Neufeld AC21 Memo
U.S. Citizenship and Immigration Services
Office of Domestic Operations
Washington, DC 20529
HQ 70/6.2
AD 08-06
May 30, 2008
Memorandum
TO: Field Leadership
FROM: Donald Neufeld /s/
Acting Associate Director, Domestic Operations
Supplemental Guidance
Relating to Processing Forms I-140 Employment-Based
Immigrant Petitions
and I-129 H-1B Petitions, and Form I-485 Adjustment Applications Affected by the
American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public
Law 106-313), as amended, and the American Competitiveness and Workforce
Improvement Act of 1998 (ACWIA), Title IV of Div. C. of Public Law 105-277.
Revisions to
Adjudicator’s Field Manual (AFM):
Chapter 20.2(d)
Petition Validity
Chapter 31.2(d)
Limits on a Temporary Stay
Chapter 31.3(g) H1-B Classification and Documentary
Requirements
(AFM Update AD 08-06)
I. Purpose
The purpose of this
memorandum is to incorporate certain portions of previously issued guidance
into the Adjudicator’s Field Manual, as well as to provide additional
guidance on adjudication of:
(1) H-1B petitions in
connection with the extension provisions of AC21 §106(a);
(2) H-1B petitions in
connection with the extension provisions of AC21 §104(c) for aliens subject to
per country visa limitations;
(3) H-1B petitions
requesting concurrent employment on behalf of certain H-1B cap-exempt aliens;
(4) INA § 212(n)(2)(C)(v)
Guidance Relating to Changes in Employment by H-1B Aliens who report LCA
violations; and
(5) I-140 petitions
and Form I-485 applications in connection with the portability provisions of
AC21 §106(c).
Prior AC21
Guidance
-
On
January 29, 2001, the Office of Field Operations issued a memorandum
entitled
Interim Guidance for Processing H-1B Applications for Admission as Affected
by the American Competitiveness in the Twenty-First Century Act of 2002,
Public Law 106-313.
-
On
June 19, 2001, the Office of Programs issued a follow-up memorandum entitled
Initial
Guidance for Processing H-1B Petitions as Affected by the American
Competitiveness in the Twenty-First Century Act (Public Law 106-313) and
Related Legislation (Public Law 106- 311) and (Public Law 106- 396).
-
On
February 28, 2003, the Immigration Service Division issued a memorandum
entitled
Procedures for concurrently filed family-based or employment-based Form
I-485 when the underlying visa petition is denied.
-
On
April 24, 2003, the Office of Operations issued a memorandum entitled
Guidance for
Processing H-1B Petitions as Affected by the Twenty-First Century Department
of Justice Appropriations Authorization Act (Public Law 107-273).
-
On
August 4, 2003, the Office of Operations issued a memorandum entitled
Continuing Validity
of Form I-140 Petition in Accordance with Section 106(c) of the American
Competitiveness in the Twenty-First Century Act of 2000 (AC21).
-
On
September 23, 2005, the Office of Field Operations issued a memorandum
entitled
Interim Guidance Regarding the Impact of the Department of Labor’s (DOL)
PERM Rule on Determining Labor Certification Validity, Priority Dates for
Employment-Based Form I-140 Petitions, duplicate Labor Certification
Requests and Requests for Extension of H-1B Status
Beyond the
6th Year
-
On
October 18, 2005, the Acting Deputy Director, designated a decision of the
Administrative Appeals Office (AAO) in
Matter of Al Wazzan
(January 12, 2005)
as a USCIS Adopted Decision.
-
On
December 27, 2005,
the Office of Field Operations issued a memorandum entitled
Interim guidance for
processing I-140 employment-based immigrant petitions and I-485 and H-1B
petitions affected by the American Competitiveness in the Twenty-First
Century Act of 2000 (AC21) (Public Law 106-313).
All of the provisions
of these memoranda remain in effect except where noted herein. This memorandum
supplements the existing guidance.
II. Background
and Field Guidance
1. AC21 §106(a)
Guidance Relating to Recent DOL Final Rule-Making
USCIS hereby
clarifies the impact of two recently published DOL rules on the adjudication of
H-1B petitions pursuant to AC21 §106(a), and § 104(c) and Form I-140 petitions
pursuant to §106(c) of AC21, INA 204(j). The two DOL rules are the “Labor
Certification for the Permanent Employment of Aliens in the United States;
Implementation of New System”, [69 FR 77326], hereinafter called the “Perm
Rule” (published on December 27, 2004, and effective as of March 28, 2005); and
the DOL
Labor Certification for the Permanent Employment of Aliens in the United States;
Reducing the Incentives and Opportunities for Fraud and Abuse and Enhancing
Program Integrity, published in the Federal Register,
hereinafter call the “Perm Fraud” rule, published on May 17, 2007, (71 FR
27904), which took effect on July 16, 2007.
