E Eb A Fed

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Exposed Documentaries. Public Comments and Responses. Negro League Sweat Shirts. Resolution of specific questions related to an application or petition often requires communication with law enforcement or intelligence agencies to make sure that the information pertains to the applicant or petitioner and to determine whether the information would have an impact on his or her eligibility for the benefit. Rick James Posters.

DHS is amending its regulations related to certain employment-based immigrant and nonimmigrant visa programs. The final rule is intended to benefit U. These changes are primarily intended to better enable U. C, tit. IV, Stat. The final rule further clarifies and improves DHS policies and practices in this area—policies and practices that have long been specified through a series of policy memoranda and precedent decisions of the U.

By clarifying such policies in regulation, DHS provides greater transparency and certainty to affected employers and workers, while increasing consistency among DHS adjudications. Specifically, the final rule clarifies and improves policies and practices related to:. Second, this rule builds on the provisions listed above by making changes consistent with the goals of AC21 and ACWIA to further provide stability and flexibility in certain immigrant and nonimmigrant visa categories.

The amended provisions improve the ability of certain foreign workers, particularly those who are successfully sponsored for LPR status by their employers, to accept new employment opportunities, pursue normal career progression, better establish their lives in the United States, and contribute more fully to the U. These changes also provide certainty for the regulated community and improve consistency across DHS adjudications, thereby enhancing DHS's ability to fulfill its responsibilities related to U.

Specifically, the final rule provides the following:. As noted above, these changes codify and improve USCIS policies concerning various employment-based immigrant and nonimmigrant visa classifications, including by making it easier to hire and retain nonimmigrant workers who have approved Form I petitions and giving such workers additional career options as they wait for immigrant visas to become available.

These improvements are increasingly important considering the lengthy waits and consistently growing demand for immigrant visas. Finally, to provide additional stability and certainty to U. First, to minimize the risk of any gaps in employment authorization, this final rule automatically extends the validity of Employment Authorization Documents EADs or Forms I in certain circumstances based on the timely filing of EAD renewal applications.

Specifically, the rule automatically extends the employment authorization and validity of existing EADs issued to certain employment-eligible individuals for up to days from the date of expiration, as long as: Concurrently, DHS eliminates the regulatory provisions that require adjudication of the Application for Employment Authorization Form I or EAD application within 90 days of filing and that authorize interim EADs in cases where such adjudications are not conducted within the day timeframe.

These changes provide enhanced stability and certainty to employment-authorized individuals and their employers while reducing opportunities for fraud and protecting the security related processes undertaken for each EAD application. See final 8 CFR a. Those changes include the following:. In the final rule, DHS provides clarification that principal beneficiaries may be eligible to file applications for such EADs during the authorized periods of admission that immediately precede or follow the validity periods of their nonimmigrant classifications i.

DHS also streamlines and clarifies the regulatory text covering the two instances in which applicants may be eligible to apply for renewal. In determining whether the difference between the principal beneficiary's priority date and the date upon which immigrant visas are authorized for issuance is one year or less, DHS will use the applicable Final Action Date in the Visa Bulletin that was in effect on the date the application for employment authorization is filed.

Finally, DHS is making several technical revisions for readability and clarity. In addition, DHS is clarifying that the day grace period must be used in a single period of consecutive days during the relevant authorized validity period. However, an individual may be provided other such grace periods if he or she receives a new authorized validity period in one of the eligible nonimmigrant classifications.

DHS is adding these clarifications to address other analogous obstacles of which DHS is not specifically aware, which present similar situations where the beneficiary Start Printed Page is qualified for licensure, but may not obtain the licensure because of a technical requirement. This does not change the intended meaning of the proposed rule.

This definition is adopted for cap exemption purposes at 8 CFR Start Printed Page In addition to the above changes that were made in response to public comment, DHS is making several technical changes to the regulatory text in this final rule so that DHS regulations better reflect current ACWIA fee amounts and filing procedures:. General authority for issuing the final rule is found in section a of the INA, 8 U.

Further authority for the regulatory amendments in the final rule is found in the following sections:. Taken together, the amendments in this final rule are intended to reduce unnecessary disruption to businesses and workers caused by immigrant visa backlogs, as described in Section III. C of this preamble. The benefits from these amendments add value to the U.

The RIA is available in the docket for this rulemaking. DHS has analyzed potential costs of these regulations and has determined that the changes have direct impacts to individual beneficiaries of employment-based nonimmigrant and immigrant visa petitions in the form of filing costs, consular processing costs, and potential for longer processing times for EAD applications during filing surges, among other costs.

Because some of these petitions are filed by sponsoring employers, this rule also has indirect effects on employers in the form of employee replacement costs. The amendments clarify and amend policies and practices in various employment-based immigrant and nonimmigrant visa programs, with the primary aim of providing additional stability and flexibility to foreign workers and U.

