On October 24, 2016, US Department of Homeland Security submitted its final rule regarding the green card portability provisions of AC21 to the Office of Management and Budget (OMB) for review. This is the last step before the final version of the regulation goes into effect.
By way of background, in May 2015, the Department of Homeland Security (DHS) issued a notice that employment-based visa modernization was added to its regulatory agenda. This advanced the priorities that had been outlined by DHS Secretary Johnson in response to President Obama’s executive actions announced in November 2014. The proposed rule was issued and comments were collected. DHS has completed its response to the comments and has sent the final rule to OMB for approval.
The new rule intends to clarify AC21 portability, remove unnecessary restrictions on the ability to change jobs or progress in careers, and to provide additional relief to workers subject to I-485 adjustment application delays. In short, the regulation codifies the portability provisions that were included in The American Competitiveness Act of the 21st Century which was passed in 2000. That law provides for individuals in the final stage of the permanent resident process to change positions to the “same or similar” positions when they are the beneficiary of an approved I-140 immigrant visa petition and their I-485 application for adjustment of status has been pending at least 180 days. Since the passage of AC21, foreign nationals and employers have relied on a series of memoranda for guidance on what “same or similar” means. The regulation when it is issued will provide regulatory guidance to USCIS examiners as well as to employers and foreign nationals in the immigration process.
Other key provisions of that were included in the proposed regulation and are likely to be included in the final regulation include:
- Safe guarding immigrant visa petition approvals that are withdrawn more than 180 days after adjudication;
- Add potential grace periods of up to 60 days for people in E-1, E-2, E-3, H-1B, H-1B1, L-1 or TN status so that they can accept new jobs more easily when a job ends.
- Allow those currently in E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status with EB-1, EB-2 or EB-3 approved immigrant petitions to apply for work authorization for one year if an immigrant visa isn’t available, and if the person can demonstrate “compelling circumstances.” Potential circumstances considered “compelling” include: serious sickness or disabilities; employer retaliation; major disruption to an employer; or “other substantial harm to the applicant”.
Jackson & Hertogs will continue to keep our clients apprised of future developments. Do not hesitate to contact us for a consultation.