Revocation of
Approved Labor Certifications
The DOL Perm rule, at 20 CFR 656.32 provides
for the revocation of approved labor certifications by DOL if a subsequent
finding is made that the certification was not justified. In such instances, DOL
provides notice to the employer in the form of a Notice of Intent to Revoke an
approved labor certification that contains a detailed statement of the grounds
for the revocation and the time period allowed for the employer's rebuttal. The
employer may submit evidence in rebuttal within 30 days of receipt of the
notice. If rebuttal evidence is not filed by the employer, the Notice of Intent
to Revoke becomes the final decision of the Secretary. If the employer files
rebuttal evidence and DOL determines the certification should nonetheless be
revoked, the employer may file an appeal under 20 CFR 656.26 within 30 days of
the date of the adverse determination. If the labor certification is revoked,
DOL will also send a copy of the notification to USCIS and the Department of
State.
Approved Labor
Certification Validity Period
The DOL Perm Fraud
rule, at 20 CFR 656.30(b) provides for a 180-day validity period for labor
certifications that are approved on or after July 16, 2007. Petitioning
employers will have 180 calendar days after the date of approval by DOL within
which to file an approved permanent labor certification in support of a Form
I-140 petition with USCIS. Likewise, revised CFR 656.30(b)(2) established an
implementation period for the continued validity of labor certifications that
were approved by DOL prior to July 16, 2007; such labor certifications must have
been filed in support of an I-140 petition within 180 calendar days after the
effective date of the DOL final rule in order to be valid, i.e., prior to
January 13, 2008.
DOL Rules Impact
Adjudication on H-1B Extension Requests:
As addressed in the
April 24, 2003 and December 27, 2005, guidance memoranda, USCIS is required to
grant the extension of stay pursuant to §106(a) of AC21, in one-year increments,
until such time as a final decision has been made to:
-
Deny the application for labor certification, or, if the labor certification
is approved, to deny the EB immigrant petition that was filed pursuant to
the approved labor certification;
-
Deny the EB immigrant petition, or
-
Grant or deny the alien’s application for an immigrant visa or for
adjustment of status.
The previous
published guidance outlined above does not take into account that approved labor
certifications may now be revoked by DOL, or that approved labor certifications
must be filed with a Form I-140 petition within the validity period stipulated
by DOL in order to remain valid. In light of these regulatory changes
implemented by DOL, the existing guidance on this topic is revised as follows:
USCIS will grant the
106(a) extension of stay in one-year increments, unless a final decision is made
to:
i.)
Deny the application for labor certification;
ii.)
If the labor certification is approved, to revoke the approved labor
certification;
iii.)
Deny the EB immigrant petition; or
iv.)
Grant or deny the alien’s application for an immigrant visa or for
adjustment of status.
If at any time before
or after the filing of the extension request one of the above occurs, the H-1B
alien beneficiary of the extension request will not be entitled to an extension
beyond the time remaining on his or her 6-year maximum stay unless another basis
for exceeding the maximum applies.
Also, because
approved labor certifications must be filed with a Form I-140 petition within
the validity period stipulated by DOL in order to remain valid, USCIS looks to
see if, at the time an extension request under 106(a) is filed, the labor
certification is unexpired.
USCIS adjudicators
may grant an extension of stay under AC21 §106(a) if evidence is provided that:
-
A
labor certification is unexpired at the time of filing of the Form I-129
H-1B extension petition; and
-
The
labor certification was filed with DOL or the I-140 petition was filed with
USCIS at least 365 days prior to the date the alien beneficiary will have
exhausted 6 years of H-1B status in the United States pursuant to 214(g)(4);
and
-
The
extension and I-129 petition are otherwise approvable.
USCIS will
not
grant an
extension of stay under AC21 §106(a) if, at the time the extension request is
filed, the labor certification has expired by virtue of not having been timely
filed in support of an EB immigrant petition during its validity period, as
specified by DOL. USCIS sees no reason to consider a labor certification that
has expired through the passage of time differently than one that has been
denied or, for that matter, revoked. In addition, the filing of an immigrant
petition with an expired labor certification would result in the automatic
rejection, or if accepted in error, denial of that EB immigrant petition, which
in turn, acts as a statutory bar to the granting of an extension beyond the 6-
year maximum.
