, especially the 10-day period after the validity of the petition ends, are not automatically given
    • Must appear on petition approval notice or I-94, or it doesn't exist
  • 60-day grace period following early cessation of employment by E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN nonimmigrants
    • Once during each authorized validity period
    • DHS will not consider the worker and his or her dependents "to have failed to maintain nonimmigrant status solely on the basis of a cessation of the employment on which the alien's classification was based."
    • What is the "authorized validity period? -The employment end date on the Form I-797 approval notice of the petitioner's Form I-129 H-1B petition? -The expiration date on the H-1B nonimmigrant's Form I-94?
    • This grace period is not like the F-1 60-day grace period. Whereas the F-1 grace period is tacked on to the end of a student's program end date after completing a course of study, the H-1B 60-day grace period is the sooner of 60 consecutive days after the cessation of work or the petition end date, i.e., whichever comes first. And so, the 60-day employment-based grace period can occur at any time during the nonimmigrant's authorized validity period, but only once during that period.
    • Whereas the F-1 grace period is tacked on to the end of a student's program end date after completing a course of study, the H-1B 60-day grace period is the sooner of 60 consecutive days after the cessation of work or the petition end date, i.e., whichever comes first. And so, the 60-day employment-based grace period can occur at any time during the nonimmigrant's authorized validity period, but only once during that period.

Lawful Permanent Residence matters

  • I-140 revocation
    • Approved I-140 petitions are no longer automatically revoked when an employer withdraws the petition or the business terminates… But only if the withdrawal or termination occurs 180 days or more after the petition was approved, or after an I-485 adjustment of status application has been pending for 180 days or more
    • There is a difference between retaining a priority date and retaining the validity of an I-140 petition approval. The rule clarifies how a priority date is retained and how this differs from the provision that addresses what constitutes I-140 revocation for purposes of I-140 portability cases.
  • I-140 portability – when the beneficiary can take his/her PR case to a new employer without starting the process over again.
    • An approved I-140 will remain valid for employment
    • Same or similar is more precisely defined
    • Also includes the language re: intent for applicant to be employed in the position "within a reasonable period upon the applicant’s grant of lawful permanent resident status."
  • Use of Form I-485 Supplement J. Starting January 17, 2017, adjustment of status applicants must file Supplement J to confirm the job offer that serves as the basis for the immigrant visa classification being sought.
    • If you are concurrently filing a Form I-485 and Form I-140, you do not have to file Supplement J, since the I-140 itself is the instrument USCIS uses to confirm the job offer; However, USCIS may still ask you to submit Supplement J before adjudicating the adjustment application, especially if substantial time has passed since the concurrent I-485 and I-140 were filed
    • If you are filing a stand-alone Form I-485, you must file Supplement J at the time you file your Form I-485 to confirm that the job offered to you in the underlying Form I-140 is still bona fide and available to you
    • You must affirmatively file Supplement J to request job portability to a new, permanent job offer under INA section 204(j), along with documentation that the job offer from a new U.S. employer is in the same or a similar occupational classification as the position for which the underlying Form I-140 was filed and approved; But you cannot file Supplement J in a portability case until the Form I-485 has been pending for 180 days or more
    • You must file Supplement J any time USCIS asks you to (e.g., in an RFE or NOID), even if you've already filed one before.
    • Both the I-140 petitioner and beneficiary must complete portions of Supplement J, and sign the form.