In part, the final rule clarifies and improves upon longstanding policies adopted in response to the enactment of ACWIA and AC21 to ensure greater consistency across DHS adjudications and provide greater certainty to regulated employers and workers. These changes provide various benefits to U. These changes also benefit the regulated community by providing instructive rules governing: The increased clarity provided by these rules enhances the ability of certain high-skilled workers to take advantage of the job portability and related provisions in AC21 and ACWIA.

The final rule also amends the current regulatory scheme governing certain immigrant and nonimmigrant visa programs to further enhance job portability for certain workers and improve the ability of U. These benefits are achieved by: The final rule also amends current regulations governing the processing of applications for employment authorization to provide additional stability to certain employment-authorized individuals in the United States while addressing fraud, national security, and operational concerns.

To prevent gaps in employment for such individuals and their employers, the final rule provides for the automatic extension of EADs and, where necessary, employment authorization upon the timely filing of a renewal application. To protect against fraud and other abuses, the final rule also eliminates current regulatory provisions that require adjudication of applications for employment authorization in 90 days and that authorize interim EADs when that timeframe is not met.

DHS has prepared a full costs and benefits analysis of the final rule, which can be found in the docket for this Start Printed Page rulemaking on regulations. The table below provides a summary of the provisions and impacts of this rule. S12,, S12, daily ed. Spencer Abraham ; see also id. Section of ACWIA also made it a violation for an H-1B employer to retaliate against an employee for providing information to the employer or other persons, or for cooperating in an investigation, related to an employer's violation of its LCA attestations and obligations.

Section further required the development of a process to enable H-1B nonimmigrant workers who file complaints with DOL regarding illegal retaliation, and are otherwise eligible to remain and work in the United States, to seek other appropriate employment in the United States.

J, tit. See Act of Oct. Exempt employers include primary and secondary education institutions, certain institutions of higher education and related or affiliated nonprofit entities, nonprofit entities engaged in curriculum-related clinical training, and nonprofit research organizations or governmental research organizations.

AC21 was enacted on October 17, It made numerous changes to the INA designed to improve the U. First, AC21 sought to improve economic growth and job creation by immediately increasing U. See S. Second, AC21 sought to improve the education and training of U. See section of AC As noted by the accompanying Senate Report, foreign-born high-skilled individuals have played an important role in U.

AC21 sought to provide such benefits by improving both the employment-based immigrant visa process and the H-1B specialty occupation worker program. AC21 contained several provisions designed to improve access to employment-based immigrant visas for certain workers. Sections a and b of AC21 amended the INA to effectively waive application of the per-country limitations when such application would result in immigrant visas going unused in any quarter of the fiscal year.

Specifically, section c of AC21 authorized the extension of H-1B status beyond the statutory 6-year maximum for such individuals if immigrant visas are not immediately available to them because the relevant preference category is already over-subscribed for that foreign national's country of birth. See AC21 c. AC21 also sought to more generally ameliorate the impact of the lack of employment-based immigrant visas on the high-skilled beneficiaries of approved Form I petitions.

Specifically, these provisions exempted H-1B nonimmigrant workers from the 6-year limitation on H-1B status contained in INA g 4 , if days or more have elapsed since the filing of a labor certification application if such certification is required under INA a 5 , 8 U. These provisions were intended to allow such high-skilled individuals to remain in the United States as H-1B nonimmigrant workers, rather than being forced to leave the country and disrupt their employers due to a long-pending labor certification application or Form I petition.

Finally, to provide stability and flexibility to beneficiaries of approved Form I petitions subject to immigrant visa backlogs and processing delays, AC21 also provided certain workers the improved ability to change jobs or employers without losing their positions in the immigrant visa queue. Specifically, section c of AC21 provides that certain Form I petitions filed under the EB-1, EB-2, and EB-3 preference categories will remain valid with respect to a new qualifying job offer if the beneficiary changes jobs or employers, provided an application for adjustment of status has been filed and such application has been pending for days or more.

The new job offer must be in the same or a similar occupational classification as the job for which the original Form I petition was filed. As noted above, one of the principal purposes for the enactment of AC21 was to improve the country's access to high-skilled workers.

AC21 therefore contains several additional provisions intended to expand and strengthen the H-1B program. Section of AC21 amended the INA to create an exemption from the H-1B numerical cap for those H-1B nonimmigrant workers who are employed or offered employment at an institution of higher education, a nonprofit entity related or affiliated to such an institution, or a nonprofit research organization or governmental research organization.

Congress deemed such employment advantageous to the United States, based on the belief that increasing the number of high-skilled foreign nationals working at U. Congress also recognized that U. Specifically, section provides that an individual who has been counted against the H-1B numerical cap within the 6 years prior to petition approval shall not be counted against the cap unless that individual would be eligible for a new 6-year period of authorized H-1B admission.