Extension requests
under AC21 §106(a) may be made in a petition that also contains a request for an
extension of stay that reaches the maximum 6 year limit. USCIS adjudicators
should first determine the amount of H-1B extension time that may be granted to
reach the 6-year limitation of stay, then determine if the labor certification
or I-140 petition was filed at least 365 days by the conclusion of the 6-year
limitation of stay in such instances. If so, then the one year AC21 106(a)
extension may be granted. However, in no case can an extension be granted for
more than a three-year period of time.
Evidence of
Pending Pre-PERM (ETA-750) and PERM (ETA-9089) Labor Certifications
USCIS takes
administrative notice that all labor certification applications filed with DOL
prior to March 28, 2005, have received a final determination with the exception
of still-active cases pending on appeal at BALCA or those cases still noted as
pending in the BECs’ Public Disclosure System (PDS) [http://pds.pbls.doleta.gov/
].
USCIS will accept the
following documents as evidence that an application for labor certification
filed on behalf of the H-1B beneficiary is still pending, or has been certified
and is still valid:
-
If
the labor certification is a Form ETA-750 that is still pending with DOL, a
screen-print from the BECs’ PDS that shows that the status of the labor
certification application is
In Process
or is actively
On Appeal
that
includes the name of the
petitioning employer, the date that the Form ETA-750 was filed, the name of
the alien beneficiary,
and the case number assigned to the pending Form ETA-750;
or,
-
If
the labor certification is a Form ETA-9089 that was denied but is on appeal,
documentation from DOL or BALCA that shows that the labor certification is
on appeal; or
-
If
the labor certification application was certified on or before July 16,
2007, a complete copy of the Form ETA-750 or Form ETA-9089 which shows the
date of certification and a copy of the Form I-140 petition receipt notice
for the petition filed on behalf of the H- 1B beneficiary; or
-
If
the labor certification application was certified after July 16, 2007, a
complete copy of the Form ETA-750 or Form ETA-9089 which shows the date of
certification and the date upon which the labor certification will expire,
along with a copy of the Form I-140 petition receipt notice for the petition
filed on behalf of the H-1B beneficiary, if any.
If an applicant for
extension of stay cannot present a screen print from the PDS, he or she may
present a letter from DOL issued within the previous 60 days prior to the filing
of the extension petition instead. The DOL letter must explain why the PDS
screen print is unavailable and verify that an application for a labor
certification is pending.
2. AC21 §104(c)
Guidance for Aliens Subject to Per Country Visa Limitations
Pursuant to AC21
§104(c), an alien is eligible for an extension of H-1B status if the alien is
the beneficiary of an I-140 petition and would be eligible to be granted
immigrant status but for the application of per country limitations applicable
to immigrants under INA § 203(b)(1), (2) or (3). Despite the title of AC21
§104(c), referring to “one-time” protection, USCIS may grant such H-1B
extensions, in a maximum of three year increments, until such time as the
alien’s application for adjustment of status has been processed and a decision
made thereupon.
AC21 § 104(c) is
applicable when an alien, who is the beneficiary of an
approved
I-140
petition, is eligible to be granted lawful permanent resident status but for
application of a per country limitation to which that alien is subject or,
alternatively, if the immigrant preference category applicable to that alien is,
as a whole, “unavailable”. Any petitioner seeking an H-1B extension on behalf of
an H-1B alien beneficiary pursuant to AC21 §104(c) must thus establish that at
the time of filing for such extension, the alien is not eligible to be granted
lawful permanent resident status on account of the per country immigrant visa
limitations or, alternatively, because the immigrant preference classification
applicable to the alien is “unavailable”.
In order to make a
determination as to the H-1B alien beneficiary’s eligibility for an extension of
H- 1B status under the provisions of §104(c) of AC21, USCIS adjudicators are
instructed to review the Department of State Immigrant Visa Bulletin that was in
effect at the time of
filing
of the Form I-129
petition. If, on the date of filing of the H-1B petition, the Visa Bulletin
shows that the alien was subject to a per country or worldwide visa limitation
in accordance with the alien’s immigrant visa “priority date”, then the H-1B
extension request under the provisions of §104(c) of AC21 may be granted. To
establish the alien’s priority date, USCIS may accept a copy of the H-1B alien
beneficiary’s Form I-140 petition approval notice.
3. INA §
214(g)(6) Guidance relating to Concurrent Employment Requests for certain H-1B
Cap-Exempt
Aliens
H-1B “cap-exempt”
petitions, as referenced here, include petitions filed by:
-
Institutions of higher education, as defined in section 101(a) of the Higher
Education Act of 1965, 20 U.S.C. 1001(a);
-
Nonprofit organizations or entities related to or affiliated with
institutions of higher education; and
-
Nonprofit research organizations or governmental research organizations, as
defined in 8 CFR 214.2(h)(19)(iii)(C).
