AC21: The New H-1B Work Visa Rule

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I just filed my H-1B application. What are the next steps in the H-1B process? Some things to know about the new H-1B work visa rule.

PART II – What is the new H-1B rule?

In an effort to reform and revamp certain employment-based immigrant and nonimmigrant visa programs, the U.S. Department of Homeland Security (DHS) enacted new regulations effective January 17, 2017. These changes, typically referred to as AC21, seek to provide greater worker protections and improve the functioning of the agency in adjudicating these employment-based visa programs.
 
If you just filed your H-1B visa application, you’re probably wondering what to expect and how the new law affects you as an H-1B applicant. This post summarizes the H-1B process and how the new law can help immigrant workers. Read Part I of this article, What is the H-1B Process? here.
 
What is the new law and how can it help immigrant workers?
The new law aims to provide more protections for both foreign & U.S. workers and streamline the application and adjudication processes. This includes increasing job portability, stability and flexibility for foreign workers, as well as providing additional transparency and consistency in the implementation of the policies and practices in the H-1B program.
 
These policies include:

  • H-1B extensions of stay under AC21. The new rule allows H-1B visa holders (and their family) who are being sponsored for green cards (legal permanent residence) to extend their H-1B period of status beyond the otherwise applicable 6-year limit. 1- or 3-year extensions are granted at a time, depending on the circumstances.  
  • INA 204(j) portability. The new rule allows H-1B holders to retain their original priority dates and effectively transfer the priority date from the old I-140 petition to the new Form I-140 petitions.
  • H-1B portability. The new rule allows H-1B nonimmigrant workers to change jobs or employers within the 10- or 60-day grace period. New employment can only begin on the later of, the following two dates. Employment before the later of these two permissible H-1B portability dates is not authorized:
    1. The date USCIS receives a non-frivolous I-129 petition for new H-1B employment from a new employer; or
    2. On the requested start date of such a petition.
  • Counting against the H-1B annual cap. The final rule allows an H-1B visa holder to recapture time greater than 24 hours spend outside the U.S. and add it on to the requested period on the extension application. In addition, it exempts from the lottery, foreign workers with previously approved H-1B applications previously counted against the cap, as well as those who have been physically present and residing abroad the immediate prior year.
  • H-1B cap exemptions. The final rule clarifies and expands on the definition of “affiliated entities,” “governmental research organizations,” and refines the definition of a “cap-exempt employer,” making the adjudication more liberal in context.
  • Protections for H-1B whistleblowers. The final rule provides protections for H-1B nonimmigrant workers who are disclosing information in aid of, or otherwise participating in, investigations regarding alleged violations of Labor Condition Application (LCA) obligations in the H-1B program. It also allows them to provide documentary evidence to USCIS to demonstrate that their resulting failure to maintain H-1B status was due to “extraordinary circumstances.”
  • Form I-140 petition validity. The final rule provides that Form I-140 petitions that have been approved for 180 days or more would no longer be subject to automatic revocation based solely on withdrawal by the petitioner or the termination of the petitioner's business, increasing worker protections. 

The process can be complicated and depending on your situation, could be document-intensive and require working with a lawyer to discuss an overall immigration strategy. Contact us to discuss the appropriate immigration strategy for your case.


Rasoulpour Torregoza is the law firm for immigrants, by immigrants. We are founded on the motto of LegalEase: we do away with the legal jargon and make law easy to understand, so you can focus on what’s important to you – going for your American Dream.
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