In addition, an individual previously in the United States in H-1B nonimmigrant status is eligible for a full 6 years of authorized admission as an H-1B nonimmigrant after residing and being physically present outside the United States for the immediate prior year.

Section provides that once employment ceases with respect to a cap-exempt entity, the H-1B nonimmigrant worker will be subject to the cap if not previously counted and no other exemptions from the cap apply. Specifically, section allows an H-1B nonimmigrant worker to begin concurrent or new H-1B employment upon the filing of a timely, nonfrivolous H-1B petition.

The H-1B nonimmigrant worker must have been lawfully admitted to the United States, must not have worked without authorization after the lawful admission, and must be in a period of stay authorized by the Secretary. If the H-1B petition is denied, the employment authorization provided under this provision ceases. This responds to concerns raised about the potential for exploitation of H-1B visa holders as a result of a specific U.

The Secretary of Homeland Security has broad authority to extend employment authorization to noncitizens in the United States. See, e. Individuals in the first class, described at 8 CFR a. In many cases, their immigration status and attendant employment authorization is evidenced by the Arrival-Departure Record Form I Those individuals seeking to obtain an EAD that contains not only evidence of employment authorization, but also a photograph, typically must file a separate application with USCIS.

See 8 CFR a. Individuals in the second class, described at 8 CFR a. Individuals in this second group do not file separate requests for evidence of employment authorization and are not generally issued EADs. These individuals instead obtain a Form I indicating their nonimmigrant status and attendant employment authorization.

Individuals in the third class, described at 8 CFR a. This employment authorization is subject to the restrictions described in the regulations for the specific employment eligibility category. There is no right to appeal the denial of an EAD application.

Under current regulations, if USCIS does not adjudicate the Form I within 90 days from the date USCIS receives the application, the applicant will be granted an interim document evidencing employment authorization Start Printed Page with a validity period not to exceed days.

The final rule addresses in part some of the challenges that flow from the statutory limits on immigrant visas, consistent with existing DHS authorities. The number of employment-based immigrant visas statutorily allocated per year has remained unchanged since the passage of the Immigration Act of In the intervening 25 years, the country's economy has expanded dramatically.

The size of the U. Such delays have resulted in substantial inequalities and other hardships flowing from limits on the ability of sponsored workers to change employment to enhance their skills, to accept promotions, or to otherwise change their positions.

Since AC21 was enacted in October of , certain workers seeking LPR status in the United States have faced increasing challenges as a consequence of the escalating wait times for immigrant visas. Numerical limitations in the various employment-based preference categories, combined with the per-country limitations that further reduce visa availability to certain workers, has produced significant oversubscription in the EB-2 and EB-3 categories, particularly for individuals born in India and China.

This oversubscription results in substantial delays in obtaining LPR status for many workers, especially for workers from oversubscribed countries who can face delays that extend for more than a decade. AC21 was enacted as a response to the long and growing delays for many beneficiaries of Form I petitions, to ameliorate the detrimental impact of such delays on the U.

Those delays, however, have grown substantially longer than those that existed at the time AC21 was passed. Although DHS has worked diligently to improve processing times during the intervening period, visa backlogs due to statutory numerical limits for many individuals seeking EB-2 and EB-3 classification have grown significantly for certain individuals.

In many instances, these individuals are in the United States in a nonimmigrant, employer-specific temporary worker category e. Their employment opportunities may be limited to their original job duties with the U. Many individuals subject to the immigrant visa backlogs confront the choice between remaining employed in a specific job under the same terms and conditions originally offered to them, or abandoning the pursuit of an immigrant visa altogether if they do not have another Form I petition filed on their behalf.

When such a worker changes employers or jobs—including a change to an identical job with a different employer or to a new but related job for the same employer—the worker is typically subject to uncertainty as to whether USCIS will approve his or her application for LPR status based on the change.

Moreover, these individuals must consider whether such changes would involve expensive additional immigration processes, greatly discouraging them. Indeed, under current regulations, some changes in employment could result in the loss of nonimmigrant status, loss of the ability to change to another nonimmigrant status, loss of an approved immigrant visa, loss of the ability to obtain an immigrant visa or adjust to LPR status, or the need for the affected worker and his or her family to immediately depart the United States.

As a result, these employees often suffer through many years of effective career stagnation, as they are largely dependent on current employers for immigration status and are substantially restricted in their ability to change employers or even accept promotions from, or make lateral movements within, their current employers.

Simply put, many workers in the immigrant visa process are not free to consider all available employment and career development opportunities. This effectively prevents U. The lack of predictability and flexibility for such workers may also prevent them from otherwise investing in and contributing to the local, regional, and national economy or fully integrating into American society.

During the day public comment period, DHS received 27, comments offering a wide variety of opinions and recommendations on the NPRM and related forms. A range of entities and individuals submitted comments, including nonimmigrants seeking to become LPRs, U.