Petitions filed on
behalf of aliens who will be employed by certain types of educational, nonprofit
or governmental organizations (these types of petitioners are normally referred
to as “cap-exempt” because an H-1B alien employed by such an entity is not
subject to the H-1B numerical limitations) are not counted towards the numerical
limitations in INA § 214(g)(1) H- 1B.
See
section
214(g)(5)(a) and (b) of the Immigration and Nationality At (INA); and 8 CFR
214.2 (h)(8)(i)(A).
Pursuant to the
provisions of INA §214(g)(6), USCIS does not require that an alien who is cap-
exempt by virtue of the above types of employment, be counted towards the
limitation contained in 214(g)(1)(a) if they accept concurrent employment with a
non-exempt employer. INA §214(g)(6) reads as follows:
Any alien who
ceases
to be employed by
an employer described in paragraph (5)(A) shall, if employed as a nonimmigrant
alien described in section 1101(a)(15)(H)(i)(b) of this title, who has not
previously been counted toward the numerical limitations contained in paragraph
(1)(A), be counted toward those limitations the first time the alien is employed
by an employer other than one described in paragraph (5). (Emphasis added.)
Documentary evidence,
such as a current letter of employment or a recent pay stub, should be provided
in support of such a concurrent employment petition at the time that it is filed
with USCIS in order to confirm that the H-1B alien beneficiary is still employed
in a cap-exempt position.
At the time of filing
of a concurrent employment H-1B petition that is subject to the numerical
limitation of 214(g)(1)(a):
a)
If the H-1B alien beneficiary has not “ceased” to be employed in a
cap-exempt position pursuant to INA § 214(g)(5)(A) and (B), then he or she will
not be counted towards the cap.
b)
If the H-1B alien beneficiary has “ceased” to be employed in a cap-exempt
position, then the alien will be subject to the H-1B numerical limitation, and
the concurrent employment petition may not be approved unless a cap number is
available to the alien beneficiary.
c)
If
USCIS determines that an H-1B alien beneficiary has ceased to be employed in a
capexempt position after a new cap-subject H-1B petition has been approved on
his or her behalf,
USCIS will deny any
subsequent cap-subject H-1B petition filed on behalf of the H-1B alien
beneficiary if no cap
numbers are available.
4. INA §
212(n)(2)(C)(v) Guidance Relating to Changes in Employment by H-1B Aliens who
report LCA violations
ACWIA provides for
enhanced penalties against H-1B employers who violate attestations made on a
Labor Condition Application filed with the Secretary of Labor. Among these
provisions for enhanced enforcement are measures designed to enable and
encourage H-1B workers to report employers who violate certain attestations. As
a result, §212(n)(2)(C)(v) of the Act calls for a process under which an H-1B
alien beneficiary who files a complaint regarding a violation of
§212(n)(2)(C)(iv) and is otherwise eligible to remain and work in the United
States may be allowed to seek other appropriate employment in the United States
for a period not to exceed the maximum period of stay authorized for such
nonimmigrant classification. A more formalized process for the adjudication of
H-1B petitions containing such extension requests will be incorporated into a
forthcoming rulemaking relating to various AC21 and ACWIA statutory provisions.
USCIS adjudicators
are instructed that, if credible documentary evidence is provided in support of
an H-1B petition that the alien beneficiary faced retaliatory action from his or
her employer based on a report regarding a violation of INA § 212(n)(2)(C)(iv),
then USCIS adjudicators may consider any related loss of H-1B status by the
alien as an “extraordinary circumstance” as defined by 8 CFR 214.1(c)(4). This
process may allow the alien additional time to acquire new H-1B employment and
remain eligible to apply for a change of status or extension of stay
notwithstanding the termination of employment or other retaliatory action by his
or her employer.
Credible documentary
evidence should include a copy of the complaint filed by the H-1B alien
beneficiary, along with corroborative documentation that such a complaint has
resulted in the retaliatory action against the H-1B alien beneficiary as
described in 20 CFR 655.801 in pertinent part:
a)
No employer subject to this subpart I or subpart H of this part shall
intimidate, threaten, restrain, coerce, blacklist, discharge or in any other
manner discriminate against an employee (which term includes a former employee
or an applicant for employment) because the employee has--
(1)
Disclosed information to the employer, or to any other person, that the
employee reasonably believes evidences a violation of sections 212(n) or (t) of
the INA or any regulation relating to sections 212(n) or (t), including this
subpart I and subpart H of this part and any pertinent regulations of DHS or the
Department of Justice; or
(2)
Cooperated or sought to cooperate in an investigation or other proceeding
concerning the employer's compliance with the requirements of sections 212(n) or
(t) of the INA or any regulation relating to sections 212(n) or (t).
