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DHS/USCIS RIN: 1615-AC05 Publication ID: Fall 2015 
Title: Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting Highly-Skilled H-1B Alien Workers 
Abstract:

The Department of Homeland Security (DHS) is proposing to amend its regulations affecting certain employment-based immigrant and nonimmigrant classifications. This rule proposes to amend current regulations to provide stability and job flexibility for the beneficiaries of approved employment-based immigrant visa petitions while they wait to become lawful permanent residents. DHS is also proposing to conform its regulations with the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) as amended by the Twenty-First Century Department of Justice Appropriations Authorization Act (the 21st Century DOJ Appropriations Act), as well as the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA). The rule also seeks to clarify several interpretive questions raised by ACWIA and AC21 regarding H-1B petitions, and incorporate relevant AC21 policy memoranda and an Administrative Appeals Office precedent decision, and would ensure that DHS practice is consistent with them.  

 
Agency: Department of Homeland Security(DHS)  Priority: Other Significant 
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage 
Major: Yes  Unfunded Mandates: No 
CFR Citation: 8 CFR 204 to 205    8 U.S.C. 214    8 CFR 245    8 CFR 274a     (To search for a specific CFR, visit the Code of Federal Regulations.)
Legal Authority: 6 U.S.C. 112    8 U.S.C. 1154 and 1155    8 U.S.C. 1184    8 U.S.C. 1255    8 U.S.C. 1324a   
Legal Deadline:  None

Statement of Need:

This rule provides needed stability and flexibility to certain employment-based immigrants while they wait to become lawful permanent residents. These amendments would support U.S. employers by better enabling them to hire and retain highly skilled and other foreign workers. DHS proposes to accomplish this, in part, by implementing certain provisions of ACWIA and AC21, as amended by the 21st Century DOJ Appropriations Act. The 21st Century DOJ Appropriations Authorization Act, which will impact certain foreign nationals seeking permanent residency in the United States, as well as H-1B workers. Further, by clarifying interpretive questions related to these provisions, this rulemaking would ensure that DHS practice is consistent with statute.

Summary of the Legal Basis:

The authority of the Secretary of Homeland Security (Secretary) for these regulatory amendments can be found in section 102 of the Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 112, and section 103(a) of the Immigration and Nationality Act (INA), 8 U.S.C. 1103(a), which authorize the Secretary to administer and enforce the immigration and nationality laws. In pertinent part, ACWIA authorized the Secretary to impose a fee on certain H-1B petitioners which would be used to train American workers, and AC21 provides authority to increase access to foreign workers as well as to train U.S. workers. In addition, section 274A(h)(3)(B) of the INA, 8 U.S.C. 1324a(h)(3)(B), recognizes the Secretary’s authority to extend employment to noncitizens in the United States, and section 205 of the INA, 8 U.S.C. 1155, recognizes the Secretary’s authority to exercise discretion in determining the revocability of any petition approved by him under section 204 of the INA.

Alternatives:

The alternative would be to continue under current procedures without change.

Anticipated Costs and Benefits:

The proposed amendments would increase the incentive of highly-skilled and other foreign workers who have begun the immigration process to remain in and contribute to the U.S. economy as they complete the process to adjust status to or otherwise acquire lawful permanent resident status, thereby minimizing disruptions to petitioning U.S. employers. Attracting and retaining highly-skilled persons is important when considering the contributions of these individuals to the U.S. economy, including advances in entrepreneurial and research and development endeavors, which are highly correlated with overall economic growth and job creation.

Risks:

Timetable:
Action Date FR Cite
NPRM  12/00/2015 
Additional Information: 1615-AB97 will be merged under this rule, 1615-AC05.
Regulatory Flexibility Analysis Required: Undetermined  Government Levels Affected: None 
Federalism: No 
Included in the Regulatory Plan: Yes 
International Impacts: This regulatory action will be likely to have international trade and investment effects, or otherwise be of international interest.
RIN Data Printed in the FR: No 
Related RINs: Related to 1615-AB97 
Agency Contact:
Kevin Cummings
Branch Chief, Business and Foreign Workers Division
Department of Homeland Security
U.S. Citizenship and Immigration Services
Second Floor, Office of Policy and Strategy, 20 Massachusetts Avenue NW.,
Washington, DC 20529
Phone:202 272-1470
Fax:202 272-1480
Email: kevin.cummings@uscis.dhs.gov

 
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