Many commenters expressed support for the rulemaking, in whole or in part. Supporters of the proposed rule agreed that it would help the United States attract and retain high-skilled foreign workers and would provide some relief to nonimmigrants and their families during their transition to LPR status.

In particular, these commenters approved of the proposals to retain priority dates for the beneficiaries of immigrant visa petitions; provide grace periods of up to 60 days for certain high-skilled nonimmigrant workers to enhance job portability; extend grace periods of up to 10 days for certain high-skilled nonimmigrant workers so that they may more easily change or extend their nonimmigrant status; and codify guidance on counting previously exempt workers under nonimmigrant visa caps, as well as policies determining admission periods for such workers.

Some commenters who generally supported the proposals also suggested changes to certain provisions. Other commenters opposed the proposed rule for different reasons. Some commenters who opposed the proposed rule questioned DHS's legal authority to promulgate some of the regulatory changes contained therein. A substantial number of other commenters, however, objected to the proposed rule because they believed many proposed changes should and could be more expansive.

Such commenters, for example, believed that the rule should have substantially broadened the criteria for obtaining independent employment authorization for beneficiaries of immigrant visa petitions, rather than limiting such a benefit to cases involving compelling circumstances. Many commenters who opposed the rule were intending immigrants who described their personal experiences to illustrate how they would have been helped by the additional changes they requested.

Some commenters argued that the proposed rule did nothing more than codify existing policies and that DHS could have gone further under existing statutory authorities. A number of other comments were opposed to the proposed rule based on generalized concerns about its impact on the U. Some commenters were concerned that this rule may facilitate the displacement of American workers in certain sectors of the U.

Other commenters were concerned that the rule could facilitate the displacement of U. One commenter opposing the proposed rule advocated for developing U. Others submitted comments related to the potential for fraud or to perceived irregularities in the rulemaking process.

Commenters, for example, expressed concern that this rule could increase the potential for fraud and abuse, particularly by employers seeking to take advantage of the immigration system. Commenters also expressed concern that the substance of the rulemaking was unduly affected by a former lobbyist.

Other commenters were concerned that provisions in the proposed rule would provide greater financial benefits to immigration attorneys and to USCIS than to the foreign workers who are the subject of the rule. Finally, DHS received a number of comments that were beyond the scope of this rulemaking. For example, several commenters asked DHS to include provisions creating new immigration benefits for inventors, researchers, and founders of start-up enterprises, a proposal that was not raised in the NPRM and some of which is the subject of a different rulemaking.

Similarly, some submitted comments on the merits of other commenters' views without providing their own views on the proposal itself. DHS has reviewed all of the public comments received in response to the proposed rule and thanks the public for its extensive input during this process. In the discussion below, DHS summarizes and responds to all relevant comments that were timely submitted on the NPRM, which are grouped by subject area.

As discussed at length in section II. A of this preamble. DHS notes that, to the extent some of the commenters' requests for changes require action from Congress or other Departments, the Department lacks the authority to adopt these changes. DHS believes that this final rule improves upon existing policies and provides additional flexibilities consistent with DHS's existing authority to administer the U.

Many commenters opposed the rule based on what they perceived to be insufficient legal authority supporting the proposed changes. A few commenters claimed that only certain discrete proposals included in this rule are beyond DHS's legal authority. Section a of the INA, 8 U. Additionally, section of the HSA 6 U. This rulemaking reflects the lawful exercise of statutory authority delegated by Congress.

Through this rulemaking, DHS is exercising its authority to promulgate regulations as necessary to properly implement and administer existing immigration laws. As such, this final rule will improve processes for U. Several commenters questioned the general basis for various immigration actions taken by the Executive Branch related to businesses and high-skilled workers.

As noted above, DHS has the requisite legal authority to issue this final rule. Consistent with that authority, DHS is promulgating this final rule to further define and clarify existing statutory requirements. Commenters stated that this rule would effectively increase the number of immigrant visas issued in excess of their respective annual caps.

These commenters also expressed concern that the rule would increase the number of H-1B workers who would be cap-exempt. Specifically, commenters stated that this rule circumvents overall caps on authorized visas through a two-step process: The commenter stated that this was an impermissible change because Congress is responsible for setting the annual limits on H-1B visas.

DHS is not modifying immigrant or nonimmigrant numerical limits set forth in the INA and is not changing the classes of foreign workers who qualify for employment-based immigrant or nonimmigrant visas. Contrary to commenters' statements, the provisions contained in this rule reflect a clear congressional mandate with respect to H-1B beneficiaries who are pursuing LPR status, but face long waits due to backlogs resulting from the statutory limits on immigrant visas or certain other adjudication or processing delays.