5. AC21 §106(c),
INA § 204(j) Portability Guidance relating to
USCIS Adopted
Decision,
Matter of
Al Wazzan
Pursuant to AC21 §
106(c), the approval of a Form I-140 employment-based (EB) immigrant petition
shall remain valid when an alien changes jobs or employers, if:
-
A
Form I-485, Application to Adjust Status, on the basis of the EB immigrant
petition has been filed and remained un-adjudicated for 180 days or more;
and
-
The
new job is in the same or similar occupational classification as the job for
which the petition was filed.
On October 18, 2005,
USCIS designated
Matter of Al
Wazzan,
A95 253 422 (Jan. 12, 2005) as a USCIS Adopted Decision. This AAO decision
established that a petition that is deniable (i.e. not approvable) will not be
considered “valid” for purposes of INA 204(j). An
unadjudicated
Form I-140
petition is not made “valid” merely through the act of filing the petition with
USCIS or through the passage of 180 days. A
denied
From I-140
petition is also not considered valid regardless of whether the I-140 petition
is denied 180 days or more after the filing of the adjustment of status
application and regardless of when a request to invoke the portability provision
of INA § 204(j) is made. In order to be considered valid, an I-140 petition must
have been filed on behalf of an alien who was entitled to the employment-based
classification at the time that the petition was filed, and therefore must be
approved prior to a favorable determination of a portability request made under
INA § 204(j).
The holding in this
decision is consistent with the guidance previously provided in the answer to
Question 1, Section 1, on page 3 of the December 27, 2005 memorandum entitled
Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions
and Form I-485 and H-1B Petitions Affected by the American Competitiveness in
the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313).
The guidance provided
in that section of the memorandum is now being incorporated into Chapter 20.2(d)
of the Adjudicator’s Field Manual.
III. Questions
Questions regarding
this memorandum should be directed through channels to Alexandra
Haskell in the
Business and Trade Branch of Service Center Operations.
IV. AFM Update
Accordingly, the
Adjudicator’s Field Manual is revised as follows:
1.
Paragraph (d) of Chapter 20.2 is revised to read:
20.2 Petition Validity.
* * *
(d) Form I-140 Petition Must
be Approved Prior to a Favorable Determination of a §106(c) AC21 portability
request.
On October 18, 2005, USCIS
designated
Matter of Al Wazzan,
A95 253 422 (Jan. 12, 2005) as a USCIS Adopted Decision. This AAO decision
established that a petition that is deniable (i.e., not approvable), whether or
not the petition is denied 180 days or more after the filing of the adjustment
of status application, cannot serve as the basis for approval of adjustment of
status to permanent residence under the portability provision of INA § 204(j).
An un-adjudicated Form I-140 petition is not made valid merely through the act
of filing the petition with USCIS or through the passage of 180 days. Rather,
the petition must have been filed on behalf of an alien who was entitled to the
employment-based classification at the time that the petition was filed, and
therefore must be approved prior to a favorable determination of a §106(c) AC21
portability request.
* * * * *
2.
Paragraph (d)(4) of Chapter 31.2 is revised to read:
(d) Limits on a Temporary Stay.
* * *
(4) Exemptions to Limitations
of Stay. The limitation on the total period of stay does not apply to H-1B
aliens when, as of the date of filing the extension request:
-
365 or more
days have passed since the filing of any application for labor
certification, Forms ETA-750 or ETA-9089, that is required or used by the
alien to obtain status as an EB immigrant; and the labor certification, if
approved, has not been revoked, is unexpired or has been timely filed with
an EB petition within the labor certification’s validity period; or
-
365 or more
days have passed since the filing of an EB immigrant petition that is still
pending; or
-
The alien is
the beneficiary of an approved EB immigration petition and is not able to
file to adjust status to U.S. permanent legal residence based on the
unavailability of an immigrant visa number.
* * * * *
3.
Paragraph (g)(8) of Chapter 31.3 is revised to read:
31.3 H1-B Classification
and Documentary Requirements.
* * *
(g) Adjudicative Issues.
* * *
((8) Extension of H-1B
Status Based on a Pending Labor Certification Application or Employment-Based (EB)
Immigrant Petition.
