[http://thevisabulletin.com/2008/ac21-acwia-memo-from-uscis-neufeld/]
USCIS Memo on AC21/ACWIA — Guidance for I-140 and I-129 H-1B Petitions, and Form I-485 Applications
USCIS recently issued guidance for the implementation of two new rules: the PERM Rule and the PERM Fraud Rule.
I reformatted the text of the memo and pasted it below to make it easier to read and skip to relevant sections.
–Source: USCIS.gov–
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:
- H-1B petitions in connection with the extension provisions of AC21 §106(a);
- H-1B petitions in connection with the extension provisions of AC21 §104(c) for aliens subject to per country visa limitations;
- H-1B petitions requesting concurrent employment on behalf of certain H-1B cap-exempt aliens;
- INA § 212(n)(2)(C)(v) Guidance Relating to Changes in Employment by H-1B Aliens who report LCA violations; and
- 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, 20051, 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:
- Deny the application for labor certification;
- If the labor certification is approved, to revoke 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.
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. AD
08-06: Supplemental Guidance Relating to Processing Forms I-140
Employment-Based Immigrant Petitions and I-129 H-1B Petitions, and Form
I-485 Adjustment Applications.
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):
- 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.
- 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 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).
Download USCIS Memo