Through the enactment of AC21, Congress authorized these individuals to remain in the United States beyond their initial 6-year period of authorized admission. See AC21 c and a and b. Finally, with regard to the concerns about this rule increasing the number of H-1B visas that are exempt from the annual limit, DHS notes that, for the most part, this regulation codifies longstanding policy and practice implementing the relevant provisions of AC See IV, part J.

In particular, although the revised definitions may expand the number of petitioners that are cap-exempt, DHS believes that the changes improve current policy by better reflecting current operational realities for institutions of higher education and governmental research organizations, and are consistent with the exemption enacted by Congress.

See 8 CFR Additionally, DHS is not providing compelling circumstances employment authorization to an unlimited number of foreign workers and their dependents while they wait for immigrant visas to become available. Rather, DHS is allowing certain high-skilled nonimmigrant workers and their dependents, who are all on the path to LPR status, to apply for independent and temporary employment authorization if they meet certain criteria, including demonstrating that the workers need such employment authorization due to compelling circumstances.

While some of the dependents of these individuals may not have been part of the workforce at the time they receive such employment authorization, they would eventually become part of the workforce even without this separate employment authorization as they are already on the path to permanent residence.

See Section IV, part F of this preamble for a discussion of compelling circumstances employment authorization. DHS's core responsibilities include enhancing homeland security and preventing terrorism, enforcing and administering the immigration laws, and ensuring the integrity of the immigration system.

DHS believes that the regulations as proposed appropriately address these concerns and further believes that this final rule will not compromise its vigilance. Several commenters raised concerns about terrorism stemming from foreign nationals in various immigration statuses, and the adequacy of Start Printed Page background checks for those seeking to acquire immigration status.

DHS takes its core mission to safeguard the homeland extremely seriously, and it has a number of mechanisms in place to detect fraud and security threats. Individuals requesting immigration benefits from USCIS are subject to a variety of background and security checks, which vary depending on the benefit. USCIS created the Fraud Detection and National Security Directorate FDNS in part to investigate whether individuals or organizations filing for immigration benefits pose a threat to national security, public safety, or the integrity of the immigration system.

FDNS officers resolve background check information and other concerns that surface during the processing of immigration benefit applications and petitions. Resolution of specific questions related to an application or petition often requires communication with law enforcement or intelligence agencies to make sure that the information pertains to the applicant or petitioner and to determine whether the information would have an impact on his or her eligibility for the benefit.

FDNS officers also check various databases and public information, as well as conduct other administrative inquiries, including pre- and post-adjudication site visits, to verify information provided on, and in support of, applications and petitions. Customs and Border Protection CBP , and other law enforcement and intelligence agencies, consistent with all relevant policies on information sharing and referrals.

DHS received several comments concerning alleged fraud in the EB-1, H-1B, and L-1 visa programs, including falsification of worker qualifications and other misuses. These commenters requested that additional measures be taken to combat fraud. DHS continually seeks to strengthen its abilities to detect and combat immigration-related fraud.

Possible consequences for fraud already include detention and removal, inadmissibility to the United States, ineligibility for naturalization and other benefits, and criminal prosecution. USCIS adjudicators receive training to recognize potential fraud indicators across all benefit types and the guidelines for referring cases of suspected fraud for further investigation.

Additionally, as provided under section c 12 of the INA, 8 U. DHS uses its portion of the fees to support activities related to preventing and detecting fraud in the delivery of all immigration benefit types. Additionally, FDNS currently combats fraud and abuse across all benefit types—including the EB-1, EB-2, EB-3, H-1B, and L-1 programs—by developing and maintaining efficient and effective anti-fraud and screening programs, leading information sharing and collaboration activities, and supporting the law enforcement and intelligence communities.

As mentioned above, FDNS's primary mission is to determine whether individuals or organizations requesting immigration benefits pose a threat to national security, public safety, or the integrity of the nation's immigration system. Individuals with information regarding fraud and abuse in the immigration benefits system are encouraged to contact FDNS at reportfraudtips uscis. DHS believes that existing rules and measures collectively provide adequate tools to detect and combat fraud and abuse, and that this rulemaking does not require new or additional protections.

Accordingly, DHS has not made any changes in response to these comments. The final rule clarifies when priority dates are established for employment-based immigrants and expands the ability of beneficiaries of approved Form I petitions in the EB-1, EB-2, and EB-3 categories to retain their priority dates for use with subsequently filed Form I petitions.

First, the final rule fills a hole in current regulations. Existing regulations establish that the priority date of an employment-based immigrant visa petition accompanied by a labor certification is established when the labor certification is accepted for processing by DOL. Those regulations, however, do not indicate when the priority date is established for an employment-based petition that is not accompanied by a labor certification.

To provide further clarity, this final rule provides, generally, that the priority date of a Form I petition that does not require a labor certification is the date such petition is properly filed with USCIS. See final 8 CFR Second, the final rule disallows retention of the priority date of an approved Form I petition if the approval of the petition is revoked because of fraud, willful misrepresentation of a material fact, the invalidation or revocation of a labor certification, or material error.