(A) Conditions for the
Granting of an H-1B Extension of Stay Under AC21 §106(a).
Assuming the alien is otherwise qualified
for an extension of H-1B status, USCIS will grant an extension beyond the 6th
year if evidence is provided that
§
A labor certification is unexpired at the time of filing of the
Form I-129 H-1B extension petition; and
§
The labor certification was filed with DOL or the I-140 petition
was filed with USCIS at least 365 days prior to the date the alien beneficiary
will have exhausted 6 years of H-1B status in the United States pursuant to
214(g)(4); and
§
The extension and the I-129 petition are otherwise approvable.
An extension of stay under AC21
§106(a) should
not be granted if,
at the time the extension request is filed, the labor certification has expired
by virtue of not having been timely filed in support of an EB immigrant petition
during its validity period, as specified by DOL.
(B) Cut off for Granting of
an H-1B Extension of Stay Under AC21 §106(a).
USCIS will grant an extension of stay to
such H-1B nonimmigrants in one-year increments until a final decision is made
to:
(i.)
Deny the
application for labor certification;
(ii.)
If the labor
certification is approved, to revoke the approved labor certification;
(iii.)
Deny the EB
immigrant petition; or
(iv.)
Grant or deny the
alien’s application for an immigrant visa or for adjustment of status.
A decision to certify, deny or
revoke an application for labor certification is made by one of the Department
of Labor’s certifying officers.
If the application is denied or
revoked, the employer is advised that there is a period of time within which the
decision may be appealed to the Board of Alien
Labor Certification Appeals
(BALCA):
-
For denied
Form ETA-750 labor certification applications filed prior to March 28, 2005,
the employer must file an appeal within 90 days.
-
For denied or
revoked Form ETA-9089 labor certification applications, the employer must
file an appeal within 30 days.
If the employer does not file
an appeal within the required timeframe, the denial becomes the final decision
of the Secretary of Labor. USCIS will not consider a DOL decision to be final
until either the time for appeal has run and no appeal has been filed or, if an
appeal is taken, the date a decision is issued by BALCA. Therefore, the labor
certification will still be considered “pending” while the denial or revocation
of the labor certification application may be appealed, or while the appeal is
actually pending, for the purposes of determining if an H-1B nonimmigrant is
eligible for extension of stay.
(C) Combined pre and post 6th
year extension requests.
USCIS will grant, in certain
instances, extensions that request time remaining towards the 6-year maximum
under 214(g)(4) and additional time allowed under AC21 § 106(a).
7th
year extension requests
under AC21 §106(a) may be made in a petition that also contains a request for an
extension of stay that reaches the maximum 6 year limit. USCIS adjudicators
should first determine the amount of H-1B extension time that may be granted to
reach the 6 year limitation of stay, then determine if the labor certification
or I-140 petition was filed at least 365 days by the conclusion of the 6 year
limitation of stay. If so, then the one year AC21 106(a) extension may be
granted. However, in no case can an extension be granted for more than a three
year period of time. If the alien beneficiary would no longer be in H-1B status
at the time that 365 days from the filing of the labor certification application
or immigrant petition has run, then the extension of stay request cannot be
granted.
(D) Documentation for Form
ETA-750 Labor Certifications Filed Pre-PERM and
Still Pending, and for Form
ETA-9089s filed in PERM.
USCIS will accept the following
documents as evidence that an application for labor certification filed on
behalf of the H-1B beneficiary is still pending, or has been certified and is
still valid:
-
If the labor
certification is a Form ETA-750 that is still pending with DOL, a
screen-print from the DOL Public Disclosure System (PDS) [http://pds.pbls.doleta.gov/
] that shows that the status of
the labor certification application is
In Process
or is actively
On Appeal
that includes the name of the petitioning
employer, the date that the Form ETA-750 was filed, the name of the alien
beneficiary, and the case number assigned to the pending Form ETA-750; or
-
If the labor
certification application was certified on or before July 16, 2007, a
complete copy of the Form ETA-750 or Form ETA-9089 which shows the date of
certification and a copy of the Form I-140 petition receipt notice for the
petition filed on behalf of the H-1B beneficiary; or
-
If the labor
certification application was certified after July 16, 2007, a complete copy
of the Form ETA-750 or Form ETA-9089 which shows the date of certification
and the date upon which the labor certification will expire, along with a
copy of the Form I-140 petition receipt notice for the petition filed on
behalf of the H-1B beneficiary, if any.
If an applicant for extension
of stay cannot present a screen print from the PDS, he or she may present a
letter from DOL issued within the previous 60 days prior to the filing of the
extension petition instead. The DOL letter must explain why the PDS screen print
is unavailable and verify that an application for a labor certification is
pending.
* * *
(10) Requests for an
extension of H-1B status under the provisions of AC21 §104(c) for aliens subject
to per country visa limitations.
USCIS interprets AC21 §104(c)
as only applicable when an alien, who is the beneficiary of an approved I-140
petition, is eligible to be granted lawful permanent resident status but for
application of the per country limitations. Any petitioner seeking an H-1B
extension on behalf of an H-1B alien beneficiary pursuant to §104(c) of AC21
must thus establish that at the time of
filing
for such extension, the alien
is not eligible to be granted lawful permanent resident status on account of the
per country immigrant visa limitations.
USCIS will accept a copy of the
H-1B alien beneficiary’s Form I-140 petition approval notice which shows that an
immigrant visa is not immediately available to him or her based on the approved
petition’s priority date as evidence of the H-1B alien beneficiary’s eligibility
for an extension of H-1B status under the provisions of §104(c) of AC21.
Adjudicators are instructed to
review the Department of State Immigrant Visa Bulletin that was in effect at the
time of the
filing of the Form
I-129 petition in which a request for an §104(c) of AC21 H-1B extension request
is made. If the H-1B alien beneficiary is shown to be ineligible to be granted
lawful permanent resident status because of the per country visa limitations,
then the H-1B extension request under the provisions of §104(c) of AC21 may be
granted for a maximum of three year increments, until such time as the alien’s
application for adjustment of status has been processed and a decision made
thereupon.
* * *
(11) H-1B Portability
Provisions of INA § 214(n), AC21 § 105.
INA § 214(n), provides that a
nonimmigrant who was previously issued an H-1B visa or provided H-1B
nonimmigrant status may begin working for a new H-1B employer as soon as that
new employer files a nonfrivolous H-1B petition on the
nonimmigrant's behalf, if:
-
The
nonimmigrant was lawfully admitted to the United States;
-
The
nonfrivolous petition for new employment was filed before the end of their
period of authorized stay; and
-
The
nonimmigrant has not been employed without authorization since his or her
lawful admission to the United States, and before the filing of the
nonfrivolous petition.
In order to port, an alien must
meet all the requirements of INA § 214(n), including the requirement that the
new petition must be filed while the alien is in a “period of stay authorized by
the Attorney General.”
Successive H-1B portability
petitions may be filed for an alien while the previous H-1B petitions remain
pending (i.e. creating a “bridge” of H-1B petitions). However, to be approved
every H-1B portability petition must separately meet the requirements for H-1B
classification and for an extension of stay. In the event that the alien’s
nonimmigrant status has expired while the petitions are pending, the denial of
any filing in the string of extension of stay and/or change of status filings
undercuts the “bridge”, meaning that any petition to extend or change status
that was filed after the expiration of the alien’s status that is denied will
result in the denial of all successive requests to extend or change status.
The status of a dependent of a
principal nonimmigrant that is working pursuant to portability benefits is
linked to the status of the principal nonimmigrant.
* * *
(12) Changes in Employment
by H-1B Alien Beneficiary under the Provisions of INA §212(n)(2)(C)(v).
The American Competitiveness
and Workforce Improvement Act of 1998 (ACWIA), Title IV of Div. C. of Public Law
105-277, was enacted on October 21, 1998. ACWIA provides for enhanced penalties
against H-1B employers who violate attestations made on the LCA. Among these
provisions for enhanced enforcement are measures designed to enable and
encourage H-1B workers to report employers who violate certain attestations. As
a result, §212(n)(2)(C)(v) of the Act requires the creation of a process under
which an H-1B alien beneficiary who files a complaint regarding a violation of
§212(n)(2)(C)(iv) and is otherwise eligible to remain and work in the United
States may in some circumstances be allowed to seek other appropriate employment
in the United States for a period not to exceed the maximum period of stay
authorized for such nonimmigrant classification.
If credible documentary
evidence is provided in support of an H-1B petition that the H-1B alien
beneficiary faced retaliatory action from his or her employer based on a report
regarding a violation of INA § 212(n)(2)(C)(iv), then USCIS adjudicators may
consider any related loss of H-1B status by the alien as an “extraordinary
circumstance” as defined by 8 CFR 214.1(c)(4). This may allow the alien time to
acquire new H-1B employment and remain eligible to apply for a change of status
or extension of stay notwithstanding the termination of employment or other
retaliatory action by his or her employer.