Third, the final rule amends existing automatic revocation regulations to prevent Form I petitions that have been approved for days or more from being automatically revoked based solely on the withdrawal of the petition by the petitioner or the termination of the petitioner's business. In response to comments, the final rule also prevents automatic revocation of approved petitions that are withdrawn or where Start Printed Page the business terminates days after an associated adjustment of status application is filed.

See id. These approved petitions will continue to be valid for priority date retention purposes, unless approval is revoked on other grounds specified in final 8 CFR In addition, the final rule clarifies that an approved Form I petition that is subject to withdrawal or business termination cannot on its own serve as a bona fide employment offer related to the petition. To obtain an immigrant visa or adjust status, beneficiaries of these petitions must have either new Form I petitions filed on their behalf, or, if eligible for job portability under section j of the INA, new offers of employment in the same or a similar occupational classification.

DHS believes these regulatory changes are critical to fully implementing the job portability provisions of AC Therefore, the final rule retains these proposals with minor modifications to reflect public comment summarized below. Several commenters supported the proposed clarification of the methods for establishing priority dates.

DHS agrees with commenters and believes such clarification will provide increased transparency and certainty for stakeholders. As noted above, the final rule generally establishes that the priority date of an employment-based immigrant visa petition that does not require a labor certification is the date on which such petition is appropriately filed with USCIS.

Given commenters' support of this provision, DHS adopts this provision as proposed, including the proposed technical edits to delete obsolete references and otherwise improve the readability of the rule. Some commenters stated that the policy that provides for the retention of priority dates in cases in which an employer withdraws an approved petition already existed before this rulemaking.

Those commenters suggested that the rule thus provides no additional benefits to such beneficiaries as they await adjustment of status. The prior regulations disallowed priority date retention in all instances in which approval of a Form I petition was revoked. Thus, under the prior regulations, revocation of a Form I petition based on withdrawal by the petitioner would have prevented the beneficiary of the petition from retaining his or her priority date.

The NPRM proposed to change the prior regulations so that the beneficiary of a Form I petition can retain the priority date of that petition unless USCIS denies the petition or revokes the petition's approval due to: This change expands the ability of beneficiaries to retain the priority dates of approved Form I petitions, including but not limited to when a petition's approval is revoked based solely on withdrawal of the petition.

This provision improves the ability of certain workers to accept promotions, change employers, or pursue other employment opportunities without fear of losing their place in line for certain employment-based immigrant visas. Although many commenters supported the retention of priority dates, one commenter objected to the retention of the earliest priority date in cases in which a worker is shifting between employment-based immigrant visa EB preference categories.

The commenter believed the provision was unfair to individuals who have been waiting in those EB preference queues. The commenter did not believe it was fair to have an individual who is recently entering a specific queue to receive a better position than an individual who has been waiting in that queue for some time, even if the former individual has been waiting in a different queue for a longer period of time.

The ability to retain priority dates in cases in which a worker is changing EB preference categories has long been permitted under existing regulations at 8 CFR DHS believes that allowing certain beneficiaries of multiple approved Form I petitions to continue to retain the earliest established priority date for use with subsequently approved Form I petitions, including cases of transfers between EB preference categories, provides needed stability, job flexibility, and certainty for workers while they await adjustment of status.

The policy also facilitates the ability of individuals to progress in their careers while they wait for visa availability. DHS believes the policy is consistent with the goals of the AC21 statute and has accordingly chosen to maintain it. A number of commenters supported the provisions in proposed 8 CFR The commenters said these provisions provide needed clarity and assurance to workers about the retention of priority dates in cases involving withdrawal or business termination.

Several other commenters requested that DHS allow Form I petitions to remain valid and approved despite petitioner withdrawal or business termination regardless of the amount of time that has passed since petition approval i. DHS agrees that retaining the NPRM proposal related to validity of Form I petitions in the event of withdrawal or business termination will bring clarity and assurance to workers that a petition's approval is not automatically revoked based solely on an employer's withdrawal of the petition or termination of the employer's business days or more after the petition is approved or the associated application for adjustment of status is filed.

This provision is intended to provide greater stability and flexibility to certain workers who are the beneficiaries of approved Form I- Start Printed Page petitions and are well on the path to obtaining LPR status in the United States. DHS notes, however, that commenters may have confused provisions that govern the retention of priority dates with provisions that govern the retention of petition approval.

As proposed and in this final rule, 8 CFR As discussed, once such a petition has been approved, the beneficiary may retain that priority date for use with another EB-1, EB-2, or EB-3 Form I petition, so long as the approval of the former petition was not revoked due to: In contrast, final 8 CFR Thus, under this rule, the beneficiary of a Form I petition may be able to retain his or her priority date even if approval of the petition is revoked due to withdrawal or business termination.