Such credible documentary
evidence should include a copy of the complaint filed by the H-1B alien
beneficiary, along with corroborative documentation that such a complaint has
resulted in the termination of employment of the H-1B alien beneficiary or other
retaliatory action by his or her employer as described in 20 CFR 655.801 in
pertinent part:
(A) No employer subject to this
subpart I or subpart H of this part shall intimidate, threaten, restrain,
coerce, blacklist, discharge or in any other manner discriminate against an
employee (which term includes a former employee or an applicant for employment)
because the employee has--
(i) Disclosed information to
the employer, or to any other person, that the employee reasonably believes
evidences a violation of sections 212(n) or (t) of the INA or any regulation
relating to sections 212(n) or (t), including this subpart I and subpart H of
this part and any pertinent regulations of DHS or the Department of Justice; or
(ii) Cooperated or sought to cooperate in an investigation or other proceeding
concerning the employer's compliance with the requirements of sections 212(n) or
(t) of the INA or any regulation relating to sections 212(n) or (t).
In addition, adjudicators are
reminded that the portability provisions of AC21 §105 may also apply to the
whistleblower H-1B alien beneficiary should he or she choose to use them to seek
new employment and obtain relief.
* * *
(13) Cap Exemptions Pursuant
to 214(g)(5) of the Act. [Chapter 31.3(g)(13) added
June 6, 2006]
* * *
(D) Requests for Changes in
Employment or Concurrent Employment Requests for Certain Cap-Exempt
Aliens.
H-1B “cap exempt” petitions, as
referenced here, include petitions filed by:
-
Institutions
of higher education, as defined in section 101(a) of the Higher Education
Act of 1965, 20 U.S.C. 1001(a);
-
Nonprofit
organizations or entities related to or affiliated with institutions of
higher education; and
-
Nonprofit
research organizations or governmental research organizations, as defined in
8 CFR 214.2(h)(19)(iii)(C).
Petitions filed on behalf of
aliens who will be employed by certain types of educational, nonprofit or
governmental organizations (these types of petitioners are normally referred to
as “cap-exempt” because an H-1B alien employed by such an entity is not subject
to the H-1B numerical limitations) are not counted towards the numerical
limitations in INA § 214(g)(1).
See
section 214(g)(5)(a) and (b) of
the Immigration and Nationality At (INA); and 8 CFR 214.2 (h)(8)(A).
Pursuant to the provisions of
INA §214(g)(6), USCIS has not required that an alien who is cap exempt by virtue
of the above types of employment, be counted towards the limitation contained in
214(g)(1)(a) if they accept concurrent employment with a non-exempt
employer. INA §214(g)(6) reads as follows:
Any alien who
ceases
to be employed by an employer
described in paragraph (5)(A) shall, if employed as a nonimmigrant alien
described in section 1101(a)(15)(H)(i)(b) of this title, who has not previously
been counted toward the numerical limitations contained in paragraph (1)(A), be
counted toward those limitations the first time the alien is employed by an
employer other than one described in paragraph (5). (Emphasis added.)
Documentary evidence, such as a
current letter of employment or a recent pay stub, should be provided in support
of such a concurrent employment petition at the time that it is filed with USCIS
in order to confirm that the H-1B alien beneficiary is still employed in a
cap-exempt position.
At the time of filing of a
concurrent employment H-1B petition that is subject to the numerical limitation
of 214(g)(1)(a):
-
If the H-1B
alien beneficiary has not “ceased” to be employed in a capexempt position
pursuant to INA §§ 214(g)(5)(A) and (B), then he or she will not be counted
towards the cap.
-
If the H-1B
alien beneficiary has “ceased” to be employed in a cap-exempt position, then
the alien will be subject to the H-1B numerical limitation, and the
concurrent employment petition may not be approved unless a cap number is
available to the alien beneficiary.
-
If USCIS
determines that an H-1B alien beneficiary has ceased to be employed in a
cap-exempt position after a new cap-subject H-1B petition has been approved
on his or her behalf, USCIS will deny any subsequent capsubject H-1B
petition filed on behalf of the H-1B alien beneficiary if no cap numbers are
available.
* * * * *
4.
The AFM
Transmittal Memoranda button is revised by adding a new entry, in numerical
order, to read:
AD08-06
Chapter 20 & Chapter This memorandum revises chapters
[INSERT
31 20 and 31 regarding issues relating to
SIGNATURE the adjudication of
employment-based
DATE OF
THIS benefits under the AC21 and
ACWIA
MEMO] provisions.
Distribution List:
Regional Directors
Service Center
Directors
District Directors
Field Office
Directors
National Benefits
Center Director
Chief, Service Center
Operations
Chief, Field
Operations
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