DHS is removing the phrase from the proposed text because it could be construed as creating an unintended exception to the priority date retention provision. DHS declines to adopt commenters' proposal that a Form I petition remains approved if the withdrawal or business termination occurs at any time before the Form I has been approved for at least days. DHS believes that the day threshold is consistent with and furthers the goals of job portability under INA j.

Additionally, DHS believes the day threshold protects against fraud and misuse while providing important stability and flexibility to workers who have been sponsored for permanent residence. In addition to the period that it typically takes for a petitioning employer to obtain a labor certification from DOL and approval of a Form I petition from DHS, the day requirement provides additional assurance that the petition was bona fide when filed.

The final rule, therefore, maintains Form I petition approval despite petitioner withdrawal or business termination when such petitions have been approved for days or more, or its associated adjustment of status application has been pending for days or more. One commenter suggested changes to the regulatory text concerning the requirement that the Form I petition be approved for days or more.

Specifically, the commenter recommended amending the text to make clear that the day threshold would not apply in cases in which an applicant has a pending Application to Register Permanent Residence or Adjust Status Form I that may provide job portability under INA j.

The commenter believed this outcome would be inconsistent with congressional intent under AC DHS proposed to allow a Form I petition to remain valid for certain purposes if such a petition was withdrawn or the petitioner's business terminated days or more after the Form I petition had been approved.

This provision was intended to build upon existing DHS policies that have governed the validity of Form I petitions in the event of withdrawal or business termination before and after beneficiaries are eligible to change jobs or employers under INA j. DHS did not intend that its regulatory proposal would modify the existing timeframe before an individual would become eligible to port under INA j ; rather, this provision was intended to protect those individuals who are not yet eligible for INA j portability from the automatic revocation of the approval of a Form I petition that had been approved for days or more.

One commenter recommended that the final rule require that the beneficiary of an employment-based Form I petition remain with the petitioning employer for at least 3 years before the employee is able to retain the priority date of that petition. Furthermore, DHS notes that Form I petitions are for prospective employment, and there is no guarantee that the beneficiary of an approved Form I petition has or would be able to obtain work authorization to commence employment with the petitioner prior to obtaining lawful permanent residence.

In addition, allowing priority date retention furthers the goals of AC21 to grant stability, flexibility, and mobility to workers who are facing long waits for LPR status. Several commenters requested that the rule's provision restricting revocation of a petition's approval based on withdrawal or business termination apply retroactively to petitions whose approvals were revoked prior to the rule's publication.

DHS appreciates the commenters' suggestion; however, DHS has determined that retroactive application of this provision would be problematic. Generally, there is a presumption against retroactive application of new regulations. Bowen v. Georgetown Univ. Moreover, in this case, retroactive application of the revised automatic revocation provision would impose a disproportionate operational burden on USCIS, as it would require significant manual work.

USCIS systems cannot be queried based on the specific reason s for revocation, and USCIS would be required to manually identify Start Printed Page and review these cases in order to verify the reason s for revocation, thus creating a highly labor-intensive process that would significantly strain USCIS resources. Therefore, the final 8 CFR Some commenters supported the rule's requirement that priority dates will not be retained in cases of fraud, willful misrepresentation, revocation or invalidation of the labor certification, a determination that petition approval was the result of an error, or the denial of the petition.

Other commenters opposed the inability to retain priority dates where a Form I petition's approval has been revoked based on a determination that USCIS erroneously approved the petition. DHS agrees that it is important for the integrity of the immigration system not to retain a priority date in cases in which the approval of a Form I petition is revoked for fraud, willful misrepresentation of a material fact, the invalidation or revocation of a labor certification, or USCIS error.

DHS declines to accept commenters' recommendations that the final regulation remove the error standard in its entirety because of the need to take appropriate action in cases in which the petition was not approvable in the first instance. One commenter suggested that USCIS allow the retention of Form I priority dates even in cases in which it is later discovered that the petitioner made material misrepresentations on the original petition and the petition's approval is revoked, as well as cases in which the petition's approval is revoked based on USCIS error—so long as it can be reasonably verified that the beneficiary had no involvement in the misrepresentation or the error later discovered by USCIS.

DHS understands that revocation of long approved Form I petitions due to the later discovery of willful misrepresentation s committed by the petitioner, but that are unbeknownst to the beneficiary, can negatively impact the beneficiary by causing the loss of his or her priority date and, therefore, the beneficiary's place in line for an immigrant visa.

The revocation of the approval of a long approved Form I petition due to material errors that are not the fault of the beneficiary can also negatively impact the beneficiary. DHS, however, believes it would be inappropriate to allow a Form I petition that had its approval revoked for fraud or willful misrepresentation of a material fact, or because the Form I petition was not eligible for approval in the first place, to confer a priority date.

Allowing the beneficiary of such petition to remain in line ahead of other individuals who are the beneficiaries of properly approved Form I petitions would be contrary to DHS's goal of upholding the integrity of the immigration system. Some commenters requested that beneficiaries of approved Form I petitions who are not yet eligible for j portability be permitted to change jobs and adjust status to lawful permanent residence without the requirement of obtaining a new application for labor certification and a new approved Form I petition.

Similar to job portability under INA j in certain regards, these and other commenters suggested that beneficiaries of approved Form I petitions should be allowed to change jobs, file a Form I application and adjust status to lawful permanent residence on the basis of the original Form I petition as long as the new job is in the same or a similar occupation as the job described in the approved Form I petition.

Some commenters stated that there is an increase in time and monetary costs associated with multiple labor certification filings. Most of the commenters agreed that very few benefits were provided by requiring a new labor certification. One commenter urged DHS to allow a withdrawn or revoked Form I petition to remain valid for the purposes of obtaining an immigrant visa, in order to fully implement Congress's intent in passing AC A foreign worker may obtain an employment-based immigrant visa only if he or she is the beneficiary of an approved employment-based immigrant visa petition.

In this final rule, DHS is allowing certain approved Form I petitions to remain approved for various purposes despite withdrawal or business termination. However, such a petition may not be used to obtain lawful permanent residence, unless it meets the requirements of INA j.

With respect to obtaining lawful permanent residence under the EB-2 and EB-3 classifications, the INA requires that the worker be the beneficiary of a valid Form I petition, which generally must be supported by a valid labor certification at the time of adjustment of status.

Outside of the j context, an approved Form I petition filed by an employer that no longer intends to employ the worker upon approval of the Form I application, whether presently or at any time in the future, does not represent a bona fide job offer and, therefore, is not sufficient to support an application for adjustment of status. INA section a 5 A and D generally prohibits any foreign worker seeking to perform skilled or unskilled labor from being admitted to the United States under the EB-2 and EB-3 immigrant visa classifications unless the Secretary of Labor has determined and certified that there are not sufficient workers who are able, willing, qualified, and available to perform that work at the location the foreign worker will perform the work and that the employment of that foreign worker will not adversely affect the wages and working conditions of similarly situated U.

Under current DOL regulations, a permanent labor certification remains valid only for the particular job opportunity, for the individual named on the labor certification, and for the area of intended employment stated on the application for permanent labor certification.

See 20 CFR DHS does not have authority to regulate the terms and requirements of these labor certifications and therefore cannot prescribe what is necessary for the labor certification to remain valid even for long-delayed applicants for adjustment of status, although DHS does have authority to invalidate labor certifications for fraud or willful misrepresentation.

While DHS cannot expand portability beyond the INA j context, the final rule does provide some additional flexibility and stability for individuals who may not be eligible for INA j portability, by allowing beneficiaries of approved Form I petitions to retain their priority dates in certain situations and allowing certain Form I petitions to remain valid, including for purposes of section j portability, notwithstanding withdrawal of the petition or termination of the petitioner's business, as described above.

Several commenters expressed concern that individual beneficiaries of Form I petitions are not provided notice when USCIS seeks to revoke the approval of those petitions. The commenters stated that this policy prevented beneficiaries from checking the status of their pending Form I petitions and providing the evidence needed to avail themselves of AC21 portability.

The commenters stated that under USCIS's current practice, a beneficiary may be unaware that approval of his or her Form I petition has been revoked until his or her application for adjustment of status is denied. The commenters stated that not providing beneficiaries with notice and an opportunity to respond in such cases raises serious issues of fundamental fairness that could be remedied by permitting beneficiaries of petitions that may afford portability under section j to participate in visa petition proceedings, consistent with Congress's intent when it enacted AC The commenters urged DHS to undertake rulemaking to bring notice regulations in line with the realities of today's AC21 statutory scheme.

Finally, a commenter stated that beneficiaries of Form I petitions have interests equal to or greater than those of petitioners, including because revocation impacts beneficiaries' ability to retain priority dates, their admissibility, their eligibility to have immigrant visa petitions approved on their behalf, and their eligibility for adjustment of status under section i of the INA, 8 U.

Commenters also cited to various recent federal cases that have supported the commenters' interpretation of AC DHS appreciates the concerns raised by these comments. While DHS is unable to address these concerns in this final rule because they are outside the scope of this rulemaking, DHS is considering separate administrative action outside of this final rule to address these concerns.

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A few commenters claimed that only certain discrete proposals included in this rule are beyond DHS's legal authority. Duration of H-1B Petition Approval. How much do you estimate your TSP balance to be? DHS also streamlines and clarifies the regulatory text covering the two instances in which applicants may be eligible to apply for renewal. July 22, Negro League Jackets. Second, AC21 sought to improve the education and training of U.

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